1. This is an appeal arising from a suit to enforce a simple mortgage, and the only question which arises is whether the mortgage in this ease was proved. It appears that the written statement which was filed by the two contesting defendants, defendants Nos. 1 and 2, was that they did not admit the legal execution of the document. Subsequently when defendant No. 1 went into the witness box, he did indeed admit that he as well as defendant No. 2 had signed a document conveying the property. But at the trial there was an issue framed as to whether the plaintiff proved the execution of the suit mortgage bond, and even though the mortgage was required to be attested and does purport to be attested by two witnesses, the plaintiff did not call any attesting witnesses to prove the execution. He called instead one witness who said that he was present at the time when the mortgage was executed, though he had not attested it and proved the signature of the executants to the bond as well as the signatures of the attesting witnesses. The learned trial Judge then came to the conclusion that even though signatures had been proved, it had not been shown that the bond was properly attested, because the sole witness who was examined to prove the execution including the attestations did not say that executants signed in the presence of the attesting witnesses, or the attesting witnesses signed the instrument on receiving from the executants a personal acknowledgment of the execution of the instrument. Similarly there was nothing to show that the attesting witnesses attested the mortgage bond in the presence of the executants. He, therefore, dismissed the plaintiff's suit. This decision of his was confirmed in appeal by the learned District Judge.
2. Now, I am quite prepared to concede that there was no specific denial of the execution of the document by the contesting defendants, and consequently it was not necessary to call an attesting witness to prove the execution. But execution had to be proved, and inasmuch as the contesting defendants specifically stated by their written statement that they did not admit the legal execution of the bond, the effect is that they did not admit the mortgage, that is, a mortgage executed in accordance with the law; and inasmuch as the mortgage is required to be attested by two attesting witnesses it had to be proved not only that the mortgagors had signed the mortgage-deed but that the mortgage-deed was attested by the two witnesses as that word has been defined in the Transfer of Property Act. It is contended on behalf of the appellant plaintiff that inasmuch as this document was a registered document and the contesting defendants did not specifically deny its execution, the proviso to Section 68 of the Indian Evidence Act came into play, and it was not necessary to call an attesting witness to prove the document. That may be conceded. But Mr. Datar, who appears on behalf of the appellant, urges that the meaning of the words 'it shall not be necessary to call an attesting witness,' in the proviso is really speaking to dispense with any proof of attestations whatsoever. In support of this contention he relies upon the decision of this Court in Yakubkhan v. Guljarkhan (1927) 30 Bom. L.R. 565. In that case the mortgage-deed was attested by three witnesses, two of whom were dead at the date of the suit. One of the two had attested the mark of the executant lady before the Sub-Registrar made below her acknowledgment as executant. The defendants contended that they had no knowledge of the mortgage and that if it was really a genuine document it was a hollow one. They did not specifically deny the execution of the mortgage by the mortgagor. It was held that there having been no specific denial by defendants of execution of the deed, it was not necessary to call an attesting witness to prove it, by virtue of Section 68 of the Indian Evidence Act, as amended by Act XXXI of 1926. It was held further that even if there was a specific denial, the execution of the document was properly proved, because even though the only attesting witness who was alive and was called said that the mortgagor was not present when he attested it, one Roshankhan who had received from the mortgagor an acknowledgment of her mark before the Sub-Registrar could also be regarded as an attesting witness and the writer of the document was also an attesting witness because he had signed immediately after the execution by Mirjubibi his own name under the description of the executant's mark. There is nothing, however, in this case which would suggest that where execution of a mortgage-deed is not specifically denied it is not necessary to prove that the document was either executed or that the document was properly attested. It is true that when on p. 569 the second paragraph begins with the words
But even if the written statement be taken to be a specific denial, we are of opinion that execution of the document is properly proved within the meaning of Section 68 of the Indian Evidence Act,
plausibility is lent to the argument that what this Court intended to decide was that absence of a specific denial dispenses with proof of the document at all.
3. I do not think, however, that that is the correct interpretation of Section 68. If a document is required by law to be attested, it is necessary to prove that the document is executed in the sense that there is signing pf the document by the executant, where he is in a position to sign, plus there is attestation of the document within the meaning of the word 'attest' as defined in the Transfer of Property Act. Had it not been for Section 68 as it originally was, it would have been proper to prove the execution of a mortgage-deed by calling any person who was present at the time when the mortgage was executed. If he was in a position to say that at that time the mortgagor signed the document; that he signed in the presence of the attesting witnesses, and the attesting witnesses signed in his presence, it would have been permissible to prove the execution of the mortgage by the evidence of a person who was not an attesting witness. The English law, however, which probably was the law which was followed prior to the enactment of the Indian Evidence Act, required that where a document was required by law to be attested, the attesting witness must be called, the ground being that he was the person whom the parties had agreed to make a witness of the execution of the document. Section 68, as it originally stood, embodied this provision of the English law of evidence. It required that in the case of a document which was required by law to be attested, an attesting witness would have to be called in order to prove the execution of the document if one was alive.
4. This, however, obviously caused unnecessary waste of public time and money and often cost to the parties where there was no specific denial of a mortgage. Parties may frequently be confronted with mortgages executed not by themselves but by others. In such cases they would often require formal proof of a mortgage. The proviso provides that if the document was registered such proof can then be given by any evidence.It is not necessary for that purpose to call an attesting witness. That was, as a matter of fact, the view which was taken inB.M.A.R.M. Chettyar Firm v. V. Htaw I.L.R.(1932) Rang 26, and it seems to me that that is also the view which was taken by their Lordships of the Privy Council in the ease of Lala Kundan Lal v. Musammat Musharrafi Begam (1936) L.R. 63 IndAp 326 : 38 Bom. L..R. 783. That was a case in which the defendant put the plaintiffs to proof of the mortgage-deed. The mortgage-deed was a registered deed, and the issues which their Lordships of the Privy Council stated were (p. 332):.(1) whether the plaintiffs have given sufficient proof of due attestation to satisfy the terms of Section 3 of the Transfer of Property Act 'and each of whom has signed the instrument in the presence of the executant;'
(2) whether the plaintiffs have given sufficient proof in the case of an illiterate purdanashin lady that she thoroughly comprehended and deliberately of her own free will carried out the transaction.
If Mr. Datar's contention is correct, the document, being a registered document and there being no specific denial, there could arise no issue like the issues which were framed by their Lordships of the Privy Council, because the document would require no proof. But the matter does not rest with their Lordships raising the issues in the case of Lala Kundan Lal v. Musammat Musharrafi Begam. They stated (p. 333) :
It was, however, obligatory upon the plaintiffs to give due proof of the mortgage deed, and they claim to have done so by the evidence of the two attesting witnesses, Deonath and Badri,....
It seems to me quite clear, therefore, that what the proviso does is that it makes it unnecessary, when a document required by law to be attested is not specifically denied, to give proof of the due execution including therein the attestation by calling an attesting witness. It is permissible for the person who wishes to rely upon the document to give other proof of it; but it does not dispense with proof of due execution altogether.
5. It is true that in this case defendant No. 1 admitted in her evidence that she hadsigned the document. It is contended that in that case Section 70 of the Indian Evidence Act has application, and as far as defendant No. 1 at any rate is concerned, it must be taken that there was sufficient proof of the execution of the document as against her. In support of this contention reliance is placed upon the ruling of the Chief Court of Lucknow in Raja Ram v. Thakur Rameshwar Bakhsh Singh I.L.R. (1936) Luck 109. But it seems to me that the matter is concluded by the decision of their Lordships of the Privy Council in Hira Bibi v. Ram Hari Lal In that case there was evidence led with regard to the due execution of a mortgage, and it appeared that one of the executants was a pardanashin woman, who had signed the deed behind the parda, and that the persons who signed as attesting witnesses were outside the parda and did not see her affix her signature. At the trial she did admit having signed the deed. It was held that Section 70 of the Indian Evidence Act had no application to a document which was not duly attested. It is obvious therefore that before the provisions of Section 70 applied, it is necessary in the first instance to show that the document is an attested document. That necessarily means proved to be duly attested. It is only when it having been shown that the document was an attested one there is the further fact that its execution by himself is admitted by a party to the document that in spite of the fact that the law requires the document to be attested the admission by the party would be sufficient proof of its execution as against him. Before, therefore, advantage could be taken of the provisions of the section, it must be proved by the party who relies upon it not only that the document purports to be attested but that the document in the first instance is a duly attested document, and in this ease such proof is lacking.
6. It is true that the Chief Court of Lucknow tries to distinguish its judgment by pointing out that in the case before their Lordships of the Privy Council there was evidence to show that as a matter of fact the document was not attested. That undoubtedly was one of the reasons for saying that the document was not an attested document. But that does not alter the fact that before the section applies evidence must be led to show that the document is an attested one.
7. It is true that Section 70 must not be given a construction which would render it nugatory. But it does not seem to me that it would render the section nugatory to give it the meaning that it applies only to documents proved to have beer, attested. There is a proviso to Section 68 which dispenses with the necessity of. calling an attesting witness when the document is shown to be attested and a party to it admits execution by himself. It is true that due attestation has to be proved, but that can be proved in any other manner. The section was in the Act ever since its commencement in 1872, and it was enacted to get rid of the requirement of the English law, which was very strict where a document was attested. In Johnson v.Mason (1794) 1 Esp. 89. Lord Kenyon is reported to have said (p. 89) :. that Lord Mansfield had once by surprise allowed a man to acknowledge his own deed in court, without calling the subscribing witness; but that he afterwards changed his opinion, and held that a party should not be allowed to acknowledge his deed until it had been proved by the subscribing witness.
This rule was not confined to cases in which the document was executed by a person who was not a party to the suit. In Whyman v. Garth (1853) 8 Ex. 803 the plaintiff's counsel produced the mortgage-deed; but instead of proving its execution by the attesting witness, he called the defendant, who had been subpoenaed, and asked him whether he had not executed the deed. This question was objected to by the defendant's counsel, and the Judge overruled it. Pollock, C.B., who delivered the judgment of the Bench, to which the matter ultimately went, held that where a defendant has put the execution of the deed in issue, he could not be called and compelled as a witness to prove the fact. This rule was presumably followed when the Indian Evidence Act was enacted, and Section 70 of the Act is intended to get over this strict requirement of the English law. If a party wishes to tender a document required by law to be attested in evidence and proves in any manner the attestation, which he can do, for example, by swearing himself to the attestation if he was present when the document was executed, then ho can prove, by obtaining an admission, of the executant, that the document was executed by himself. The section would not be rendered nugatory by following this construction, because but for it, a mortgage, for 'example, could not be proved if it was put in issue, except by calling an attesting witness. It can now be proved against the defendant who admits execution by himself, that is, admits having himself signed the document, but does not admit that the mortgage document is properly attested by proving the attestation in any manner, not necessarily by calling the attesting witness.
8. In that case, both the lower Courts were obviously right in coming to the conclusion that in this case in the absence, of any evidence that the document was signed by the executants in the presence of attesting witnesses and the attesting witnesses had signed the document in the presence of the executants, due attestation of the document was not proved and there was no mortgage in law.
9. Mr. Datar, who appears on behalf of the appellant, points out, however, that it appears that on the date upon which the actual hearing of this suit started the plaintiff produced the mortgage-deed. He had not produced it till then, because apparently he had some difficulty in doing so. Then the learned pleader, who appeared on behalf of the defendants, stated that he had no objection to the document being exhibited, whereupon the document was exhibited. It appears to me, However, that the consent of a party to the exhibition of a document merely implies that where the document purports to be signed by one or more of them that they have all signed it. It involves no admission whatsoever that any signatures have been made in the presence of anybody. That is what is required in order to show that there was a valid attestation of the document. It has got to be remembered that in this ease from the first the contesting defendants have challenged that there was legal execution of the mortgage. There was a specific issue framed upon the question of execution, and in spite of the admission of the learned pleader, who appeared on behalf of the defendants, the plaintiff led evidence of one witness in order to show that the document was executed by defendants Nos. 1 and 2 and also attested by two attesting witnesses. It is impossible to take in the circumstances that when the learned pleader for the defendants gave a purshis stating that the document may have been executed what happened was that a proper execution of the mortgage was admitted by the defendant.
10. Mr. Datar says, however, that he would like to make an application for leading additional evidence in order to show that no attesting witnesses were called in this case for the reason that one of the attesting witnesses was already dead and the other witness could not be found, and the writer was also apparently dead. It is no doubt true that in case the persons who could speak of the due execution of the document are all dead or are not available, in that case Section 69 of the Indian Evidence Act would come into play. Then such evidence ought to have been led at the trial Court. But it does appear that in the appeal memo in the appeal to the District Court it has been mentioned that one of the attesting witnesses and the writer were dead and the other attesting witness could not be found. It does not appear, therefore, that this contention is made for the first time now. But all the same the evidence ought to have been led at the trial, and some reason must be shown why it was not led. A formal application for permission to lead additional evidence in these circumstances would be necessary. Mr. Datar says that he would make such an application for which I give him a fortnight's time. I do not say that I will grant that application.
June 19, 1956.
11. Mr. Datar has now made an application for permission to allow him to lead additional evidence, and the application is opposed; but there does not seem to be any substance in it. It is admitted that one of the attesting witnesses is dead and so also the writer is dead, though the question of the writer being alive is not material for the purpose of application of Section 69 of the Indian Evidence Act. It is contended on behalf of the applicant that the other attesting witness could not be found and cannot be found now. On the other hand, Mr. Hungund, who appears on behalf of the respondents, contends that they never made any attempt to secure the other attesting witness. But it is pot mentioned before me that the other attesting witness can be found. It is obvious, therefore, that there is no substance in the objections to the application.
12. I, therefore, allow the application and direct the learned trial Judge to take evidence upon the only contesting point, that is, whether the attesting witness who is not shown to be dead, that is, Shivappa, can be found, and if cannot, since when. Evidence to be certified to this Court within a period of three months from the receipt of these papers in the trial Court.