AYENATI SHIKDAR Vs. MOHAMMAD ESMAIL

JUDGEMENT

(1.) The plaintiff in this suit seeks to recover from the defendants the amount due on a mortgage bond. In her written statement defendant 1 says that she executed the bond and admitted execution before the Sub-Registrar understanding it to be a power of attorney in the name of the plaintiff to manage her properties. She contends that the bond was not legally attested and executed. Defendant 2 was a benamidar of the plaintiff. Defendant 3 files a written statement supporting that of defendant 1 and adding that he had purchased the properties to the knowledge of the plaintiff. The Court of first instance decreed the suit except for a deduction of a portion of the claim for interest. The appellate Court dismissed the appeal and, allowing the cross appeal on account of interest, decreed the suit in full. In this appeal it is urged that inasmuch as one of the attesting witnesses to the bond when examined, proved hostile, the remaining attesting witness who is alive should have been examined to prove the bond, and, not having examined him, the Court was not entitled to invoke the provisions of Section 71, Evidence Act, and prove the bond by other evidence.

(2.) Both the Courts below have held that it is only necessary to call one attesting witness before having recourse to other evidence under Section 71 of the Act. This view appears to be in accordance with the wording of Secs.68 and 71 of the Act and was adopted in a recent decision of this Court : Hason Ali V/s. Gurudas Kapali . It is true that good authorities have held that it is not clear whether, under Section 71, Evidence Act, other evidence can be given to prove the document where the attesting witness called denies, or does not recollect, the execution of the document and there is another attesting witness alive, subject to the process of the Court, and capable of giving evidence : of. Field, Edn. 6, p. 236. However, had the intention of the legislature been otherwise, one would have expected to find Section 71 of the Act differently worded as it cannot be supposed that when Section 68 and 71 of the Act were drafted cases in which one or more of the attesting witnesses would prove hostile were not anticipated. I therefore think that, in the present case, the Court was justified in taking other evidence as to the execution of the document. Of course Section 71 does not relieve the plaintiff from the necessity of producing the best evidence available. Here the remaining attesting witness was summoned, but did not appear, and the plaintiff has given reasons which the Court below has accepted for not taking further steps to produce him. Had he been the only witness it would undoubtedly have been the duty of the plaintiff to exhaust all the processes of the Court in order to produce him, but since an attesting witness had been produced, other evidence became admissible under Section 71, Evidence Act and the plaintiff was not bound to produce another attesting witness whom there were grounds for him to believe hostile.

(3.) There was some doubt whether it was necessary to decide as to the applicability of Section 71, Evidence Act, in this case inasmuch as there is some ground for holding that the written statements of defendant 1 and defendant 3 amount to an admission of execution of the bond by defendant 1, so as to make Section 70, Evidence Act, applicable and avoid the necessity of proving execution as against them. However, the admission was certainly not clear and unqualified. Defendant 1 says that she executed the bond and admitted execution before the Sub-Registrar, but did so understanding it to be a power of attorney in the name of the plaintiff to manage her properties, and that she would not have signed it had she been aware of its contents. This is, I think, not such an admission as to make Section 70, Evidence Act, applicable, though it is an important piece of evidence in proof of execution, there being no specific allegation of fraud. In the circumstances the Courts below were justified in finding that execution of the mortgage bond by defendant 1 was proved. There seems to be also no ground for withholding interest at the bond rate. The appeal is accordingly dismissed with costs. Mitter, J.