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Lala Paleshwari Prasad Vs. Shankar Dayal - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in74Ind.Cas.969
AppellantLala Paleshwari Prasad
RespondentShankar Dayal
Cases ReferredIn Laksman Sahu v. Gokhul Maharana
Excerpt:
evidence act (i of 1872), section 71 - attesting witnesses turning hostile--execution, method of proving--proof of attestation, whether necessary. - u.p. zamindari abolition & lands reforms act, 1951 [act no. 1/1951]. section 3(4) & u.p. land revenue act, (3 of 1901). sections 14-a (3) & 14; [s.rafat alam, r.k.agarwal & ashok bhushan, jj] expression collector- held, it includes additional collector. powers and functions of collector can be exercised by additional collector under section 198(4) of 1950 act, provided he has been so directed by collector of the district. [1996 aihc 3628 overruled]. - if they are dead or have been, won over by the other side the person claiming under the document is allowed to prove it a best he can......over and gave evidence hostile to the plaintiff. the plaintiff examined the writer of the deed to prove execution, under section 71 of the evidence act and his evidence has been rested, the appellant's contention is that it if necessary that this witness should have been able to swear that both the attesting, witnesses were present when the execution: signed the deed and that they witnessed it. this point is concluded against him by the authority both of this high court and of the patna high court. in narain das v. dilawar 52 ind. cas. 830 : 17 a.l.j. 141 : 41 a. 250 it was held by a ber.ch consisting of richards c. j., and banerji, j., that if the mortgage appeared on the face of it to have been executed in the presence of more than one person and it was proved in the manner prescribed.....
Judgment:

1. The only plea urged in this appeal is that the mortgage sued on was not proved. It has been found by the Courts below that the attesting witnesses had been won over and gave evidence hostile to the plaintiff. The plaintiff examined the writer of the deed to prove execution, under Section 71 of the Evidence Act and his evidence has been rested, The appellant's contention is that it if necessary that this witness should have been able to swear that both the attesting, witnesses were present when the execution: signed the deed and that they witnessed it. This point is concluded Against him by the authority both of this High Court and of the Patna High Court. In Narain Das v. Dilawar 52 Ind. Cas. 830 : 17 A.L.J. 141 : 41 A. 250 it was held by a Ber.ch consisting of Richards C. J., and Banerji, J., that if the mortgage appeared on the face of it to have been executed in the presence of more than one person and it was proved in the manner prescribed by Section 71 of the Evidence Act, this was sufficient. In Laksman Sahu v. Gokhul Maharana 70 Ind. Cas. 298 : 1 pat. 154 : (1922) A.I.R. (Pat.) 415 the question was still more specifically dealt with. The relevant passage in the judgment of Das, J., who delivered the leading judgment, is as follows:

The learned Vakil who has argued this case on behalf of the respondent urges before us that the proof of execution will not help the plaintiff: it must be proved that the document was properly attested. In my opinion, so far as Section 71 of the Evidence Act is concerned, execution includes attestation, for Section 71 only operates if the attesting witness denies or does not recollect the execution of the document.

2. We think that these rulings correctly express the intention of Section 71. The main object of attestation is to secure unimpeachable evidence of the execution of the document. The law provides that the attesting witnesses, if available, must be called and that in their absence no other evidence to prove execution shall be accepted. If they are dead or have been, won over by the other side the person claiming under the document is allowed to prove it a best he can. It is sufficient if he can prove execution by any evidence that may be available. It would be laying an impossible burden on him to require that he should be able to produce a witness who could not only prove execution but was also able to swear that both the attesting witnesses were present and that they attested the deed.

3. We accordingly dismiss the appeal under Order XII, Rule 11.


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