1. This is a defendant's-appeal arising out of a suit for sale on the basis of a mortgage-deed dated 8th October 1928, for Rs. 5,600, payable in five years, executed by Bindeshri Prasad in favour of the plaintiff, Panchayati Akhara. The document carried interest at annas 14 per cent per mensem, and also provided that if the mortgagor did not pay the interest within the stipulated period of five years, the mortgagee was entitled to realize the entire amount of the mortgage debt, either within the stipulated period, or after the. stipulated time. The present suit was instituted on 11th October 1932, and there was a clear allegation in the plaint that the mortgagor had not paid the interest as agreed upon.
2. The claim was resisted by defendant 1, the mortgagor, on the ground that the suit was premature, and further on the ground that the executant had not made his signature on the deed in the presence of the marginal witnesses of the document in suit, and that the completion and the execution of the document in suit were not made as provided by Section 59, T.P. Act; hence, in accordance with law, no mortgage in respect of the property in suit was effected, and the said property cannot be sold by auction. His sons, in addition to the pleas taken by their father, also pleaded that the mortgage debt was without legal necessity. The trial Court framed several issues, the second of which was, 'Whether the deed in suit was duly executed according to law and is for consideration.' It held that the suit was not premature and that there was legal necessity for the debts. As to the plea of want of due execution according to law, it merely remarked:
The defendants admitted the execution of the mortgage-bond in suit. In the face of this admission of execution, no attesting witness need be produced to prove the document.
3. The defendants have come up in appeal, and the only plea urged on their behalf is that the due attestation of the mortgage-deed had not been proved. We find from the record that when the case name up for hearing on 7th March 1933, the plaintiff's counsel made the statement that he would not produce any evidence, as he did not consider it necessary to produce any witness in the first instance. Accordingly the defendants produced three witnesses who were examined, including defendant 1, Bindeshri Prasad Himself, who stated that when he signed the document, no attesting witnesses were present, and that none of the marginal witnesses signed it in his presence. The plaintiff then produced two witnesses, but none of them said anything about the attestation of the document. An attesting witness had apparently been Summoned, but he was not produced. It seems to us that the learned Subordinate Judge has taken a wrong view of the law. The execution of a document is one thing, and the attesting of it as required by law is quite another thing. As was laid down by their Lordships of the Privy Council in Hira Bibi v. Ram Hari Lal 1925 52 IA 362, a document required by law to be attested must be proved to have been signed by the executant thereof in the presence of the attesting witnesses; and admission by the executant under Section 70, Evidence Act of his signature on the document does not dispense with the proof of its attestation as required by law.
4. The proof of execution is required by the provisions of the Evidence Act. Under Section 68, if a document is required by law to be attested, it cannot be used as evidence until one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to the process of the Court, and capable of giving evidence. By Act 31 of 1926 a proviso has been added to this section that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered...unless its execution by the person by whom it purports to have been executed is specifically denied. Now Section 68 required the calling of a witness before the document could be used as evidence at all, and the proviso merely lays down that the calling of an attesting witness would not be necessary for the purpose of proving execution of any document when the execution is admitted by the executant. This section in no way dispenses with the necessity of proving attestation, where the execution is admitted, but the attestation is specifically denied. Section 70 also relates to the sufficiency of the proof of the execution of the document when the party admits it, and does not refer to the proof of attestation at all. The position has been made clear by the pronouncement of a Full Bench of this Court in Lachman Singh v. Surendra Bahadur Singh 1932 ALJ 653. Although the proviso to Section 68 does not appear to have been specifically referred to, there can be no doubt that the learned Judges had that proviso in their minds. It was laid down at pp. 657-658 that:
If the question be whether the document did create a mortgage or gift or not, it must be proved that the requirements of law as contained in Section 59 and Section 123, T.P. Act, have been complied with.... If the validity of the mortgage be specifically denied in the sense that the document did not effect a mortgage in law, then it must be proved by the mortgagee that the mortgage-deed was attested by at least two witnesses.
5. We are accordingly of the opinion, that it was the duty of the plaintiff to prove the due attestation of this document, even though the execution of the document, namely, the genuineness of the signature on it, was admitted by the defendants. Although it was not incumbent on the plaintiff to examine an attesting witness, he could have proved it by other evidence. There being no evidence in proof of the attestation, the document has not been proved to have (been duly attested. The learned Counsel [for the plaintiff suggested that a fresh 'opportunity should be allowed to the [plaintiff, and the case be sent down to the Court below in order to enable him to produce further evidence to prove the attestation. As the plaintiff's counsel declined to produce any attesting witness in the first instance, and also in spite of the deposition of the defendant he did not produce any further evidence, even assuming that the plaintiff had a tight to produce any rebutting evidence at all, we cannot allow a fresh opportunity to the plaintiff to fill up the gap in the evidence.
6. The suit however has been brought within six years of the registered mortgage-deed. The document contains a personal covenant to pay the amount with interest. There can therefore be no doubt that the plaintiff is entitled to money decree against the executant, Bindeshri Prasad. We accordingly allow this appeal in part, and modifying the decree of the learned Subordinate Judge, grant to the plaintiff a money decree, with interest at the stipulated rate, up to the date of the suit, against the executant, Bindeshri Prasad. The plaintiff would further be entitled to interest at 6 per cent per annum, simple, on the consolidated amount till the date of realization. The plaintiff's relief for the enforcement of the charge on the property is disallowed, and the suit is dismissed as against the sons. As regards costs, inasmuch as the bulk of the costs was incurred in connexion with the issues on which the plaintiff has succeeded, we direct that the plaintiff should receive his full costs from defendant 1 in the Court below. The plaintiff should pay the costs of the sons in both the Courts and bear his own costs of the appeal and defendant 1 should bear his own costs.