1. This is an appeal against the judgment dated 28th April, 1967 of K.K. Das, J. passed in Second Appeal No. 252 of 1964. One Khali Dajua on behalf of himself and his minor son Ladu along with his son Raghunath Dakua executed on 3-3-1953 a registered deed of mortgage on conditional sale in favour of Ananta Nahak for a consideration of Rs. 600/-which was advanced to him in cash. The condition of the bond was that if the amount was not repaid within a period of two years from the date of the execution of the bond, mortgagee would become the full owner of the property and would enjoy the same absolutely.
As the amount was not paid within the stipulated period, the mortgagee demanded payment or, in the alternative, possession of the mortgaged property and as the demand was not complied with, a suit was instituted in Court by the heirs of the mortgagee who was by then dead, against Khali Dakua and his two sons Raghunath Dakua and Ladu.
Defendants 1 and 2 in the written statement admitted the execution of the bond, but contended that it was purely a benami transaction. Defendant No. 3 contended that he was not aware of the suit mortgage bond and that the same was not valid and binding on him. It is unnecessary for the purpose of this appeal to refer to other contentions raised on behalf of the defendants. At the time of hearing of the suit, two witnesses were examined on the plaintiffs' side. The first witness was plaintiff No. 1 who stated inter alia that-
'Defendant borrowed Rs. 600/- from my father about 9 years ago and executed a mortgage bond in his name.'
The correctness of this statement is not challenged in cross examination. His witness P. W. 2 whose name appears as one of the attestors of the mortgage bond stated inter alia that-
'Defendant had borrowed once or twice from Ananta. He executed a document with same conditions. * * * I had signed there as an identifier and attestor.'
His statement that he signed the document as an attestor has not been challenged in the cross-examination. The trial Court, however, dismissed the suit on the ground that although the execution of the document was admitted by the defendants, attestation of the same was not proved as required by law. The plaintiffs appealed and the first Appellate Court reversed the finding on the ground that in view of the fact that the defendants had admitted execution of the document and had not challenged the validity of the execution in the written statement, no duty was cast on the plaintiffs to prove attestation and that, therefore, the suit document was proved to be a mortgage bond. The defendants filed an appeal in this Court. Das, J. on a critical examination of the relevant provisions held that despite the admission of the execution of the deed by the defendants, it is incumbent on the plaintiffs to prove due attestation of the mortgage unless attestation is specifically admitted and that mere admission of the execution of the bond would not absolve the plaintiffs from the duty of proving attestation. The correctness of this view is challenged before us in this appeal.
2. Section 59 of the Transfer of Property Act enjoins that a mortgage bond for an amount of rupees one hundred or upwards, in order that it may be enforceable as such must be attested by at least two witnesses. The expression 'attested' is defined in Section 3 of the T. P. Act as meaning attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument,. . . . and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time....
3. Section 68 of the Evidence Act provides the mode of proof of the execution of the document required by law to be attested and it says that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there is such an attesting witness alive, and subject to the process of the Court. There is a proviso to the section in the nature of an exception which in effect says, that it shall not be necessary to call an attesting witness in proof of the execution of a registered mortgage bond, unless its execution by the person by whom it purports to have been executed is specifically denied. We have already noticed the written statements filed in this case and it is clear therefrom that while defendants 1 and 2 had admitted execution of the mortgage bond, defendant No. 3 had not specifically denied the execution thereof. All that he stated was that he was not aware of the execution of the mortgage bond. In the circumstances, the proviso to Section 68 of the Evidence Act is attracted. If, in such a case, execution of the document has still to be proved, it is not necessary for the plaintiff to call an attesting witness for the purpose, but execution and due attestation may be proved by other methods.
4. Mr. N.V. Ramdas appearing for the defendant-respondents while conceding that the proviso to Section 68 of the Evidence Act is attracted in this case, and that in the circumstances, execution and attestation may be proved without calling an attesting witness for the purpose says, that the evidence adduced in this case falls short of proof of due attestation. His argument is that it is not enough for the witness to say that the document was attested but he should specifically state that each of the two attesting witnesses had seen the executants signing the document and there must be further proof that each of these witnesses had signed the instrument in presence of the executants. There is no dispute that such detailed evidence about attestation is wanting in this case.
The answer of Sri R.C. Misra appearing for the appellants to the above contentions is two-fold. He firstly relies on Section 70 of the Evidence Act which says that the admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested. He says that as the defendants had admitted the execution of the document, such admission must be deemed to be an admission of a validly attested document and that, therefore, further proof of execution and attestation are unnecessary. His second point is that since the factum of attestation has not been challenged either in the written statements or in evidence, it is not open to the defendants to contend that the document is not validly attested. These contentions require careful examination.
5. The scope of Section 70 of the Evidence Act came up for consideration before the Privy Council in Mt. Hira Bibi v. Ram Hari Lal, AIR 1925 PC 203. A suit was brought to enforce a mortgage and it was pleaded by the defendants that the mortgage bond was void by reason of its not being attested in accordance with Section 59 of the T. P. Act. The mortgagor who was a pardanashin lady admitted that she had signed the bond. The evidence which was let in in this case showed that when Hira Bibi signed the bond not one of the persons who signed the mortgage was present or saw her signing. The High Court of Patna felt that the evidence was wholly insufficient to comply with the requirements of Section 59 of the T. P. Act but they held that the deed is good as against Hira Bibi, because she had admitted that she had signed it, and passed a mortgage decree against her. On appeal, their Lordships of the Privy Council did not accept this view and held that Section 70 of the Evidence Act would apply only to a document duly attested and that as the evidence in that case showed that the document was not properly attested, it would not operate as a mortgage bond as against Hira Bibi.
Mr. Ramdas relies on this decision and contends that admission of execution of a mortgage bond by the mortgagor would not absolve the mortgagee from proving due attestation thereof. We are unable to see anything in the decision which supports this view. There are two important features in the Privy Council case which have to be particularly noticed. The mortgagor there specifically contended that the document was not attested in accordance with law and the evidence regarding attestation which the mortgagee adduced showed positively that the document was not properly attested. Section 59 of the T. P. Act is a substantial law and Section 70 of the Evidence Act is only a rule of evidence. When evidence on record showed that the substantial law has not been complied with, it could not certainly be ignored despite the admission of her signing the document. That is why their Lordships said that admission under Section 70 means admission of a validly attested document.
In this case, neither of the two features referred to above is present. Defendants 1 and 2 have not specifically stated that the document is not valid for want of due attestation, and the evidence regarding attestation that has been adduced may be insufficient to prove due attestation but does not go to show that the document has not been validly attested. It is only in cases where it appears on the face of the document or it is positively made out in evidence on record that the document required by law to be attested has not been attested in accordance with law that Section 70 of the Evidence Act cannot be made applicable in spite of the admission of a party to an attested document of its execution by himself, for the simple reason that a Court cannot shut its eyes to obvious facts appearing on the face of a document or on the surface of the record. But the position is quite different where there is no proof one way or the other about attestation and there is nothing on the face of the document to show that the document had not been properly attested.
A Division Bench of Oudh Chief Court in Raja Ram v. Rameshwar Bakhsh Singh AIR 1936 Oudh 270 held that in the aforesaid circumstances admission of execution of a mortgage bond would be sufficient proof of its execution against the party making the admission so as to dispense with the proof of attestation. A Division Bench of the Bombay High Court in Timmavva Dundappa v. Channava Appaya, AIR 1948 Bom 322 held that the admission mentioned in Section 70 of the Evidence Act must be an admission about the due execution of the document which would include an admission as to its proper attestation.
In Arjun Chandra Bhadra v. Kailas Chandra Das, AIR 1923 Cal 149 (2) their Lordships of the Calcutta High Court held that where the admission of execution of a document is unqualified it may well be equivalent to an admission of due execution, or a waiver of proof of due execution within Section 70 of the Evidence Act, and that the term 'execution' in Section 70 is used in the sense of due execution or execution in a way in which a particular document is required to be executed. The same view is expressed by a Division Bench of the Allahabad High Court in Asharfi Lal v. Mt. Nannhi, AIR 1922 All 153 (1) that even in case of a document requiring attestation, where admission by a party to the suit of the execution is on record, the attestation need not be proved.
6. The contention of Mr. Ramdas for the respondents on this point is that the admission 'referred to in Section 70 of the Evidence Act relates only to admission of execution as such and that despite such admission of execution of the document by the mortgagor it is still incumbent on the mortgagee to prove due attestation. In other words, what he contends is that Section 70 of the Evidence Act is not sufficient to dispense with the necessity of proof of attestation by two witnesses to make a mortgage bond valid under Section 59 of the T. P. Act and that Section 70 thus only qualifies Section 68 of the Evidence Act but does not affect or control Section 59 of the T. P. Act. If this interpretation is accepted and it is held that the admission of the executants has not the effect of dispensing with the proof of attestation, there was no necessity for Section 70 at all as, even without it, recourse could be had to the general provisions of the Evidence Act relating to admissions, if the admission of execution is to be used only in a sense of an admission of signing only.
7. We would now briefly notice the decisions on which Mr. Ramdas has relied in support of his contention. The first of these cases is AIR 1925 PC 203 which has already been referred and where their Lordships say that Section 70 of the Evidence Act applies only to a document duly attested. But it is clear from the decision that in that case the validity of the bond was specifically contested by the defendants on the ground that it was not properly attested and that in these circumstances, proof of valid attestation was considered necessary in that case. Lachman Singh v. Surendra Bahadur Singh, AIR 1932 All 527 (FB) is also a case where the execution and attestation of the deed were not admitted by the mortgagor. Their Lordships held that in such a case, the mortgagee need prove only this much that the mortgagor signed the document in presence of an attesting witness and one man attested the document; provided the document on the face of it bears the attestation of more than one person; but if the validity of the mortgage be specifically denied, in the sense that the document did not effect a mortgage in law, then it must be proved by the mortgagee that the mortgage deed was attested by at least two witnesses.
This Full Bench decision was followed by a Division Bench of the Allahabad High Court in Amir Husain v. Abdul Samad. AIR 1937 All 646 wherein a suit on a mortgage, the mortgagors did not admit the validity of the mortgage and put the plaintiff to strict proof thereof. Sheik Kachu v. Mahammad Ali Mahmud, AIR 1927 Cal 926 was a case where a suit was brought for foreclosure on a mortgage. In the written statement the defendants whose defence was that they had paid off the amount due under the mortgage, did not plead that the document was not a valid mortgage in law and at the trial it was admitted by and on behalf of the mortgagors that the document was duly executed and attested. But the plaintiff instead of relying on the admission of the defendants, adduced evidence before the Court from which it became apparent that the document was not properly attested and was not a valid mortgage according to law. When faced with this difficulty, the plaintiff relied on Section 70 of the Evidence Act and contended that in view of the admission of execution, further proof of attestation was not necessary. This contention was overruled by their Lordships who held that Section 70 of the Act cannot and does not affect to render valid a document which, it is apparent from the evidence before the Court, is invalid in law. This decision therefore cannot be taken as an authority in support of the proposition that despite admission of execution of a mortgage bond, proof of attestation is still necessary.
In Rajani Kanta Barui v. Bonbehari Sarkar, AIR 1952 Cal 7, a suit was filed to enforce a mortgage and the defendant in his' written statement admitted having executed the document but denied due and proper attestation. The Court held that the admission of the mere signature by the executant is not tantamount to admission of the entire series of facts as would give validity to the document itself, and that therefore, the plaintiff has to prove due attestation. AIR 1921 Mad 701, Namberumal Chettiar v. Raghava Chariar relied upon by Mr. Ramdas does not deal with Section 70 of the Evidence Act. In Davood Rowther v. Ramanathan Chettiar, AIR 1938 Mad 43. which was also a suit on a mortgage bond, the defence was that it was not duly executed and validly attested and the Court held that attestation must be proved.
Reliance is then placed on Pravas Chandra Pati v. Jagamohan Das, (1960) 26 Cut LT 359, a decision of Mohapatra, J. The suit was for enforcement of a mortgage transaction and the plea of the defendant was one that of payment and adjustment. The trial Court dismissed the suit on the finding that the transaction had not been proved as a mortgage transaction as one of the attesting witnesses admitted to be alive had not been called as required under the provisions of Section 68 of the Evidence Act. The lower appellate Court reversed the finding and allowed a full decree in favour of the plaintiff. In this Court it was contended on behalf of the defendant-appellants that in view of the provisions of Section 68 of the Evidence Act, it was incumbent upon the plaintiff to have examined the attesting witness. Mohapatra, J. repelled this contention on the ground that far from specifically denying execution of the document, the defendants had admitted its execution and that therefore calling an attesting witness to prove execution was unnecessary.
The learned Judge then proceeded to say that if the plaintiff comes forth to enforce a mortgage transaction, he is not to rest satisfied by proving execution only but he has got to prove attestation as defined in Section 3 of the T. P. Act. and this can be proved by any other method provided the case is not hit by the provisions of Section 68 of the Evidence Act, in which case alone it is made compulsory and essential that the plaintiff has to call one of the attesting witnesses. On examination of the evidence of P. W. 1, his Lordship was satisfied that it was sufficient to prove attestation as defined in Section 3 of the T. P. Act and dismissed the appeal. It would thus be noticed that Section 70 of the Evidence Act did not at all come up for consideration in that case and obviously in view of the satisfactory evidence regarding attestation adduced therein it was not contended in that case that the defendants having admitted execution, it was further unnecessary to prove attestation. This cannot, therefore, be relied upon as an authority for the proposition contended for by Mr. Ramdas. None of the above cases therefore supports the stand taken by Mr. Ramdas that where the mortgagor admits execution of the bond without specifically contending that it is not validly attested, the mortgagee has still to prove due attestation.
The only case which supports his contention is the judgment of a learned single Judge of the Madras High Court in Ramchandra Rao v. V. Sama Rayar, AIR 1927 Mad 143. In that case, the plaintiff sued on a mortgage bond executed in his favour by the first defendant. The latter confessed execution and pleaded some payment. The Munsif accepted the plea but on appeal the Subordinate Judge reversed the judgment and the defendant went up in second appeal and in that Court raised the plea that the mortgage deed was not duly attested. Relying on AIR 1925 PC 203, Curgenven, J. held that independent of the acknowledgment of the first defendant's execution it has to be found that the mortgage deed was valid as satisfying the requirements of Section 59 of the T. P. Act regarding attestation and although there was no issue, the witnesses were examined and cross-examined on that point, and it is the duty of the Court to satisfy itself that the mortgage bond was validly executed before granting a decree on it. In this view of the case, he framed an issue as to whether the mortgage deed was validly attested and in accordance with S. 59 of the T. P. Act and remanded the suit to the lower appellate Court for a finding on the evidence already on record and for disposal.
With great respect to the learned Judge, it appears to us, that in relying on the Privy Council decision in Hira Bibi's case, AIR 1925 PC 203, he overlooked the distinguishing feature that in that case the defendant had specifically pleaded that the mortgage bond was void by its not being attested in accordance with law. This view of Curgenven, J. does not appear to have been accepted in any subsequent decision of the Madras High Court; at least none was brought to our notice.
8. On a plain reading of Section 70 of the Evidence Act it appears to us, that) the 'admission' referred to therein is admission of a validly attested document which means that when a party admits execution of the document, he thereby not only admits the mere signing thereof, but also the entire series of acts which would give validity to the document concerned. The preponderance of authorities is in favour of this interpretation. Where, therefore, the party admits execution of the mortgage bond, it means that he admits its valid execution including therein the valid attestation thereof it is thereafter unnecessary for the mortgagee to proceed to prove attestation. But if a mortgagee does not (sic) proceed to lead evidence regarding attestation and the evidence so let in falls short of proof of due attestation as has happened in the present case, then also the mortgagee is entitled to succeed in the action on the footing that it is a valid mortgage bond. But, if such evidence adduced by the mortgagee shows positively that the document has not been attested in accordance with law, then despite admission of its execution by the mortgagor, the mortgagee would fail.
In the present case, in view of the admission of execution by defendants 1 and 2 it was not incumbent on the plaintiff-appellant to prove attestation. Nonetheless, he examined a witness and although the evidence adduced by him is insufficient to prove attestation yet it does not show that the document was not attested according to law. Hence, so far as defendants 1 and 2 are concerned, the plaintiff is entitled to get a decree on the basis of the mortgage bond.
9. The position, so far as defendant No. 3 is concerned, stands on a different footing. He has not admitted execution and contended that it is not valid and binding on him. So far as he is concerned, Section 70 of the Evidence Act cannot be pressed into aid and attestation has to be proved. As admittedly the evidence adduced in this case falls short of the requirement of proof of valid attestation, the plaintiff would not be entitled to obtain a mortgage decree against defendant No. 3. The suit as against him must stand dismissed.
10. In the result, therefore, we would allow the appeal and restore the judgment and decree passed by the learned first appellate Court in so far as it relates to respondents 1 to 3 (defendants 1 and 2 in the trial Court). The appeal so far as it relates to respondent No. 4 Ladu Dakua (defendant No. 3 in the trial Court) shall stand dismissed. In the circumstances, parties are to bear their own costs in this Court and the Courts below.
U.S. Acharya, J.
11. I agree.