A. Banerji, J.
1. The question raised in this second appeal by the defendant is an interesting one. A mortgage deed is executed. When it comes to the proof of the deed the only surviving attesting witness is not examined. Instead the plaintiff examines the lawyer who drafted the mortgage deed and helped in the execution of the deed. Admittedly, the lawyer had not signed the deed as an attesting witness. Both the courts below held the execution of the deed duly proved and also justified the absence of the attesting witness on the ground of his having been won over. The suit on the basis of the mortgage deed has been decreed by the courts below.
2. In this appeal learned counsel for the appellant contended that the execution of the mortgage deed has not been duly proved and the evidence of other witnesses could not be looked into or relied upon by the court below unless the case came under the proviso to Section 68 or fell within the ambit of Section 17 of the Evidence Act. Learned counsel also contended that the provisions of Section 68 are mandatory and cited certain reported decisions. Learned counsel also contended that it was incumbent on the appellant to have summoned the attesting witness and if he denied the execution of the mortgage deed or declined to give evidence of the execution on the ground of the loss of memory then and then only other evidence could be led. As such the other evidence relied upon by the court below is not relevant. If the attesting witness denied the execution of the mortgage deed he would be liable to be declared hostile and cross-examined under Section 154 of the Evidence Act. Learned counsel for the respondent strenuously argued that the case came within the proviso of Section 68 of the Act as the document, the mortgage deed was a registered document and it was not necessary to call an attesting witness in proof of the execution of the document. He also contended that unless the execution of the document had been denied by the person concerned, it was not necessary to call an attesting witness. It was further contended by the learned counsel that since the plaintiff was fully aware that the attesting witness had been won over it was not necessary to call such a witness for he would have in any event denied the execution of the document. The Court was, therefore, justified in looking into other evidence.
3. Having heard the learned counsel for the parties I am satisfied that there has been a miscarriage of justice in this case. Section 68 of the Evidence Act is mandatory. It reads.:--
'68. Proof of execution of document required by law to be attested -- If a document is required by law to be attested it shall not 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:' I am omitting the proviso at the moment. The above provision makes it clear that the document which is required by law to be attested, should be proved by one of the attesting witnesses. Secondly, where at least one of the attesting witnesses is alive, he has to be examined provided he is subject to the process of the Court and is capable of giving evidence. In the case of Jiwan Singh v. Dalip Singh : AIR1929All389 a Division Bench of the Court has expressed an opinion that a document which is required by law to be attested cannot be used as evidence until at least one attesting witness has been called. This view still holds good and on law to the contrary has been shown. A mortgage deed is required to be attested by at least two attesting witnesses where the principal money secured is one hundred rupees or upwards.
4. There is no dispute that Bansidhar, one of the attesting witnesses, is very much alive and is subject to the process of the Court and is also capable of giving evidence. He has not been examined. It is stated that Bansidhar was a brother of a tenant of the defendant. It was because of this reason that the plaintiff had formed an idea that he would not support the execution of the document and therefore had not been called to give evidence.
5. It will be relevant to refer to the proviso to Section 68: it reads:--
'Provided 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 in accordance with the provisions of the Indian Registration Act. 01908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.'
6. The above proviso lays down a rule where the provisions of Section 68 may not be followed if there is a document which is duly registered under the registration Act, 1908 and it is not a Will and further its execution by the person by whom it purports to have been executed is (not) specially denied. If a registered document, not being a will, is specially denied, it will be necessary to call an attesting witness to prove the execution of the document. In the present case the execution of the document is specially denied. It is denied by a person who has stepped into the shoes of the alleged executant. There being a special denial of the execution of the document the proviso would not be applicable.
7. Section 71 of the Act makes it clear that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. This rule provides an exception to the rule enunciated in Section 68. But to make this provision applicable it is evident that the attesting witness will have to appear in Court as a witness. Until he appears as a witness there is no question of his denying the execution of the document, or not recollecting the execution of the document. If the witness sits at home and is not examined because there is an apprehension that he may not support the execution of the mortgage deed, in that event there is a failure to produce the evidence which is required under Section 68 of the Act. Consequently, Section 71 cannot come into play, There is no question of leading any other evidence about the due execution of the document in such a case. Other evidence can be led only when the attesting witness who has been called, fails to prove the execution of the document by reason of the denial of his own signature or that of the executor or having no recollection about the execution of the document. Consequently, until that stage is reached no other evidence can be led or relied upon to prove the due execution of the mortgage deed. In the present case the courts below have fallen into this error. They have proceeded to examine other evidence and rely on it without the attesting witness, who is alive and available, having entered the witness box and denied the execution of the document. The evidence of the scribe in the circumstances of the case could not be relied upon for the proof of the due execution or the mortgage deed.
8. A witness can become hostile only when he makes a statement contrary to the case taken by the party who has summoned him. It is then open to the party examining him to pray to the court to declare him hostile and seek the permission of the Court under Section 154 of the Evidence Act for cross-examining him. The party may then through the cross-examination elicit from him the proof of his case. Section 71 makes it clear that if the attesting witness repudiates his signature or that of the executor or docs not recollect the execution of the document, then other evidence may be led to prove the due execution of the document. Consequently, the courts below were not right in allowing the party to lead or in relying on the other evidence in proof of the due execution of the document. The contention that the plaintiff was certain that the attesting witness had been won over and would not give evidence in her favour is not a sufficient ground for the consideration of other evidence. In view of what has been stated above the due execution of the mortgage deed cannot be held to have been proved. The finding given by the courts below is thus vitiated by an error of law. Since the due execution of the mortgage deed was not proved the decree passed by the courts below must be set aside.
9. In the result, therefore, the appeal succeeds and is allowed. The decree passed by the courts below is set aside and the suit stands dismissed. However, in the circumstances of the case I direct the parties to bear their own costs of this appeal.