JAIKARANDAS AGARWALLA Vs. PROTAPSING AGARWALLA

JUDGEMENT

(1.) This is an appeal on behalf of defendants 2 and 3 and it arises out of a suit commenced by the plaintiff for enforcement of a mortgage bond. The facts lie within a short compass and are, for the most part, undisputed. The defendant 1 executed a mortgage bond in favour of the plaintiff on 15 January 1935 to secure a loan of Rs. 2500. Shortly after this defendants 2 and 3 obtained a money decree against defendant 1 for a sum of about Rs. 1299 in the Court of the Munsif at Jalpaiguri. The date of the decree is 7 February 1935. The decree was executed in money execution Case No. 58 of 1935 and the properties included in the mortgage bond were attached on 22 February, 1935. The plaintiff mortgagee preferred a claim but it was dismissed for default as he did not appear at the date of hearing. In the result the attached properties were sold and they were purchased by defendants 2 and 3 for a sum of about Rs. 300 only. The plaintiff has now instituted the present suit and has prayed for sale of the mortgaged property and also for setting aside the order of dismissal for default passed in the claim proceeding. The suit was contested by defendants 2 and 3 only and their contentions substantially were of a three-fold character. In the first place, it was contended that the mortgage bond was not executed and attested according to law. In the second place, it was pleaded that the bond was a collusive and a benami affair and that it was executed in order to defraud the creditors of defendant 1 and was not supported by any consideration. The third ground raised was that the mortgaged property was a coparcenary property belonging to a Mitakshara family of which defendant 1 was only one of the members. It was said that he had no authority to mortgage it and the transfer was totally void in law. All these defences were overruled by the trial Court which gave the plaintiff a decree. On appeal by defendants 2 and 3 the lower Appellate Court reduced the amount of, interest from 18 per cent, to 10 per cent, per annum but on all other points affirmed the deuision of the trial Judge. It is against this decision of the District Judge of Jalpaiguri that the present second appeal has been preferred.

(2.) Mr. Bagchi who appears for the appellants has argued before us in the first place that no mortgage decree could be given to the plaintiff inasmuch as the mortgage bond failed for want of proof of attestation. It appears that there were two witnesses to the mortgage bond both of whom were examined by the plaintiff. The attesting witnesses however turned hostile and although they admitted their signatures on the bond, they denied having seen the executant signing the deed or obtaining any acknowledgment from him. The Courts below were of the opinion that these witnesses were gained over by the present appellants and relying on the evidence of the plaintiff on the point of execution and attestation they decreed the plaintiff's suit. Mi. Bagchi argues that under Section 71, Evidence Act, when the attesting witnesses denied the execution of the document, attestation could not be proved by any other evidence and he has further argued in this connection that, at any rate, the plaintiff himself was an incompetent witness to speak to attestation.

(3.) As regards the first branch of the appellant's contention it may be pointed out that Section 71 is one of the exceptions to the rule relating to proof of documents, required by law to be attested, which is laid down to Section 68, Evidence Act. That Section requires that execution of a document compulsorily attestable must be proved at least by one attesting witness if he is alive and subject to the processes of the Court. This is a stringent rule and whether it is based on the ground that the attestor's testimony is the most desirable and trustworthy evidence, or that he being the witness agreed upon between the parties cannot be dispensed with, there is no doubt that the rule is mandatory and it cannot be relaxed except under circumstances provided for in the Act itself. One of such exceptional circumstances is to be found in Section 71, Evidence Act, which lays down that if the attesting witness who is called, denies execution or, refuses to prove the document or turns hostile the execution may be proved by other evidence. Mr. Bagchi contends that under this Section other evidence may be let in only to prove execution but not to prove attestation. This contention, in my opinion, is manifestly untenable. The same meaning must be given to the word execution in Section 71 as in Section 68, Evidence Act. It has been held in several cases that in the case of a document which is not valid without attestation execution not only means signing by the executant but it means and includes attestation as well which is the last of the series of acts necessary to give completeness and formal validity to the deed Arjun Chandra V/s. Kailas Chandra (1923) 10 A.I.R. Cal. 149, and Hari Nath Ghose V/s. Nepal Chandra Rai (1937) 41 C.W.N. 306. In this view it would be necessary to call an attesting witness under Section 68 not merely to prove the signature of the executant but to prove attestation as well and if such witness turns hostile or refuses to prove execution or attestation other witnesses may be called for the same purpose. If, on the other hand, we accept the view of Mr. Bagchi that execution does not include attestation the result, in my opinion, would be exactly the same. In that case Section 68 would not make it compulsory on the plaintiff to examine any attesting witness at all for the purpose of proving attestation and there would be no necessity to invoke Section 71 in case the attesting witness proves hostile. The first branch of Mr. Bagchi's contention therefore must fail.