1. This is a second appeal by a defendant Banwari Lal, against a decree of the learned District Judge of Farrukhabad who decreed the suit of the plaintiff for sale on a simple mortgage dated 10th April 1912. This deed purports to have bean executed for Rs. 600 by one Mt. Bilaso in favour of Gopi Nath. The plaintiff sued Mangala Prasad as the legatee of Mt. Bilaso under a will. The appellant Banwari Lal applied to be made a defendant and claimed to be a reversioner of this property along with Mangala Prasad on the death of Mt. Bilaso. The last mala owner being Parbhu Lal, the husband of Mt. Bilaso, the defendant claimed that Mt. Bilaso had only the right of a Hindu widow in this property, but the plaintiff claimed that she was the absolute owner and had full power to dispose of the property by will.
2. The questions which have been argued before us in appeal are firstly that there was no' finding as to legal necessity and that Mt. Bilaso had only the rights of a Hindu widow, and secondly that it is not proved that the mortgage deed was duly executed. In regard to the first point it is a fact that the lower appellate Court and the Court of first instance stated that no finding as regards legal necessity was required although that was one of the issues, because those Courts considered that Mt. Bilaso had an absolute right as owner in this property. Without expressing any opinion on this matter we proceed to consider the second point argued in appeal.
3. The evidence which was tendered to prove the mortgage deed consisted firstly in calling a witness, Banwari Lal. He was one of the three persons whose signatures appear on the deed of mortgage as attesting witnesses. But when Banwari Lal was called he said that Mt. Bilaso had not put her thumb impression on the mortgage deed in his presence and that he merely put his signature on the mortgage deed as Mangali Prasad the karinda of the lady asked him to do so. It is clear therefore that Banwari Lal, although he signed as an attesting witness was not an attesting witness within the meaning of attesting witnesses laid down in Section 3, T. P. Act. The plaintiff also tendered his own evidence to the effect that Mt. Bilaso put her thumb impression on the mortgage deed in his presence and in the presence of Badri Prasad and Mangala Prasad defendant, whose names also appear as attesting witnesses on the document. But this evidence of the plaintiff is not sufficient for the purpose of Section 3, T. P. Act, because the plaintiff does not state that these attesting witnesses made their signatures in the presence of Mt. Bilaso. Moreover it has been pointed out by learned Counsel for the appellant that this evidence is not admissible to prove the execution of the document under Section 71, Evidence Act, because Section 71 only applies:
if the attesting witness denies or does net recollect the execution of the document.
4. Now in the present case no attesting witness has been called because, as we have pointed out, Banwari Lal is not really an attesting witness. Accordingly before Section 71 could apply it was necessary for the plaintiff to comply with Section 68, Evidence Act, and to call as a witness one at least of the attesting witnesses.
5. We consider therefore that on the evidence on the record the document has not been properly proved. The learned District Judge considered that advantage could be taken by the plaintiff of the proviso introduced to Section 68, Evidence Act (Act 31 of 1926). But this Act did not come into force until 18th September 1926 and the present case was disposed of by the learned Munsif on 10th February 1926. Accordingly we consider that it would not be correct to apply an Act which was passed subsequent to the trial of the case to the procedure in the case.
6. A further argument was made that certain admissions had been made in the written statement of the defendant. It is true that the defendant Mangala Prasad did admit in para. 4 of the additional pleas that there had been execution of the document. But he said that it had been executed without Mt. Bilaso understanding the nature of the document. The appellant before us, Banwari Lal, specifically stated in para. 2 of the additional pleas that the execution of the document was not admitted. He then proceeded in para. 3 to plead that the deed of mortgage was without legal necessity and in para. 4 that undue advantage had been taken of Mt. Bilaso and execution of a fictitious document obtained.
7. We consider that it was perfectly regular for this defendant Banwari Lal to put forward these alternative pleas and that in view of his plea in para. 2 it must be taken that he did not admit the execution of the document.
8. In the circumstances of this case we consider that the proper course will be to set aside the decrees of the learned Munsif and of the learned District Judge and to send this case back to the Court of the Munsif with directions to re-admit it and to try it afresh and dispose of it according to law. Parties will be entitled to produce fresh evidence as if the trial were beginning a new from the date of filing the pleadings. We consider that the learned Munsif should consider the question of the title of Mt. Bilaso and he should also come to a finding on the question of legal necessity, that is, we consider that the Munsif should frame an additional issue as to whether Mt. Bilaso possessed only rights of a Hindu widow in the property or as to whether Mt. Bilaso was full owner of this property and we also consider that whatever his finding on this point, he should also come to a finding on the issue No. 2 as to whether there was any legal necessity for Mt. Bilaso to execute this mortgage. Costs incurred hitherto in the case will be costs in the case.