S.S. Byas, J.
1. This civil second appeal in a money suit has been filed by one of the two defendants. The suit was decreed by the Additional Civil Judge, Balotra against defendant respondent Dalpatsingh and was dismissed as against the appellant, but in appeal it was decreed also against the appellant by the learned Additional District Judge, Jalore, vide his judgment dated January 9, 1973. The appeal arises in the following circumstances.
2. Plaintiff Chhogalal instituted a suit for the recovery of a sum of Rs. 7000/- against defendants Dalpat Singh and Roop Singh in the Court of Civil Judge, Jalore. The case set-up by him is that on April 18, 1962 defendant Dalpat Singh purchased bus No. RJN 294 from him for a sum of Rs. 11,000/-. A sum of Rs. 1000/- was given to him at the time of transaction through a bank cheque issued by defendant Roopsingh. The balance of Rs. 10,000/- was to be paid in two instalments each of Rs. 5000/-. Defendant Roopsingh, who is the grandfather-in-law of defendant Dalapat Singh stood surety for him and undertook to pay the remaining balance of Rs. 10,000/- in case it was not paid by the principal defendant Dalpat Singh. The deed of transaction Ex. 2 was executed between the plaintiff and defendant Dalpatsingh on that very day at Jodhpur, mentioning therein that defendant Roopsingh stood as a surety. It was also signed by defendant Roopsingh. In case the balance was not paid on due dates, it would carry interest at rate of Re. 1% per month. Defendant Roopsingh paid a sum of Rs. 4000/- on July 14, 1962 and a sum of Rs. 1000/- on July 20, 1962 to the plaintiff through bank cheques drawn on State Bank of India, Jodhpur. Thereafter the defendant failed to pay the remaining balance of Rs. 5000/-. The plaintiff, therefore, brought a suit for the recovery of Rs. 5000/- as principal and Rs. 2000/- as interest thereon. The total being Rs. 7000/-. The suit was resisted by both the defendants Dalapat Singh and Roopsingh through separate written statements. The defence taken by defendant Roopsingh is that he had signed Ex. 2 only as an attesting witness. He categorically denied that he stood surety for defendant Dalpat Singh and undertook to pay the remaining balance as a surety. The trial court raised the necessary issues. Both the parties led evidence both oral and documentary. On the conclusion of the trial, the learned Additional Civil Judge held that defendant Roopsingh had appended his signatures on Ex. 2 only as an attesting witness. He did not stand surety for the payment of money to the plaintiff. The suit was decreed against defendant Dalpat Singh but was dismissed against defendant Roopsingh. The plaintiff went in appeal. In appeal, the learned Additional District Judge, Jalore held that defendant Roopsingh stood surety for defendant Dalpatsingh and had signed Ex. 2 as a surety and not as an attesting witness. Since the remaining balance was not paid by defendant Dalpatsingh, defendant Roop Singh was liable for its payment. The appeal was allowed and the suit was decreed as against defendant Roopsingh also. Aggrieved against the judgment and decree of the Additional District Judge, defendant Roopsingh has come up in this civil second appeal.
3. I have heard the learned counsel for the parties and gone through the case file carefully.
4. In assailing the judgment and decree of the learned Additional District Judge, it was vehemently contended by Mr. M.R. Bhansali, learned counsel appearing for the defendant Roop Singh that the whole approach of the court below was erroneous and unsustainable. Document Ex. 2 itself shows that the appellant had appended his signatures thereon as an attesting witness. The words 'witness Roopsingh' marked X to Y on Ex. 2 are sufficient to show that in fact defendant Roopsingh was only an attesting witness and had appended his signatures on it in that capacity and not as a surety. The recitals in Ex. 2 of making him a surety were not in the knowledge of defendant Roop Singh. There is no presumption in law that the contents of a document are in the knowledge of an attesting witness when he puts his attestation on it. The various letters, on which the lower appellate court put reliance in holding Roopsingh as a surety, were wrongly construed. Since Roopsingh was the real grandfather-in-law of Dalpatsingh, he made the payments to the plaintiff. These payments were made by him on behalf of Dalpatsingh and not on behalf of himself. From these payments it should not be inferred that he made them in his capacity as a surety for Dalpatsingh. It was also argued that the attestation of Taggaram (PW 3) was subsequently obtained. Taggaram was not present when Ex. 2 was executed. Had he been present at the time of execution of Ex. 2, he would have also put his attestation on Ex. 3 which is a counter-part of Ex. 2. It was argued that in these circumstances, it cannot be said that defendant Roopsingh stood surety for Dalapat Singh and undertook to pay the remaining balance of the purchase money. The learned Additional District Judge was, therefore, in error in accepting the appeal and decreeing the suit against the defendant appellant Roopsingh.
5. It was, on the other hand, contended by Mr. B.R. Darji appearing for the plaintiff respondent Chhogalal that there was ample material on record to show that the appellant Roopsingh stood surety for defendant Dalpatsingh and undertook to pay the remaining balance of Rs. 10,000/- in case it was net paid by Shri Dalpatsingh. Not only so, even at the time of the transaction, it was defendant Roopsingh who had made the payment of Rs. 1000/-. Subsequently also he paid the amount of Rs. 4000/- and 1000/- to the plaintiff through bank cheques. He would not have made the payment of these three amounts had he not stood as surety for Dalpatsingh. The various letters written by the appellant to the plaintiff further show that in fact he was a surety and never repudiated in these letters that the plaintiff's allegation of his being a surety was wrong or unfounded. I have taken the respective submissions into consideration.
6. It can be said without any difficulty that the suit is based on Ex. 2. The recitals in Ex. 2 relating to defendant Roopsingh standing as surety for Dalpatsingh read as under:
esjh vnk;xh u gksus ij esjh rjQ ls tks tehu Jh Bkdqj :Ikflag th iq= tkfyeflagth lkfgc fBdkuk lkSiM+k okyks ls olwy djus dk vf/kdkj gksxk
The words amply show that defendant Roopsingh stood surety for defendant Dalpatsingh and undertook to pay the amount in case it was not paid by the purchaser Dalpatsingh.
7. The contention of Mr. Bhanansali is that defendant Roopsingh had signed it only as an attesting witness and not as a surety. Roopsingh had clearly prefixed the word 'witness' before his signatures on Ex. 2. He had not read the contents of Ex. 2 before he appended his signatures on Ex. 2. It should not be inferred that the contents of Ex. 2 were in the knowledge of Roopsingh. It is true that attestation of a document does not, by itself, import consent to or knowledge of the contents of the document nor fix him with the notice of its recitals. But there may be circumstances under which the witness (attestor) may be deemed to have notice of the contents of the document he is attesting. Thus, where the attestor was present throughout the transaction and appended his signatures on the document, he can be easily fixed with notice of its recitals.
8. Now, there is ample evidence on record both oral as well as documentary to show that defendant Roopsingh was present throughout the transaction and at the time when Ex.2 was executed. Plaintiff Chhogalal (PW1) in his statement deposed that Roopsingh was present throughout the transaction and stood as surety for defendant Dalpatsingh and undertook to pay the amount in case it was not paid by Dalpatsingh. PW 3 Taggram has fully supported him on this count Taggaram (PW3) is the attesting witness of document Ex. 2. His attestation clause on Ex.2 has been marked C to D. In his attesting clause he has clearly mentioned that he had put his attestation on the request and at the instance of both the defendants-Dalpatsingh and Roop Singh. It may be mentioned hat PW 3 Taggaram is an independent witness having no favour for or ill-will against any of the parties. His testimony could not be impeached or shattered in any way by the defendants in his cross-examination. It is interesting to note that defendant Roopsingh (DW 3) no where stated that the attestation of Taggaram (PW 3) was obtained on Ex. 2 subsequently in his absence or that Taggaram was not present at the time of the transaction. It is difficult for the appellant to get rid of the direct testimony of Taggaram (PW 3). If the testimony of PW 3 Taggaram is taken as true, and there are no reasons not to take it as true, it can be safely said that Roopsingh stood surety for his grand-son-in-law Dalpatsingh and undertook to pay the remaining balance of purchase money in case it was not paid by Dalpatsingh.
9. It is true that there is no attestation by PW 3 Taggaram on Ex. A3, which is a counter part of Ex. 2. But it has been sufficiently explained by PW 3 Taggaram and his explanation does not appear to be incorrect. Ex. A3 is not the carbon copy of Ex. A2. It is a separately executed document, though executed on the same day i.e. April 18, 1962 when the transaction took place. PW 3 Taggaram has stated that Ex. A3 was not executed in his presence and as such his attestation on Ex. A3 did not take place. The explanation appears to be convincing and true.
10. There are then various other circumstances which' go to show that defendant Roopsingh stood surety for his grand-son-in-law Dalpatsingh. He made not one but three payments to the plaintiff by bank cheques. The first of Rs. 1000/- was made at the very time of the transaction; the second of Rs. 4000/- was made on July 14, 1962 and the third of Rs. 1000/- was made on July 20, 1962. In case Roopsingh did not stand surety for Dalpatsingh he would not have made these payments on his behalf to the plaintiff. There is no convincing explanation by Roopsingh as to how he made these payments to the plaintiff in case he was not a surety and did not undertake to make the payment.
11. Before filing the suit, the plaintiff issued notice Ex. 5 to both the defendants, calling upon them to make the payment of remaining balance of Rs. 5000/- together with interest. In notice Ex. 5, the entire transaction was recited and it was clearly mentioned that defendant Roopsingh had stood as surety and had undertaken to pay the remaining balance. Defendant Roop Singh gave reply of this notice Ex. 5. The reply is Ex. 6, which is on a postcard. Now, in Ex. 6 he no where stated that notice Ex. 5 was wrong and that the allegations of his standing surety and his undertaking to pay the remaining balance of the amount were wrong or unfounded. Thus, defendant Roopsingh had the earliest opportunity to deny his liability and to repudiate the allegation of his standing as a surety. But he remained silent and did not controvert the fact in his reply Ex. 6. His not repudiating his liability as surety in his reply Ex. 6 speaks volumes against him. In Ex. 6 he merely sought time to settle the matter. There is then Ex. A5 dated March 31, 1963 addressed by Roopsingh to the plaintiff. In it, also, he did not repudiate the fact that he was not a surety for Dalpat Singh. By this letter Ex. A5, he wanted to settle the matter amicably. There are then letters Ex. 7, Ex. 8 and Ex. 9 addressed by Roop Singh to the plaintiff. In these letters, Roop Singh again called upon the plaintiff to see him to settle the matter. All these letters, when read together, along with the recitals in Ex. 2, go to show that defendant Roopsingh had, in fact, stood surety for Dalpatsingh and undertook to pay the money on his behalf. The stand taken by him through out before filing the suit destroys his defence that he did not stand surety for Dalpatsingh or that he had signed Ex. 2 only as an attesting witness.
12. A bare look into Ex. 2 also reveals that Roopsingh had not appended his signatures on it as an attesting witness. It is in the knowledge of everybody that the attestation is made by a witness beneath the signatures of the executant. In Ex. 2 the signatures 'witness Roopsingh' marked X to Y and the signatures of defendant Dalpatsingh are in the same line. The attesting witness does not attest the deed before the signatures of the executant. Therefore, Roopsingh could not have attested Ex. 2 before it was signed by defendant Dalpatsingh. The words 'witness Roopsingh' marked X to Y appear on the left side just adjacent to the signatures of the other defendant Dalpatsingh which are on the right side. It shows that defendant Roopsingh had appended his signatures before the defendant Dalpatsingh had signed it. This shows that Roopsingh had not appended his signatures as an attesting witness but in his capacity as surety. It may be mentioned that the attestation C to D made by PW 3 Taggaram on Ex. 2 appears beneath the signatures of both the defendants. Had defendant Roopsingh been only an attesting witness, the signatures would have appeared as that of PW 3 Taggaram.
13. I have gone through the statement of defendant Roopsingh. He does not appear to be a witness of truth. Though he alleged himself to be an attesting witness of Ex.2, he stated that he had attested Ex. 2 at his house and that at that time defendant Dalpatsingh was not present. He admitted that he had put his attestation on Ex. 2 without obtaining any admission or acknowledgement from Dalpatsingh that he had executed the document. If defendant Dalpatsingh was not present at that time and the attestation was made by Roopsingh without ascertaining the fact of execution of Ex. 2 from Dalpatsingh, how he could be taken to be an attesting witness. Thus, what he states about attestation is absolutely wrong and unfounded. The way in which he has exhibited his conduct imple me to hold that no reliance can be placed on what he stated.
14. In view of all these circumstances, merely by prefixing the word 'witness' by defendant Roopsingh before his signature on Ex. 2, it cannot be said that he was only an attesting witness and did not append his signatures as a surety. The mere pre-fixing of the word 'witness' is not sufficient to hold that he appended his signatures as an attesting witness. The prefixing of word 'witness' before his signatures in no way helps him. The lower appellate court was perfectly justified in concluding that appellant Roopsingh stood surety for his grand-son-in-law Dalpatsinghand undertook to pay a sum of Rs. 10,000/-to the plaintiff. It was because of his standing as a surety that he made the payments of Rs. 4000/- and 1000/- to the plaintiff subsequently after the execution of Ex. 2. This finding appears to be correct and requires no interference.
15. For the reasons stated above, I find no force in this appeal of the defendant Roopsingh.
16. In the result, the appeal is dismissed with costs.