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Radha Ballab and anr. Vs. Deoki Nandan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1932All320; 140Ind.Cas.115
AppellantRadha Ballab and anr.
RespondentDeoki Nandan and ors.
Excerpt:
- - 4. we are of opinion that this is not a proper reading of the proviso to section 68. if any of the defendants to a suit denies that any of the alleged executants executed the deed, the plaintiff must produce one of the marginal witnesses to prove the document this was not done and therefore the plaintiffs failed to prove the bond as a mortgage bond......but they did not examine any marginal witness. the courts below came to the conclusion that the bond in suit was not proved as a mortgage bond because the provisions of section 68, evidence act, had not been complied with by calling one of the marginal witnesses. in this court it has been contended that under the proviso added to section 68 by the amending act of 1926 it was not necessary for the plaintiffs to produce an attesting witness, inasmuch as the deed was a registered one and none of the executants of the deed had denied its execution.4. we are of opinion that this is not a proper reading of the proviso to section 68. if any of the defendants to a suit denies that any of the alleged executants executed the deed, the plaintiff must produce one of the marginal witnesses to.....
Judgment:

Mukerji, J.

1. This appeal is the plaintiffs' and arises out of a suit filed by them for recovery of money by sale of certain property said to have been mortgaged on foot of a mortgage bond dated 29th December 1921 alleged to have been executed by the first three defendants to the suit. Defendant 4 was the son of one of the executants and defendant 5 was an attaching creditor of the other defendants.

2. Two of the defendants, namely, defendant 3 and the attaching creditor defendant 5 alone contested the suit. They denied the execution of the bond and the payment of the consideration and defendant 3 further said that defendant 1 who was a friend of one of the plaintiffs had got the bond brought about for some motive unknown to the defendant.

3. The plaintiffs adduced evidence by examining one of themselves and the scribe of the bond, but they did not examine any marginal witness. The Courts below came to the conclusion that the bond in suit was not proved as a mortgage bond because the provisions of Section 68, Evidence Act, had not been complied with by calling one of the marginal witnesses. In this Court it has been contended that under the proviso added to Section 68 by the Amending Act of 1926 it was not necessary for the plaintiffs to produce an attesting witness, inasmuch as the deed was a registered one and none of the executants of the deed had denied its execution.

4. We are of opinion that this is not a proper reading of the proviso to Section 68. If any of the defendants to a suit denies that any of the alleged executants executed the deed, the plaintiff must produce one of the marginal witnesses to prove the document This was not done and therefore the plaintiffs failed to prove the bond as a mortgage bond.

5. The Courts below found that the execution of the bond by the first three defendants had been proved. But they also found that payment of any consideration money beyond a sum of Rs. 50 was not established. The learned Counsel for the appellants contended that the execution of the bond having been proved, it was for the defendants to prove that the consideration was not paid. This may be a correct proposition of law, as to which we express no opinion. The fact however remains that the plaintiffs did adduce evidence and their evidence showed that no consideration beyond the sum of Rs. 50 had passed. In the circumstances, the defendants are not precluded from urging that no consideration passed. This is in accordance with at least two cases decided in this Court namely Makund v. Bahori Lal [1881] 3 All. 824 and Mohammad Shafi Khan v. Mohammad Moazzum Ali A.I.R. 1923 All. 214.

6. The appeal fails and it is hereby dismissed with costs.


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