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Mathra Pershad and anr. Vs. Cheddi Lal - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1915All254; 29Ind.Cas.363
AppellantMathra Pershad and anr.
RespondentCheddi Lal
Cases ReferredCollector of Mirzapur v. Bhagwan Prashad
Excerpt:
evidence act (i of 1872), sections 68, 72 - mortgage-bond not properly attested, if admissible in evidence--simple money-bond. - .....the case, in my opinion, fell within the purview of section 72 of the evidence act. for a simple money bond it is not necessary that it should be attested by witnesses. as the bond in this case was not so attested it was a valid document as a simple money bond and was admissible in evidence. this was held by a pull bench of the madras high court in the case of pulaka veetil muthalakulangara kunhu moidu v. thiruthiipalli madava menon 1 ind. cas. 1 : 32 m. 410 : 13 m.l.j. 584 and by the calcutta high court in tofoluddi peada v. mahar ali shaha 26 c. 78. the case of veerappa kavundan v. ramasami kavundan 30 m. 251 : 17 m.l.j. 213 : 2 m.l.t. 175 has, under the circumstances mentioned above, no application to the present case and it is unnecessary for me to say whether i agree with the.....
Judgment:

P.C. Banerji, J.

1. This appeal arises out of a suit brought by the plaintiff-respondent to realise the amount of a bond, dated the 23rd of August 1910, alleged to have been executed by one Ramdhan Lal in favour of the plaintiff and his deceased father, Ramadhan. Ramdhan Lal is dead. The suit was brought against the appellants who are in possession of Ramdhan Lal's property under a Will. The bond on the face of it purported to be a mortgage bond and the suit was brought in the Court of first instance to enforce the mortgage. That Court was of opinion that the document had not been duly attested as required by Section 59 of the Transfer of Property Act and could not be treated as a mortgage. For that reason alone the Court dismissed the suit. The plaintiff appealed and in the Appellate Court he abandoned the claim for sale of the mortgaged property and asked for a simple money decree in respect of the debt. The learned Judge found that the document had been duly executed by Ramdhan Lal and that he had received the amount of it which was paid in the presence of the Sub-Registrar. He made a money-decree in favour of the plaintiff, to be recovered from the assets of Ramdhan Lal in possession of the defendants-appellants. This appeal has been preferred by the defendants and the only contention on their behalf is that in view of the provisions of Section 68 of the Evidence Act the bond was not admissible in evidence for any purpose. I am unable to agree with this contention. As a mortgage it was undoubtedly necessary that the document should be attested by at least two witnesses and that one of those witnesses should be called. But it appears from the evidence of the scribe and of the witness Mata Ghulam that the document in question was not attested at all. On the contrary the scribe I roved that Ramdhan Lal signed the document at the house of the scribe where it was written, and took it to the witnesses afterwards and got their signatures on it after admitting execution. This evidence of the scribe shows that the document was not attested in accordance with the provisions of Section 59 of the Transfer of Property Act. Therefore it could not be treated as a mortgage. It is only in the case of a document which required to be attested and was attested that under Section 68 of the Evidence Act it was necessary to call an attesting witness, as the document in this case was not so attested, Section 68 had no application, and the case, in my opinion, fell within the purview of Section 72 of the Evidence Act. For a simple money bond it is not necessary that it should be attested by witnesses. As the bond in this case was not so attested it was a valid document as a simple money bond and was admissible in evidence. This was held by a Pull Bench of the Madras High Court in the case of Pulaka Veetil Muthalakulangara Kunhu Moidu v. Thiruthiipalli Madava Menon 1 Ind. Cas. 1 : 32 M. 410 : 13 M.L.J. 584 and by the Calcutta High Court in Tofoluddi Peada v. Mahar Ali Shaha 26 C. 78. The case of Veerappa Kavundan v. Ramasami Kavundan 30 M. 251 : 17 M.L.J. 213 : 2 M.L.T. 175 has, under the circumstances mentioned above, no application to the present case and it is unnecessary for me to say whether I agree with the decision in that case. There can be no doubt that the bond in this case contained a, personal covenant and the plaintiff is entitled to a money decree in enforcement of that covenant. The learned Vakil for the appellant has referred to the Full Bench ruling of this Court in Collector of Mirzapur v. Bhagwan Prashad 18 Ind. Cas. 31 : 35 A. 164 : 11 A.L.J. 141 but that case has apparently no bearing on the case before me. The terms of the document in that case were peculiar and it was held that under those terms there could not be a personal decree against the executant of the document. The appeal is, in my opinion, without force. I dismiss it with costs including fees on the higher scale.


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