C.M. Lodha, J.
1. This is a plaintiff's second appeal arising out of a suit for recovery of money by the sale of the mortgaged property.
2. The suit is based on a registered mortgage deed dated 21-4-1955. The mortgagor is the debtor Bastu Singh. The plaintiff's case is that the defendants Nos. 2, 3 and 4 Ramsingh, Hanuman Singh and Ramdeo also signed the mortgage deed as sureties. The orginal mortgage deed has been placed on the record and marked Ex. 1. It is mentioned therein that if the amount of mortgage including all other claims of the mortgagee are not realised by the sale of the mortgaged property, the mortgagor as well as defendants Nos. 2 to 4 would be liable to pay the balance, if any.
3. The suit was decreed against the mortgagor Bastu Singh as a simple money debt. The mortgaged property was sold through the Court after attachment. Admittedly some amount has still remained due to the mortgagee after the sale proceeds had been paid to him. Both the Courts dismissed the plaintiff's suit against defendants Nos. 2 to 4 on the ground that the execution of the mortgage deed by them was not proved. Consequently the plaintiff has come in second appeal to this Court.
4. Learned counsel for the appellant has urged that in view of Section 60(2) of the Indian Registration Act (1908) the mortgage deed should be presumed to have been executed by defendants Nos. 2 to 4. His contention is that the burden of issue No. 5 which pertains to the execution of the mortgage deed by the defendant Nos. 2 to 4 should not have been placed on the plaintiff. In the second place he has argued that both on account of certificate of registration as well as other circumstances appearing on the record, the lower Courts ought to have held that the execution of the mortgage deed by the defendants Nos. 2 to 4 was fully proved.
5. So far as the question of burden of proof is concerned it is important to note that no such objection was taken in any of the two lower Courts. The plaintiff accepted the burden of proving the execution of the mortgage deed by the defendants Nos. 2 to 4. He also led evidence on the point and it is not open to him now to complain that the burden of proof had been wrongly placed on him. Besides that, in Premraj v. Mishrimal, 1959 Raj LW 265, it was held that mere production of the registered deed is not sufficient to prove the execution of the same. The identity of the executant has to be established by oral evidence before the deed can be taken to have been proved. I am, therefore, of opinion that the contention of the learned counsel for the appellant that the burden of proof of issue No. 5 pertaining to the execution of the mortgage deed was wrongly placed on the plaintiff has no substance.
6. It is now to be seen whether execution of the mortgage deed Ex. 1 by defendants Nos. 2 to 4 as sureties for defendant No. 1 Bastusingh has been proved? Learned counsel for the appellant has submitted that there is an endorsement of the Sub-Registrar on Ex. 1 to the effect that the executants of the deed, namely, Bastu Singh, and his sureties Ram Singh, Hanuman Singh and Ramdeo appeared before him, and admitted that after having heard and understood the contents of the document they had appended their signatures to it, and that all the executants had been identified before him Rughnath and Gopal Lal. It is further submitted that there appear the signatures of all the four executants below the endorsement of the Sub-Registrar. In this connection my attention has been invited to Section 60(2) of the Indian Registration Act (1908) which provides that the certificate of the Registrar shall be admissible for the purpose of proving that the document has been duly registered in the manner provided by the Act, and that the facts mentioned in the endorsement have occurred as therein mentioned.
7. In support of his contention learned counsel has relied upon Gangamoyi Debi v. Trioluckhya Nath, (1906) ILR 33 Cal 537 (PC); Mohanlal v. Rasula, ILR (1951) 1 Raj 17 = (AIR 1951 Raj 117); Dhansingh Yadav v. Badri Prasad, 1963 Raj LW 304 = (AIR 1963 Rai 198); Gopaldass v. Thakurji, AIR 1943 PC 83; Putti Lakshmayya v. Garlapati Tirupathamma, AIR 1958 Andh Pra 720 and Narayan v. The Chamber of Commerce Ltd./Kishangarh, 1969 Raj LW 107. He has also submitted that even though the direct evidence led by the plaintiff to prove the execution of the document by defendants Nos. 2 to 4 is not sufficient yet there is enough circumstantial evidence which clearly indicates that defendants Nos. 2 to 4 had executed the document and had also appeared before the Sub-Registrar to get the document registered.
8. On the other hand, learned counsel for the respondent has argued that the endorsement by the Registrar under Section 60 of the Registration Act cannot be used as a substantive piece of evidence and the signatures of the defendants Nos. 2 to 4 must be proved by one of the modes laid down in Section 67 of the Evidence Act. In support of his submission he has relied upon Inder Nath Modi v. Nand Ram, ILR (1955) 5 Raj 955 = (AIR 1957 Raj 231).
9. I may first deal with the evidentiary value of the certificate of the Registering Officer under Section 60. In ILR (1951) 1 Ra.i 17 = (AIR 1951 Raj 117), it was held that evidence of due registration may itself be an evidence of the execution of document. This case came up for consideration before another Division Bench of this Court in ILR (1955) 5 Raj 955 = (AIR 1957 Raj 231). In the subsequent case Wanchoo C. J., speaking for the Court observed that,
'it may be remembered that this mode of proof cannot take the place of proof as provided by Section 67 of the Evidence Act which lays down that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.'
It was further observed that,--
'It is only where it is not possible to take recourse to the method provided in Section 67 because of the fact that the executant and the marginal witnesses are either dead or cannot be found that the Courts have taken recourse to the presumption under Sec. 60(2) of the Registration Act.'
As regards the proposition of law laid down in this connection by their Lordships of the Privy Council in (1906) ILR 33 Cal 537 (PC). His Lordship was pleased to observe that,--
'That was a case of a will executed in April, 1867, and the suit was brought in 1897. The original will was produced and so was an attesting witness. It was not necessary, therefore, in that case to rely on the presumption under Section 60(2) of the Registration Act. The remarks of their Lordships to which we have referred above were with respect to another contention in that case, namely that the testator had not a disposing state of mind. It was in that connection that their Lordships observed that registration was a solemn act, and every thing must be presumed to have been done duly and in order unless a fraud on the Registration Officer was shown to have been committed.'
While referring to another Privy Council case, AIR 1943 PC 83, it was observed that,
'That was a case relating to a document executed in 1881, and the suit in which the question arose was filed sometimes before 1930 more than 40 years after the document had been executed.'
It was held that the observations of their Lordships of the Privy Council in Gopal dass's case, AIR 1943 PC 83, that the evidence of due registration is itself some evidence of execution would apply only when evidence to prove execution in the manner provided in Section 67 of the Evidence Act is not available due to the executant or the marginal witnesses being dead or for some other reason. It was further observed that the presumption of Section 60(2) cannot take the place of proof as required by Section 67 of the Evidence Act when witnesses are available to prove the document in the manner provided by the Evidence Act. In the conclusion Wanchoo C. J., was pleased to observe.
'If we may respectfully say so, the proposition of law laid down in Mohan Lal's case, ILR (1951) 1 Raj 17 = (AIR 1951 Raj 117), namely, that evidence of due registration may itself be evidence of registration of document is not incorrect if the other circumstances to which we have referred in the present judgment are kept in mind by Courts when using the presumption arising under Section 60, Sub-section (2) of the Registration Act.'
10. In Govind Ram v. Abdul Wahab, 1963 Raj LW 453 = (AIR 1963 Raj 234); Modi J. observed that in ILR (1955) 5 Raj 955 = (AIR 1957 Raj 231), the learned Judges were not laying 'down the law exhaustively on the subject noi they intended to do so, and in the circumstances before him, namely, that the executant although alive, was a blind person, and the defendant did not choose specifically to question the factum of sale and looking to other circumstantial evi dence coupled with the certificate of registration the learned Judge held that the execution of the sale deed was proved.
11. There is yet another Bench decision of this Court on the point, 1969 Raj LW 107: In this case Mehta J., speaking for the Court observed as follows:--
'Consequently, the admission of the executant before the Registrar must be deemed to have been proved by the endorsement of the Registrar in view of the provisions of Sections 59 and 60. Such being the settled law, we are not prepared to accept the contention of learned counsel for the appellants that the certificate of the Sub-Registrar under Section 60 of the Registration Act cannot be considered as a substantive piece of evidence and that Section 68 of the Indian Evidence Act required independent proof that the alleged signature of the executant was in his handwriting and that mere proof of presentation of the document or its admission does not satisfy that requirement.'
It was further observed that,
'It must be regarded as a settled lawever since the decision of their Lordshipsof the Privy Council in AIR 1943 PC 83(supra) that evidence of due registrationis itself evidence of execution against theparties.'
Unfortunately the earlier Bench decisionof this Court: ILR (1955) 5 Raj 955 =(AIR 1957 Raj 231), was not brought tothe notice of the learned Judges.
12. Thus there are two Bench decisions of this Court, the earlier one holding that the presumption of Section 60(2) cannot take the place of proof as re-quired by Section 67 of the Evidence Act when witnesses are available to prove the document in the manner provided by the Evidence Act, and later one holding that the evidence of due registration is itself evidence of due execution.
13. However for the disposal of the case on hand it is not necessary for me to enter into this controversy lest I might have referred the case to a Larger Bench. Even according to the view taken in Shri Indernath Modi's case, ILR (1955) 5 Raj 955 = (AIR 1957 Raj 231), under certain circumstances presumption of Section 60(2) may be raised to hold that the document was duly executed and that the certificate constitutes some evidence.
It is, therefore, to be seen whether any such circumstantial evidence has been placed on the record in the present case, which may lead to the inference that the document in question was duly executed by defendants Nos. 2 to 4. The scribe of the document P. W. 1 Jugal Kishore has stated that he scribed Ex. 1 at the request of the defendants among whom defendant No. 1 Bastu Singh was the debtor and the defendants Nos. 2 to 4 were the sureties. He further states that the defendants Nos. 2 to 4 did not put their signatures on the document in his presence, but they were present, when the debtor Bastu Singh signed the document and made an endorsement admitting the contents thereof.
P. W. 2 Yusuf Ali one of the attesting witnesses to the document states that he had attested the document at the request of all the defendants but that the defendants had not signed the document in his presence. In the course of cross-examination he stated that he did not know any of the defendants nor he could identify them. The other attesting witness Samsuddin (P. W. 5} has deposed that among the executants of the document he knew Ramsingh only. He further, stated that Jugal Kishore brought Ex. 1 to him and asked him to attest it, and that he attested the same, but he did not ask any of the executants as to what for his attestation was being obtained? He has further deposed that he had wrongly mentioned in his attestation that the had attested the document at the instance of the defendants as he had attested the document at the request of the scribe Jugal Kishore, though he admits that he should not have done so.
Thus neither the scribe nor the attesting witnesses proved the signatures of the defendants Nos. 2 to 4 on the mortgage deed Ex. 1, as it appears, they wanted to help the defendants. It was, therefore, the bounden duty of the plaintiff to have got the scribe as well as the attesting witness Yusuf Ali declared hostile, and the plaintiff should have sought permission to cross-examine, them, but it was not done. The plaintiff could have examined some other evidence also of persons acquainted with the handwriting of these defendants, but that, too was not done. Even the plaintiff himself did not come in the witness-box to prove the signature of these defendants on the mortgage deed Ex. 1. The explanation given by the learned counsel for the appellant is that the plaintiff thought that he would appear after the defendants' evidence is over and would make a statement on all the issues. It is submitted that when the plaintiff appeared in evidence after the defendants' evidence was over and wanted to prove the signatures of defendants Nos. 2 to 4 on Ex. 1 he was not allowed to do. so as his evidence on issue No. 5 the burden of which rested upon him had already been closed. I do not think any just objection can be taken to the refusal of the trial Court to allow the plaintiff to make any statement on issue No. 5 when he appeared as a witness after the defendants' evidence on all the issues was over.
Thus there is no doubt that the plaintiff was grossly negligent in proving the signatures of defendants Nos. 2 to 4 on Ex. 1. However, he has succeeded in establishing that the document was scribed at the request of all the defendants and that the attesting witnesses had also attested the document at their request. It further appears from the evidence of P. W. 3 Rughnath Singh that he had identified defendant Ram Singh besides Bastu Singh, the main debtor, before the Registrar.
13A. On the other hand defendant Bastusingh has appeared as D. W. 1 and has stated that neither he nor defendants Nos. 2 to 4 signed the mortgage deed. He has also denied the endorsement C to D made in his own hand on Ex. 1. The endorsement reads as follows:--
'Executed by Bastu Singh the main debtor and Ramsingh, Hanumansingh sons of Bhoor Singh Rajput and Ramdec son of Siruji Rajput, residents of Bikaner
The above contents are correc, lieu thereof.
Signed Bastu Singh,
Main Debtor No. 1.'
14. It is important to note that P. W. 1 Jugal Kishore, the scribe of the document has stated that this endorsement was made by Bastu Singh in his presence. Just below this endorsement are the signatures of defendants Nos. 2 to 4 regarding which Jugal Kishore has said that these signatures of defendants Nos. 2 to 4 were not made in his presence, but defendants Nos. 2 to 4, were present, when the above cited endorsement was made by Bastu Singh. It is remarkable that the attestations of Samsuddin and Yusuf Ali appear below the above cited endorsement of Bastu Singh and the signatures of defendants Nos. 2 to 4 yet the attesting witnesses have deposed that they were neither present when defendants Nos. 2 to 4 put their signatures, nor did they receive any acknowledgment from them of the signatures being theirs. It is also noteworthy that in the attestation of these witnesses there is specific mention that the attestation had been made not only at the request of Bastu Singh, the main debtor, but also at the request of the sureties -- defendants Nos. 2 to 4. D. W. 2 Ramsingh D. W. 3 Hanuman Singh and D. W. 4 Ramdeo have denied their signatures on the mortgage deed Ex. 1 but both Ramsingh and Hanuman Singh, who are real brothers have admitted that Bastu Singh is their first cousin. That is all the evidence on the point led by the parties.
15. In the light of the aforesaid oral evidence led by the parties, it is to be determined whether a presumption should be drawn, in the circumstances of the case that the contents of the endorsement by the registering authority are true and consequently it may be further presumed that the deed was executed by defendants Nos. 2 to 4 also. It is not disputed that the endorsement of the Sub-Registrar may constitute some evidence even for the purpose of proving the execution of the document. Mention has been made in clear and specific terms in this endorsement that the defendants Nos. 1 to 4 appeared before the Sub-Registrar and admitted before him that they had put their signatures to the document after understanding the contents thereof. There is no suggestion that any fraud was perpetrated on the Registering Authority and fictitious persons were produced before the Registering Authority to get a fictitious deed registered.
16. Taking all the circumstances of the case into consideration, I arn persuaded to come to the conclusion that the scribe and the attesting witnesses are suppressing the truth and that the signatures purporting to be of defendants Nos. 2 to 4 on the deed Ex. 1 are genuine, and a presumption should be drawn from the endorsement of the Sub-Registrar, in the circumstances of the present case, that the deed was duly executed and got registered, by defendants Nos. 2 to 4 also, It has been brought to my .notice that defendants Nos. 2 to 4 are all Government servants, who were employed at Bikaner at the time of the registration of the document which also took place at Bikaner, and it is difficult to accept that imposters were produced before the Sub-Registrar to pose as defendants Nos. 2 to 4 to get the document registered. It may not be out of place to mention here that even the principal debtor Bastusingh completely denied the plaintiff's claim and pleaded that he had neither executed nor got the document Ex. 1 registered.
The only difference in evidence brought on the record against defendant No. 1 is that Jugal Kishore has said that the principal debtor Bastu Singh had written the endorsement C to D in his presence. So far as the attesting witnesses are concerned both of them have tried to save even Bastu Singh. They have, however, admitted their attestations wherein it was mentioned that they had attested the document at the request of all the four defendants. Taking an over all view of the case I am convinced that the defendants Nos. 2 to 4 had also executed the mortgage deed and got it registered and the lacunas in the plaintiffs evidence are made up on account of the presumption attached to the certificate of the registration made under Section 60(2) of the Indian Registration Act. The learned District Judge has not at all considered the evidentiary value of the certificate given by the Registering Authority, and, therefore, his finding regarding the execution of Ex. 1 by defendants Nos. 2 to 4 is not binding in second appeal.
17. Learned counsel for the respondents resisted the appeal also on the ground, that according to the terms of the mortgage deed Ex. 1, the defendants Nos. 2 to 4 may be made liable for the suit amount only if the sale proceeds of the mortgaged property were found insufficient for discharge of the mortgage debt. His submission is that' the suit against the defendants Nos. 2 to 4 was premature as no cause of action had accrued against them. In support of his contention he has relied upon Subhan Khan v. Lalkhan, AIR 1948 Nag 1.23.
18. After having given my careful consideration -to the argument advanced by the learned counsel I have come to the conclusion that it cannot be acceded. In the first place no such objection was raised in the lower Courts. Then again, it is admitted that the mortgaged property has been sold, and after paying off thesale proceeds of the mortgaged property there only remains an amount ot Rs. 386 to be realised for which the defendants Nos. 2 to 4 are sought to be made liable. Thus assuming for the sake of argument, that no cause of action had accrued to the plaintiff against defendants Nos. 2 to 4 at the time of institution o' the suit, subsequent events go to show that the liability of the defendants Nos. 2 to 4 has arisen on account of the mortgaged property having been sold for realisation of the suit amount and it would be useless and unjust to dismiss the suit against the defendants Nos. 2 to 4 for a part of the suit amount at this stage specially when no such objection was taken in the Courts below. In this view of the matter, I overrule this objection.
19. The result is that I allow this appeal, modify the judgment and decree of the learned District Judge. Bikaner dated 12-10-1963 and hereby decree the plaintiff's suit against defendants Nos. 2 to 4 for Rs. 386/- only which is admittedly the amount now due on the basis of Ex. 1, the rest of it having been realised by sale of the mortgaged property. In the circumstances of the case, I hereby direct that the parties will bear their own costs of this appeal and defendants Nos. 2 to 4 shall also not be liable to pay costs of any of the Courts below.
20. Learned counsel for the respondents prays for leave to appeal to Division Bench. However, I do not consider it a fit case for grant of leave. The prayer is disallowed.