Skip to content


Mt. Durgawati Kunwar Vs. Jagannath Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All680; 118Ind.Cas.663
AppellantMt. Durgawati Kunwar
RespondentJagannath Prasad and ors.
Cases ReferredShamu Pattar v. Abdul Kadir Ravuthan
Excerpt:
- - we are satisfied, however, that there is no force in the appellant's contention. 7. it is perfectly clear, however, that this ruling and all the other rulings to the same effect must now be treated as obsolete. if any one of the other attesting witnesses signed it in the executant's presence, after receiving from him a personal acknowledgment of his signature, then all legal requirements in respect of attestation are satisfied......of the money due on a mortgage-deed dated 20th october 1911 purporting to have been executed by sidh gopal deceased husband of mt. durgawati, defendant 1, in favour of mata prasad and ram prasad, defendants 2 and 3. the mortgagees sold their rights to baijnath prasad by sale-deed dated 16th january 1914. the plaintiff bought the mortgagee rights for rs. 700 at an auction sale held on 20th april 1925 in execution of a money decree against sheo prasad (defendant 4), minor son of baijnath prasad. the plaintiff claims rs. 8,000 on the basis of this mortgage. the suit was originally decreed ex parte on 16th february 1926 against sidh gopal and the other defendants, excepting mt. durgawati. after sidh gopal's death mt. durgawati, his widow, got the ex parte decree set aside upon proof that.....
Judgment:

1. This was a suit for recovery of the money due on a mortgage-deed dated 20th October 1911 purporting to have been executed by Sidh Gopal deceased husband of Mt. Durgawati, defendant 1, in favour of Mata Prasad and Ram Prasad, defendants 2 and 3. The mortgagees sold their rights to Baijnath Prasad by sale-deed dated 16th January 1914. The plaintiff bought the mortgagee rights for Rs. 700 at an auction sale held on 20th April 1925 in execution of a money decree against Sheo Prasad (defendant 4), minor son of Baijnath Prasad. The plaintiff claims Rs. 8,000 on the basis of this mortgage. The suit was originally decreed ex parte on 16th February 1926 against Sidh Gopal and the other defendants, excepting Mt. Durgawati. After Sidh Gopal's death Mt. Durgawati, his widow, got the ex parte decree set aside upon proof that Sidh Gopal had no notice of the suit. Mt. Durgawati is the only contesting defendant. She denied execution of the deed and the passing of consideration and pleaded that the debt was contracted for gambling, that the deed was invalid, that the stipulation for compound interest was inserted under undue influence and that the suit was barred by limitation so far as her personal liability was concerned.

2. The trial Court found all the issues in the plaintiff's favour, except that the suit was barred, so far as a decree under Order 34, Rule 6, was concerned, by six years limitation and passed a decree for sale for Rs. 9,215-14-8. Mt. Durgawati impugns the decree of the trial Court mainly on technical grounds. The first point is that secondary evidence was not admissible to prove the mortgage-deed, as no serious attempt had been made to produce the original. The mortgage-deed was sold by the original mortgagees to Baijnath as we have already mentioned. The plaintiff is the auction-purchaser of the mortgagee rights in execution of a decree against Sheo Prasad, the son and legal representative of Baijnath. The plaintiff's case is that the original deed is in the possession of Sheo Prasad who refused to give it up in spite of repeated demands, hence the plaintiff was forced to sue on basis of a certified copy obtained from the registration department. Sheo Prasad is a minor under the guardianship of his mother Mt. Ganga Dei, who is a pardanashin lady. According to the plaintiff's case she is living with her brother Hira Lal at Benares. The plaintiff deposes that he twice asked Hira Lal for the original deed before the suit was instituted. He also served a summons on Ganga Dei, through her brother Hira Lal to produce the original deed. This summons was served on Hira Lal personally but the deed was not produced. We see no reason to disbelieve the plaintiff's evidence on these points.

3. The appellant contends that this service of summons on Hira Lal was legally insufficient to constitute such notice to Mt. Ganga Dei as is required by Section 66, Evidence Act. It is true that Hira Lal is not a 'recognized agent' of his sister, Mt. Ganga Dei, but as she is a pardanashin lady the summons could, under Order 5, Rule 15, be served upon her brother if he was living with her. Objection is also taken to the fact that Hira Lal was expressly named in the summons as the person upon whom it might be served. At the most this was a technical irregularity due probably to the fact that the plaintiff knew that Mt. Ganga Dei was a pardanashin, and was living with her brother Hira Lal, and that the latter was the most suitable person to accept service of the summons.

4. For the respondent it is argued that no notice was necessary under Section 66, Proviso (2), because the defendant Sheo Prasad must have known that he would be required to produce the original deed. It was stated in the plaint that the original deed was in Sheo Prasad's possession. We doubt whether Sheo Prasad can be held to be an 'adverse party' within the meaning of Proviso (2). He was a mere pro forma defendant who had no interest in the property or in the decision of the case. It is also pointed out that the Court may in its discretion dispense with a notice under Section 66. This is true, but beside the point, as the Court did in fact issue a summons to Sheo Prasad's guardian to produce the original deed. We are satisfied, however, that there is no force in the appellant's contention. Putting his case at its highest it only amounts to this, that the Court wrongly exercised its discretion in holding that sufficient notice had been given to Mt. Ganga Dei to produce the original deed. If we accept the contention it would only involve giving the plaintiff another chance of serving a notice on Mt. Ganga Dei. The learned advocate for the appellant does not urge us to adopt this course nor is it likely to benefit his client in the least. There is no allegation that any part of the mortgage money has been repaid, which fact might be proved by an endorsement on the original deed, so the production of the original could not help the appellant or injure the respondent. We hold that in the circumstances of this case the trial Court was justified in admitting secondary evidence of the original deed.

5. The next point is that the execution of the deed in suit has not been proved. The deed purports to have been written by Bechu Lal and signed by Sidh Gopal and attested by Madho Lal and three other attesting witnesses. Madho Lal deposes that Sidh Gopal signed the deed in his presence and he (the witness) signed it as an attesting witness but nobody else attested it in his presence nor were any of the other attesting witnesses present at that time. Bechu Lal when first examined gave evidence only in proof of the sale-deed dated 16th January 1914 and was not asked any questions about the mortgage-deed. After both parties had closed their case, and arguments had begun, the Court allowed Bechu Lal to be re-called. He then said that he thought he had attested the mortgage-deed but he was certain that Madho and Babu Lal were marginal witnesses in whose presence Sidh Gopal signed. We think the Court acted unfairly in allowing Bechu Lal to be recalled after arguments had begun and we propose to disregard his second deposition. We take it then, on the evidence of Madho Lal, that Sidh Gopal signed the deed in Madho Lal's presence and no other attesting witness was present at that time i.e., no other attesting witness actually saw Sidh Gopal signing the deed.

6. It is argued for the appellant that in these circumstances the execution of the deed has not been proved and that it was not attested in the manner required by law. Reliance is placed on the Privy Council ruling in Shamu Pattar v. Abdul Kadir Ravuthan [1912] 35 Mad. 607 for the proposition that attestation can only be made by a witness signing after seeing actual execution of the deed and a witness cannot attest the deed merely on the strength of the executant's acknowledgment of his signature.

7. It is perfectly clear, however, that this ruling and all the other rulings to the same effect must now be treated as obsolete. The Transfer of Property (Validating) Act 1917 applies to the mortgage in suit and expressly declares that the mortgage shall not be deemed to be invalid by reason only that any person who purported to attest such instrument as a witness did not see the executant sign it; provided that the witness received from the executant a personal acknowledgment of his signature. The definition of 'attested' has also been inserted in the Transfer of Property Act by Act 27 of 1926 to which retrospective effect has expressly been given by Act 10 of 1927. This definition also shows that an attesting witness need not actually see the executant signing the deed. It is obvious, therefore, that the mortgage: is not invalid by reason of the fact that only one attesting witness actually saw the executant sign it. If any one of the other attesting witnesses signed it in the executant's presence, after receiving from him a personal acknowledgment of his signature, then all legal requirements in respect of attestation are satisfied. It may be mentioned that the deed itself shows that the attesting witnesses signed 'on admission of the executant.' As the law now stands there is nothing in Madho Lal's evidence or in the deed itself to suggest that it was not executed in the manner required by law. The due execution of a mortgage-deed can no longer be held to mean its signature by the executant in the presence of two attesting witnesses. The Court was justified in finding execution proved by the evidence of Madho Lal only. Section 68, Evidence Act, does not necessitate the examination of more than one attesting witness. There is not the slightest reason to suspect the genuineness of the deed. Sidh Gopal got it registered on the very day of its execution. We hold that execution has been duly proved.

8. The third point argued for the appellant is that the rate of interest is so penal and unconscionable that undue influence should be presumed. The rate is certainly very high namely, Rs. 2-8-0 per cent per mensem compoundable quarterly, but there is nothing to show that the original mortgagees were in a position to dominate the will of Sidh Gopal. From the mere fact that Sidh Gopal was indebted and in urgent need of money it cannot be inferred that the mortgagees were in a position to dominate his will. Hence we are not justified in presuming that the contract was induced by undue influence. We see no reason to disturb the decree of the trial Court and accordingly we dismiss the appeal with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //