1. This appeal has been filed against the decree passed by the learned Special Judge, First Grade, Aligarh, under Section 14, U.P. Encumbered Estates Act. Rani Jassa Kunwar is the widow of Raja Sheoraj Singh who had considerable zamindari property in the district of Moradabad. The Raja had died indebted. He had executed a mortgage for a sum of Rs. 40,000 on 25th September 1920 in favour of Sahu Gulab Das and others. This, mortgage carried interest at eight annas per cent. per mensem, compoundable six monthly. On 17th August. 1923 he had executed a second mortgage for Rs. 12,000 in favour of the same creditors. The interest reserved in the second mortgage was rupee one per cent, per mensem with six monthly rests. After the death of the Raja, the properties left by him were inherited by Rani Jassa Kunwar, as a Hindu widow. On 18th March 1931 Sahu Gulab Das and others filed a suit (No. 21 of 1931 in the Court of the Subordinate Judge, Moradabad) for the realisation of the amount due under the mortgage. The total claim was for Rs. 58,626-6-0. The Rani contested the suit on various grounds, which it is not necessary to set out here, but the suit was ultimately decreed on 28th April 1931 and a preliminary decree for Rs. 64,160-0-3 was passed in favour of the plaintiffs. Under the decree this amount was payable by 28th day of October 1931 and in default the decree-holder was entitled to apply for a final decree for sale. The decree carried, future interest at the rate of six per cent, per annum until realisation. The Rani made, certain payments and from time to time filed applications for postponement of the. preparation of the final decree on the ground that she was arranging to pay the decretal amount. Only one of such applications dated 9th April 1932, has been included in out printed record at p. 51. In this application she mentioned that she was prepared to pay a sum of Rs. 6000 by the month of June 1934 and prayed that further time be granted to her for payment of the balance by instalments. The reason given, for her inability to pay was the slump in prices of grain and scanty produce. Ultimately, however, no further extension was granted and the final decree was prepared on 5th January 1933. This final decree was for only Rs. 53,761 as some payments had been made after the preliminary decree. Having failed to gain any further time from Court, the case of the creditors is, that the Rani approached the creditors through her manager, Tika Ram, and on 12th January 1933 the mortgage deed, now in question, was executed for Rs. 53,761. It would be noticed that it was for the exact amount due under the decree which had been passed on 5th January 1933. The mortgage carried interest at ten annas per cent, per mensem with half yearly rests. The Rani in her deposition admitted that she had expected that she would be able to pay up this bond from the income of the property and it was therefore that she executed this fresh mortgage. It is clear that the Rani was doing her best to save the property from being sold and after she had failed to get further time from the Court she executed this mortgage so that her property might be saved and in the meantime it might be possible for her to pay up the amount from the income of the property.
2. On 5th September 1936, Rani Jassa Kunwar filed an application under Section 4, Encumbered Estates Act, before the Collector of Aligarh. In that application she mentioned the amounts due under the mortgages executed by her husband, and then added a note that the creditors had on the basis of those mortgages, filed a suit and obtained a decree and that they had on 12th January 1933 obtained a mortgage from her, a purdahnashin woman, by exercise of undue influence. The case was in due course sent to the learned Special Judge, First Grade, Aligarh, and the applicant, Rani Jassa Kunwar, filed a written statement before him under Section 8, Encumbered Estates Act, on 21st October 1936. In this written statement she followed the same procedure, that is, she mentioned the mortgage deeds executed by her husband and then added a note that on the basis of those mortgages the creditors had obtained a decree against her and then, by exercise of undue influence, had obtained from her the mortgage dated 12th January 1933. Sahu Gulab Das, the mortgagee, died on 19th December 1936, leaving four sons and a widow. A written statement was filed on their behalf on 2nd February 1937 in which they claimed that the mortgage dated 12th January 1933 was duly executed after mature deliberation and after consultation with her well wishers and Rani Jassa Kunwar was not entitled to go behind the same. They claimed that a sum of Rs. 70,331-12-9 was due to them up to 5th September 1936, on which date the Rani had filed her application under Section 4, Encumbered Estates Act, before the Collector of Aligarh. They also claimed pendente lite and future interest on this sum from 5th September 1936. The learned Special Judge on 14th July 1941 held against the applicant that the deed was obtained from her by undue influence and decreed the claim of Sahu Narain Das and others for Rupees 70,360-13-6, with pendente lite and future interest at 3 per cent, per annum till realization.
3. Against that decree this appeal was filed by Rani Jassa Kunwar and by her two nephews (brother's sons), Subedar Singh and Ganesh Singh. Ganesh Singh having died during the pendency of this appeal the names of his sons were substituted. Subedar Singh and Ganesh Singh claimed that they were secured creditors under a mortgage dated 20th June 1931. Their names were included in the list of creditors in the application filed on behalf of the Rani under Section 4 as well as under Section 8, Encumbered Estates Act. They, however, did not put in their claim under Section 10, Encumbered Estates Act, till 23rd March 1938, long after the time for making such claims had expired. They claimed a sum of Rs. 13,548 as due to them under the mortgage deed dated 20th June 1931. Sahu Narain Das and others representatives of Gulab, deceased, filed an objection, on 22nd September 1938, that the claim not having been filed within time must now he rejected. On 9th August 1940 the learned Special Judge passed an order condoning the delay, conditional on payment of Rs. 100 as damages to the pleader for the opposite party. This amount was paid on 24th August 1940 and it must be held that it was on that data that the claim of these creditors was actually registered. On 19th October 1940 the learned Special Judge recorded the statement of the pleaders for Subedar Singh and Ganesh Singh on one side and the pleader for Rani Jassa Kunwar on the other, and on the basis of those statements passed a decree for Rs. 12,756 in favour of Subedar Singh and Ganesh Singh with pendente lite and future interest at 3 per cent, per annum till the date of realisation. On behalf of the Rani the only plea urged by her counsel, Sir Tej Bahadur Sapru, is that the mortgage deed was executed under undue influence and was, therefore, not binding on her. Subedar Singh and Ganesh Singh's legal representatives were represented before us by Mr. Peare Lal Banerji who raised the point on their behalf that the execution of the mortgage deed was not proved according to law as against them.
4. The case of Rani Jassa Kunwar was that the suggestion for the execution of the mortgage dated 12th January 1933 came from the creditors and they threatened her that in case she did not care to execute a fresh mortgage they would sell up the property in execution of the mortgage decree. It is said that the Rani got frightened by this threat and she had no opportunity of taking independent advice and the advice given by Tika Ram was also rejected by her and she insisted on executing the mortgage by reason of the fear that she had of the forced sale. On behalf of the creditors, Narain Das and others, it has been suggested that the proposal for the mortgage came from the Rani and they consented to the mortgage, so that she might have an opportunity of paying up the decree from the income of the property. I have carefully considered all the facts and circumstances and have come to the conclusion that the proposal for the fresh mortgage came from the side of the Rani. From the recital of facts made above, it would appear that the preliminary decree for Rs. 64,000 and odd was passed on 28th April 1931 and the amount due under the decree was payable by 28th October 1931. It is admitted that the Rani made certain payments from time to time and got the preparation of the final decree postponed till about 5th January 1933. By that time she had paid about Rs. 13,000. Not being able to get further adjournment from Court, it was but natural that the creditors should be approached with the proposal for a fresh arrangement. Looking at the contents of the deed dated 12th January 1933 I find that the position of the Rani was not much altered by this mortgage. The mortgagees were getting as security the same property which was included in the previous mortgages executed by Raja Sheoraj Singh and which was included in the decree for sale under Order 34, Rule 5, Civil P.C. Under the decree the rate of future interest was 6 per cent, per annum simple, while under the mortgage deed the rate was 10 annas per cent, per mensem with six monthly rests. According to the rate of interest prevailing in this country in the year 1933, this rate of interest must be considered to be quite reasonable and was only slightly higher than the interest payable under the decree.
5. Sir Tej Bahadur Sapru has cited before us several cases of the Privy Council in support of the proposition that it is for the creditor to prove to the satisfaction of the Court that a mortgage executed by a purdahnashin woman was executed by her after fully understanding its contents and after being fully aware of her rights. The first case cited by him was the case in Faridunnissa v. Mukhtar Ahmad and he relied on a passage at pp. 710 and 711. The next case was Bank of Khulna Ltd. v. Jyoti Prokash Mitra . The other cases were Hem Chandra Roy v. Suradhani Debya , Lachhmeswar Sahai v. Mt. Moti Rani Kunwar and Peoples Bank v. Gulam Jan . It is not necessary for us to consider these cases in detail. The law must now be deemed to be well settled that it is for a creditor who relies on a document executed by a purdahnashin woman to prove, to the satisfaction of the Court, that she clearly understood the nature of the transaction; it must be her mental act, as its execution is her physical act. If the Court from all the facts and circumstances is satisfied that the document was executed by a purdahnashin woman after fully understanding her rights, then she must be deemed to be bound by the same. After having carefully considered the contents of the deed, the circumstances under which it was executed and the evidence given by Rani Jassa Kunwar and the other evidence on the record, I have come to the conclusion that the Rani was fully aware of her rights and it was in the best interest and for the protection of the estate that she executed the mortgage dated 12th January 1933. She had the advice of her manager, Tika Ram, who is an attesting witness to the deed, and the deed is also signed by Lal Singh, son of Ganesh Singh, her brother.
6. Some reliance was placed on behalf of the appellant on the evidence of Rani Jassa Kunwar and Tika Ram that the creditors at first suggested that the mortgage-deed should be executed for a sum of Rs. 50,000 and the Barn had, therefore, got purchased necessary stamps for Rs. 370 on 11th January 1933 but at the time of execution the creditors insisted on the mortgage being executed for the entire decretal amount of Rs. 53,761 and further stamps for Rs. 33-12-0 were then purchased. This fact is denied on behalf of the creditors by Ram Lal. The fact that stamps for Rs. 370 were purchased on 11th January and then stamps for Rs. 33-12-0 were purchased the next day appears from the stamps on which the mortgage-deed itself is engrossed. (It has not been shown to us, however, that for execution of a mortgage for Rs. 50,000 stamps for Rs. 370 only were needed.) It may be that the Rani at first hoped that she would be able to persuade the creditors to accept Rs. 50,000 in full payment of Rs. 53,761 due under the decree and had, therefore, purchased stamps for only Rs. 370 on 11th January and when on the next day the creditors refused to forgo any amount she had stamps for Rs. 33-12-0 more purchased, or it may be that the stamp vendor did not have the requisite amount of stamps on 11th January and therefore supplied the balance on the 12th. There is no reason, however, to suppose that the creditors ever agreed to give up Rs. 3,761. The story that the creditors had agreed to give up Rs. 3,761 goes against the case of the appellant that it was they who approached the Rani with the proposal for a fresh mortgage under a threat that if she did not agree to it, they would sell up the property in execution of the decree. I feel satisfied that the mortgage-deed was duly executed by the appellant and she is bound by the same. The question of its due execution was not raised before us on behalf of the Rani. It was, however, raised here by Subedar Singh and Ganesh Singh, the other two appellants. According to them it was necessary for the respondents to have proved the due execution of the mortgage as against them, they not having admitted the mortgage. Mr. Peare Lal Banerji on behalf of these appellants has argued that his clients are also interested, inasmuch as under the Encumbered Estates Act the Court has not only to pass a simple money decree against the debtor but also to rank all debts for priority and a secured creditor is entitled to priority as against an unsecured creditor. According to him his clients alone are entitled to be put in the list of secured creditors, while the respondents must be deemed to be unsecured creditors as they have failed to prove their mortgage.
7. It is true that the proceedings under the Encumbered Estates Act are proceedings not only between the landlord applicant on one side and each creditor on the other, but the creditors inter se are also interested in their claims as it may affect their rights in the final distribution of the assets by the Collector. Under the Encumbered Estates Act, after payment of certain debts which have been given special priority, the secured creditors have priority over the unsecured creditors. Irrespective of the question as to what property is included in the mortgage, all the secured creditors are put in one group and are entitled to have their claims satisfied out of the entire property of the landlord applicant and whatever is left is available to the unsecured creditors to satisfy their debts. Where property is insufficient to satisfy the claims of all the secured creditors, their rights are affected by inclusion, in their class, of creditors who are not secured and who should rightly be included in the last group in order of priority, that is, of unsecured creditors. The creditors, however, do not always dispute the claims of each other and it is only sometimes that they file objections. We have already seen that the respondents Narain Das and others filed objections to the claim of Subedar Singh and Ganesh Singh on the ground that the claim was time-barred. From the record, it does not appear that Subedar Singh and Ganesh Singh ever filed any objection to the claim put forward by Narain Das and others. The learned Special Judge framed the first set of issues on 22nd September 1938. Subedar Singh and Ganesh Singh had filed their written statement on 23rd March 1938. In their written statement, which is at p. 85, nothing is said against the claim of Narain Das and others, nor does it appear that they ever filed any objections, before the learned Special Judge, to the claim of Narain Das and others. On 9th December 1938, for some reason which does not appear from the record, a second set of issues were again framed and a new issue which was the first issue was, whether the mortgage bond dated 12th January 1933 was duly executed for consideration. On 10th May 1939 the landlord applicant filed an application that the evidence of the parties may first be taken only with reference to this first issue before she was asked to produce evidence on the other issues. This application was granted and 29th May 1939 was fixed for hearing of this issue. Before that date, however, the Presiding Officer had been transferred and the new Special Judge found on the record two sets of issues, one set framed on 22nd September 1938 by Mr. Childayal and a second set of issues framed on 9th December 1938 by his successor. Mr. Hardeo Singh, Special Judge, before whom the case came up on 29th May 1939 held that it was unnecessary to have two sets of issues and redrafted the same. On the pleadings before him he found that the issue 1 struck on 9th December 1938 which was in these words 'whether the mortgage bond dated 12th January 1933 was duly executed for consideration' was unnecessary and struck it out and allowed only three issues to remain which were as follows:
(1) Whether the claim of Subedar Singh and Ganesh Singh is time-barred and whether Sahu Narain Das and others (creditors No. 1) could raise this plea?
(2) Whether any undue influence was exercised on Rani Jassa Kunwar by creditor No. 1 as regards the execution of the mortgage-deed dated 12th January 1933?
(3) What debts, if any, are due to each set of creditors and how are those debts to be ranked?
On 14th September 1939 an application was filed on behalf of Rani Jassa Kunwar that notice of her application had not been sent to Mt. Manno, widow of Gobind Das, and it was necessary to send a separate notice to her. Sahu Narain Das and others filed an objection to this application on 2nd January 1940 in which they said that Mt. Manno had no right as her husband, Govind Das, had died as a member of a joint Hindu family. The Rani's statement was recorded on 14th April 1940 on commission. On 6th August 1940, another application was filed on behalf of Rani Jassa Kunwar that Mt. Manno was a necessary party to the proceedings and her name must be added. No final orders were, however, passed on this application and the evidence of Tika Ram was recorded on 19th August. While Ram Lal, a witness for the creditor-respondents, was in the witness-box, the attention of the Court was drawn to this application of 6th August 1940 and the Court adjourned the case and gave permission to Rani Jassa Kunwar to file an amended written statement, evidently with respect to her case that Mt. Manno had also an interest in the mortgage. On 18th October 1940, Rani Jassa Kunwar filed an amended written statement in which she alleged that Mt. Manno Kunwar was entitled to a one-sixteenth share in this mortgage and she not having put in a claim within time, the other defendants were not entitled to more than fifteen-sixteenths. She added further a plea in this written statement, that the mortgage deed was not duly executed and completed. After this amended written statement was filed, the learned Special Judge added a fourth issue in these words:
Whether the husband of Mt. Manno Kuer died separated from his father and brothers and so Manno is entitled to a fifth share in the mortgage debt?.
8. The evidence in the case was concluded on 19th October 1940 and the judgment was delivered on 14th July 1941. At the trial before the learned Special Judge, the mortgage-deed was put to Tika Ram, a witness for the Rani and an attesting witness to the deed, who said 'Mt. Jasso Kunwar executed mortgage, Ex. A-1 dated 12th January 1933.' The witness identified thumb-mark of the lady and his signature. Ram Lal, an attesting witness to the mortgage, who was produced on behalf of the mortgagees, said, 'When the deed was complete Jassa Kunwar affixed thumb-mark and then we attested. I am a blind man for two or three years.' Mr. Peare Lal Banerji has argued that the evidence of Tika Ram and Ram Lal, even if accepted, does not prove the due attestation of the mortgage according to law. Unfortunately the system of keeping a double record has been 'discontinued in this province, and all that we have before us is the Judge's notes of evidence. The learned Special Judge has not recorded the statement of witnesses in full but has only made brief notes of the same from which it is difficult to find out what the witnesses had actually said. The learned Special Judge had, as we have already said, struck out the issue framed by his predecessor, as regards the execution of the mortgage deed, on the ground that the issue was unnecessary. Learned Counsel for the opposite party has relied on the fact that Rani Jassa Kunwar, in her application filed under Section 4 and her written statement filed under Section 8 of the Act, had admitted the mortgage and the only plea raised on her behalf was that the mortgage was executed under undue influence. It was, therefore, argued that the learned Special Judge had rightly struck out issue 1 specially as the appellants, other than Jassa Kunwar, had never entered any defence and had not contested the claim of the respondents, while Rani Jassa Kunwar had admitted the execution of the mortgage. We carefully went through not only the printed record but the manuscript record also, and Mr. Banerji appearing on behalf of the appellants was not able to point out to us any paper from which it would appear that his clients had ever filed any objection or shown any interest in these proceedings between Rani Jassa Kunwar and Narain Das and others.
9. If a document is filed in Court, unless it is admitted by the other side under Orders 12 and 13, Civil P.C., the party producing the document has to prove it according to law. In the case of documents, other than documents which the law requires to be attested, a person producing such document has, when lie alleges that the document bears the signature or has been written wholly or in part by any person, to prove his allegations unless those allegations are admitted by the other side : see Section 67, Evidence Act. There is mo special mode of proof prescribed, the signature or the handwriting may be proved by the production of persons who have means of knowing the signature or the handwriting or by production of experts or by comparison with the admitted signature or handwriting of the executant. In the case of documents required by law to be attested, not only the signature has to be proved but it has to be proved that the document was duly attested. There are, however, two exceptions to this rule. Under Section 70, Evidence Act, if execution is admitted by the executant of the deed it is not necessary, as against him, to prove attestation. The other exception is in Section 69, Evidence Act, that if no such attesting witness can be found or if the document was executed in the United Kingdom it is only necessary to prove the signature of the executant and that the attestation of at least one attesting witness is in his handwriting. If I may, with great diffidence, say so, the words 'can be found' are not very appropriate and, to my mind, they must be interpreted to include not only cases where the witness cannot be produced because he cannot be traced but cases where the witness for reasons of physical or mental disability or for other reasons, which the Court considers sufficient, is no longer a competent witness for the purpose as is provided in Section 68, Evidence Act. The law requires one more formality that a document required by law to be attested shall not be admitted in evidence until one attesting witness, at least, has been called for proving its execution provided there be such a witness alive and subject to the process of the Court and capable of giving evidence (Section 68, Evidence Act). The word 'execution' must of course include attestation as required by law. If, however, the document was registered and its execution was not specifically denied it is not necessary to call an attesting witness.
10. In this case Rani Jassa Kunwar had admitted execution of the mortgage-deed and it was, therefore, not necessary to prove attestation against her. The document was a registered document, and its execution was not specifically denied by any person and so it was not necessary to call an attesting witness. Two attesting witnesses, however, Tika Ram and Ram Lal, were produced who gave evidence proving not only that the applicant signed the deed but that they had affixed their signatures by way of attestation. The deed itself on the face o it, bears the attestation of three attesting witnesses Lal Singh, Tika Ram and Hub Lal who have noted, either that the applicant signed in their presence or acknowledged her sig. nature and they attested the deed in her presence and in the presence of each other. I feel perfectly satisfied that the deed has been duly proved.
11. If the other appellants Subedar Singh and Ganesh Singh had appeared in the trial Court and had objected to this document being taken in evidence without further proof, we have no doubt that the respondents could have given further evidence of the due execution of this document, as there were as many as nine attesting witnesses to the deed. Prom the record it does not appear that they ever raised any such point in the Court below or appeared at any stage before the trial Court to contest the mortgage in favour of Narain Das and others. In this view of the matter we do not feel disposed to allow Subedar Singh and Ganesh Singh to raise this new point before us. Mr. Banerji on their behalf argued that he has objection to the respondents being put in the list of secured creditors along with his clients who were the only other secured creditors. From the record it appears, however, that Subedar Singh and Ganesh Singh produced no evidence to prove the deed in their favour. The decree in their favour was passed merely on the admission of the pleader for Rani Jassa Kunwar that Rs. 12,756 were due to them up to 5th September 1936. If we had allowed this point to be raised on behalf of the appellants, we would have been bound, in all fairness, to allow this point to be raised on behalf of Narain Das and others that the mortgage deed of Subedar Singh and Ganesh Singh was also not proved according to law and they were also not secured creditors. In that case, the position would again be the same, that both the creditor-appellants and the creditor-respondents would be placed in the same class. After considering the entire evidence and the materials in the case, I am satisfied that the mortgage-deed has been duly proved and the decree passed by the lower Court must be affirmed. I would, therefore, dismiss this appeal with costs.
12. I agree that for the reasons given by my learned brother there is no force in this appeal and that it should be dismissed with costs.