RAMCHANDRA DHONDBAJI GUJAR Vs. JHIBAL SHIORAM BURADKAR

JUDGEMENT

(1.) THE Judge of the Small Cause Court, Nagpur, dismissed this suit on a bond, dated 13th April 1935 on the ground that it fell under Section 2(5)(b), Stamp Act, and therefore required attestation and that under Section 68, Evidence Act, the examination of an attesting witness was necessary to prove execution. The learned Counsel for the non-applicant concedes that Section 68, Evidence Act, does not apply and he can only say that it was open to the lower Court to hold that the evidence of an attesting witness was desirable to prove the claim. The case proceeded ex parte and the judgment does not show that the case was dismissed for the reason that the lower Court thought that the plaintiff's evidence was in itself in-sufficient.

(2.) UNDER Section 2(5), Stamp Act, a bond is said to include three classes, the second of which is applicable in the present case. The definition, it is to be noted, is not exhaustive, nor is it proper to infer from this definition of "bond" in the Stamp Act which deals with stamp matters only, that it means that such a document is required by law to be attested. In the case of mortgages and gifts it is clearly so stated in the Transfer of Property Act and in the case of wills in the Succession Act, but a bond as such is not an instrument required by law to be attested. Therefore, it is Section 72, Evidence Act, which applies and not Section 68. If the law had ever been interpreted otherwise, there would surely have been some case in which the point had been so decided and also the prevalent practice of proving bonds in suit would have been different. I hold that the proof in this ex parte case was adequate. The judgment of the lower Court is set aside and the plaintiff's claim will be decreed with costs. The costs in this application will be on the non-applicant. Counsel's fee Rs. 15.