1. The plaintiff sued on a mortgage-bond executed in his favour by the 1st defendant. The 1st defendant confessed execution and pleaded that of the consideration of Rs. 400, Rs. 7-4-0 was paid. The District Munsif accepted this plea, but on appeal the Subordinate Judge has reversed his judgment and decreed the plaintiff's claim in full. The 1st defendant prefers this second appeal.
2. On the question of consideration, I cannot accept the view that the Sub-ordinate Judge in coming to his conclusion, has overlooked such obvious parts of the evidence as have been referred to by the District Munsif in para. 15 of his judgment, such for instance as the youthfulness and profligacy of the mortgager, 1st defendant, and the astuteness of the plaintiff. It appears to me that he has weighed the probabilities of this part of the case, and his finding being one of fact I cannot interfere in it.
3. The appellant, however, raises the question whether the mortgage-deed was duly attested. No issue was framed on this point, but the District Munsif, after considering the evidence of three reputed attestors, has given a finding that the deed has not been proved as a mortgage as required by Section 59 of the Transfer of Property Act. The Subordinate Judge after remarking that this point had not been raised by the 1st defendant and there was no issue upon it, adds
the evidence does not, in my opinion, justify the finding that Ex. A was not duly executed and attested.
4. I cannot regard this otherwise than as an expression of opinion that no finding was necessary on this point: It certainly does not amount to a finding to say, without discussing the evidence, that it does not show that the mortgagebond was not duly attested.
5. The question then arises whether it was unnecessary, as the Subordinate Judge thinks to decide this point. The 1st defendant's written statement which contains an acknowledgment does not, however, dispense with the necessity of proving due attestation. This is clear from the judgment of the Privy Council in Hira Bibi v. Ram Hari Lal . It has to be found, independently of the acknowledgment of the 1st defendanf's execution, that the mortgage-deed was valid as satisfying the requirements of Section 59 of the Transfer of Property Act regarding attestation. Although there was no issue, the witnesses were examind and cross-examined on this point and it is, I think, the duty of the Court, as it certainly has the power, to satisfy itself that the mortgage-bond was validly executed before granting a decree on it. The question whether a mortgage-deed was duly attested arose in another Privy Council case: Shamu Patter v. Abdul Kadir Bowthan  35 Mad. 607. In that case the trial Court, after closing the trial, framed an issue and held that the document was invalid. This procedure was impugned on the ground that it had acted irregularly and without jurisdiction in framing an issue after the arguments and deciding the case on it. Their Lordships ruled that there was no infraction of the terms of the Civil P. C., and added:
Even had there been no such express provision in the Code, their Lordships consider every Court trying Civil causes has inherent jurisdiction to take cognizance of questions which cut at the root of the subject-matter of controversy between the parties.
6. It is true that no issue at all had been framed in the present case, but the omission does not appear to me to preclude the application of this principle since it is clear that the question was present to the minds of the parties.
7. I have then to consider whether to frame an issue and remand the case for a finding by the lower appellate Court or whether to record the finding myself. After hearing the parties on this point I have decided to frame the isssue
whether the mortgage-deed was validly attested in accordance with Section 59 of the Transfer of Property Act:
and remand the suit to the lower appelate Court for a finding on the evidence already on record, which will then dispose of the case in accordance with it. Costs in this Court to abide the result.
8. Court-fee on appeal petition to be refunded.