1. In the first instance this appeal came before Patanjali Sastri J. who was of the opinion that it involved the consideration of the judgments of this Court in Thayammal v. Muthukumaraswami Chettiar A.I.R. 1929 Mad. 881 and Dawood Bowther v. Ramanathan Chettiar : AIR1938Mad43 which were regarded as being in conflict. In our opinion it is not necessary to embark upon a. discussion of these cases in order to decide this appeal. On 5th March 1927, defendants 1 and 2 executed a mortgage of the property in. suit in favour of two persons, Raju Chetti and Dhanapala Ghetti, to secure the payment of a sum of Rs. 250. Defendant 1 is the son of defendant 2. The plaintiff avers that on 14th October 1929, the mortgagees assigned the mortgage to him. On 6th March 1939, the plaintiff instituted a suit to enforce the mortgage and the appeal arises out of the decree passed in that suit. On 27th January 1932, defendant 4 purchased at a court sale the right, title and interest of defendant 1 in the property. All the defendants filed written statements, but the main contest was with defendants 2 and 4. Defendant 1 admitted the execution of the mortgage, but pleaded that it had been discharged by reason of the provisions of the Madras Agriculturists' Relief Act. His mother, defendant 2, specifically denied the execution of the deed of mortgage. She admitted that she had placed her thumb impression on a document, but, she alleged that she had been told that it was a deed partitioning the property between her and defendant 1. She further averred that the document had not been properly attested. Defendant 4 pleaded that the mortgage had been entered into in order to delay and, if possible, defeat him. He also alleged that the assignment to the plaintiff was without consideration and 'sham and nominal.' The District Munsif of Chingleput, in whose Court the suit was filed, held that the mortgage deed and the deed of assignment were genuine documents and had been validly executed. Accordingly he passed a preliminary decree for sale as against defendants 1, 2 and 4.
2. The District Munsif's decision was reversed by the District Judge of Chingleput. The District Judge held that the mortgage was a sham transaction, entered into between defendant 1 and the mortgagees with the object of defeating defendant 4. This finding of fact would be binding on us, if the District Judge had taken into consideration all the material evidence, but obviously this he has not done. He has dealt with the question of the validity of the mortgage in a very perfunctory manner and has ignored evidence which, in our opinion, clearly shows the genuineness of the mortgage. The District Judge found the mortgage to be a sham transaction because at the time it was entered into defendant & was endeavouring to attach before judgment the same property and the plaintiff had refrained from taking steps to enforce the mortgage for a period of ten years, notwithstanding that defendant 2 had denied the validity of the transaction when he gave her notice of the assignment. The effort on the part of defendant 4 to secure an order of attachment before judgment and the delay in the institution of the suit are, of course, factors to be taken into consideration, but they are not necessarily the deciding factors. The evidence which the District Judge failed to consider is this: Raju Chetti and Dhanapala Chetti obtained a money decree against defendant 1 in S. C. Section No. 933 of 1925 and in execution of that decree they attached and brought to sale the property now in suit. In order to prevent the sale being confirmed defendant 1 paid a sum of Rs. 180 to the mortgagees, which left Rs. 250 owing to them. As security for the balance of Rs. 250 the mortgage in suit was executed, and when this had been done the sale was set aside.
3. The mortgage deed has been exhibited in this case and Dhanapala Chetti has proved the circumstances under which it was executed. When this evidence is taken into consideration it cannot reasonably be said that the transaction was a mere sham. It does appear that defendant 2 now claims the property to be hers, but the question whether she shares it with defendant 1 has not been decided. As we shall presently show the mortgage deed cannot be enforced against defendant 2, but this is obviously no ground for regarding the mortgage as being a bogus transaction. The plaintiff did not call either of the attesting witnesses, and the Court has at this stage to decide what is the effect of this neglect? As defendant 1 admitted execution, the mortgage deed is clearly enforceable against him, that is, enforceable to the extent of his right, title and interest in the mortgage property; but defendant 2 specifically denied the execution of the mortgage deed and the failure on the part of the plaintiff to call the two attesting witnesses or one of them is fatal to his case against her. Section 68, Evidence Act, states that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. Then follows a proviso which states that it shall not be necessary to call an attesting witness in proof of the execution of a document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied. As defendant 2 specifically denied execution this section clearly made it incumbent on the plaintiff to call one of the attesting witnesses to prove the mortgage.
4. We have now to consider whether the mortgage is enforceable against defendant 4. His learned advocate has contended that the averments in his written statement also amount to a specific denial of execution and that he is in the same position as defendant 2. We are unable to accept this contention. In his written statement defendant 4 attacked the mortgage deed on the ground that it represents a sham and nominal transaction, entered into by defendants 1 and 2 in order to defeat him. This is not a specific denial of execution. A document may represent a sham transaction, notwithstanding that it has been executed by the person who is mentioned in the document as being the executant. In order to call in aid Section 68 defendant 4 had to deny execution, which he did not. Defendant 4 did not acquire any interest of defendant 2 in the property. He merely bought the right, title and interest of defendant 1. As defendant 1 had before this purchase mortgaged his right, title and interest in the property, whatever it might be, and the mortgage had been assigned to the plaintiff, defendant 4 stands behind the plaintiff. Defendant 4 has, of course, the right to redeem the mortgage. If he does not redeem and the property is sold, he will be entitled to be paid out of any surplus there may be after the discharge of the amount due to the plaintiff.
5. When the plaintiff's evidence was about to be concluded defendant 4 sought the leave of the Court to the amendment of issue 1 which as originally framed read as follows:
Whether the suit mortgage is true, valid and supported by consideration or was it a sham document calculated to defraud the rights of defendant 4
The application was for the insertion of the words 'and subsisting' between the word 'consideration' and the word 'or.' Apparently the object of defendant 4 was to lead evidence to prove that the land in suit had been sold by a revenue Court and that he had acquired a patta from the landholder. Defendant i succeeded in inducing the District Munsif to make the amendment, but when he came to deliver his judgment the District Munsif obviously repented of so doing, because he refused to consider this question. His reasons were that the point had not been taken in the written statement and the opposite party had not been given an opportunity of meeting the new case which defendant 4 wished to set up. It is regrettable that the amendment of the issue should have been allowed. Defendant 4 says that he obtained the patta in 1937, but he made no mention of it when he filed his written statement on 9th 'January 1940. It was far too late at the close of the plaintiff's case to allow defendant 4 to set up a new case. The application has been renewed in this Court, but we see no reason to differ from the District Munsif. It would mean the remading of the case for the taking of farther evidence and the plea was raised too late in the trial Court. The result is that the appeal will be allowed and there will be a preliminary mortgage decree passed against defendants 1 and 4. Three months time will be allowed for redemption. The suit will be dismissed as against defendant 2. The appellant is entitled to his costs as against defendants l and 4, but he will pay the costs of defendant 2.