1. In a neat, concise and pointed argument Mr. Thyagaraja Ayyar has taken three points in this case, with which I shall presently deal. It is necessary, however, for me to set forth a few facts before I actually deal with those points.
2. The suit out of which this second appeal arises was instituted for the cancellation of a certain order made on an application for re-delivery by the plaintiff. The circumstances in which the application for re-delivery was made are these. The present defendant, appellant before me, is the auction purchaser in execution of a certain decree by a third party against one Kumaraswami Mudali. The purchase was in September, 1942, and the Court delivery pursuant thereto was in October, 1942. The present plaintiff applied for re-delivery on the ground that his younger brother Selvaraja Mudaliar had a usufructuary mortgage, Exhibit P-1, of the year 1936, from Kumaraswami and that there was later, in the year 1940, a release by him of the mortgage right in the plaintiff's favour. I he application was dismissed and the present suit was filed for setting aside the order of dismissal. The case of the defendant, it may be stated, is that the usufructuary mortgage in favour of the plaintiff's younger brother was a sham and nominal document. This plea was rejected by the Courts below and the suit has been decreed.
3. The first point raised is that although the concurrent finding of fact of the Courts below is that the usufructuary mortgage in favour of the plaintiff's younger brother is a real and not a sham document, the finding of the lower appellate Court suffers from the infirmity that it does not deal with a particular point of detail, which the trial Court found in regard to Exhibit P-5, viz., that although it was not a fabrication, it was an ante-dated document. This Exhibit P-5 is a letter passed by Kumaraswami to the plaintiff's younger brother Selvaraj which states that the usufructuary mortgage, Exhibit P-1 is a real document. Exhibit P-5 bears the same date as Exhibit D-1 which is a letter by Selvaraj in favour of Kumaraswami to the effect that the usufructuary mortgage was a nominal document. The Courts below had to choose between Exhibit D-1 and Exhibit P-5 and pronounce upon the reality or otherwise of the usufructuary mortgage. There was other material too which the Courts below had to consider for the purpose of their conclusion on the question whether the usufructuary mortgage was a sham or a real document. In spite of the fact that the question whether Exhibit P-5 is, or is not, an ante-dated document, has not been quite explicitly considered by the lower appellate Court, I am satisfied that there is really no ground made out for interference with the finding of the lower appellate Court that Exhibit P-5 is a real document. After all, the presumption is that a document was executed on the date which it bears and I must take it that the lower appellate Court was not satisfied that the presumption in law to that effect in any way stood displaced in the present case.
4. The next point urged by Mr. Thyagaraja Aiyar is that the usufructuary mortgage, which is a document required by law to be attested, cannot be used as evidence in. the present case because there has been no compliance with the requirement of Section 68 of the Indian Evidence Act. The document is attested by two persons -one Raman Nair and one Singaravelu. In regard to these two persons what the appellate Judge finds is that nobody knows where the one man is and so far as the other is concerned he was summoned as a witness by the plaintiff but did not appear in pursuance of the witness summons. The Courts below seem to have therefore thought that under Section 69 of the Indian Evidence Act, if there was evidence about the handwriting of the attestation of the attesting witness or witnesses that would be quite sufficient proof of the mortgage document. So, says the learned appellate Judge in paragraph 14 of his judgment:
the execution of Exhibit P-1 has been spoken to by Selvaraj examined as P.W.I. He deposed that Kumaraswami Mudali executed it and that witnesses duly attested it. No questions were put in cross-examination to P.W. I about this matter. P.W. 2 is a document writer who wrote Exhibit P-1. He deposed that he wrote it; that witnesses duly attested it and that he also witnessed the execution. The only question put in cross-examination to him about this matter was that he has not signed Exhibit P-1 as an attestor but signed it only as the scribe.
I am not satisfied that the view taken by the Courts below in regard to this aspect of the matter is erroneous. I consider that although in terms neither P.W. 1, nor P.W. 2 has stated that each particular attestation on Exhibit P-1 is in the handwriting of the particular attestor, that is substantially the gist of their evidence which the Courts below were entitled to accept as such.
5. Another interesting point has been raised by Mr. Thyagaraja Aiyar and that is that the ruling in Paramasiva Udayan v. Krishna Padayachi (1917) I.L.R. 41 Mad. 535 on which the lower appellate Court has relied for holding that the signature of the scribe P.W. 2 may itself be regarded as an attestation which stands duly proved by his evidence in the box, stands overruled by the decision of the Privy Council in Sarkar Barnard & Co. v. Alak Manjary Kuari . There the Judicial Committee summarily dismissed, as altogether hopeless, without itself discussing the merits, an appeal from a decision of the High Court of Patna which raised the question, whether a person who puts his signature to a mortgage deed, not in the capacity of a witness but only as signifying his approval of the transaction, is, or is not, an attesting witness. In the judgment of the High Court against which the appeal to the Privy Council was so dismissed, it is stated that a person whose name appears on the deed merely as a scribe is not such a witness as is required by Section 59 of the Transfer of Property Act although he might have actually seen the deed executed. It is also stated that it was impossible to distinguish the case of a person who puts his signature with a view to signifying his approval of the transaction evidenced by the deed from the case of a scribe who signs the document after seeing its execution by the executant. On the strength of these observations, it is contended by Mr. Thyaga-raja Aiyar that the ruling of this Court in Paramasiva Udayan v. Krishna Padayachi (1917) I.L.R. 41 Mad. 535 that in all such cases the real question is whether the scribe was also in fact a witness to the execution of the document is erroneous. I am not satisfied that this argument is sound. The ruling of this Court in Paramasiva Udayan v. Krishna Padayachi (1917) I.L.R. 41 Mad. 535 as well as the Privy Council ruling in Sarkar Barnard & Co. v. Alak Manjary Kuari are both referred to in Mullah's Commentary on the Transfer of Property Act, third edition at page 19 side by side with each other in the foot-notes in a passage which I may here quote. Says the learned commentator:
It is also necessary that the attesting witness should have signed for the purpose of authenticating the signature of the executant, and not as a scribe or as a person merely indicating his consent to the transaction. A scribe, however, may perform a dual role. He may be an attesting witness as well as the writer. The fact that he signed as an attesting witness must be properly proved.
I am of opinion therefore that the soundness of the ruling in Paramasiva Udayan v. Krishna Padayachi (1917) I.L.R. 41 Mad. 535 stand unaffected by the decision of the Judicial Committee in Sarkar Barnard & Co. v. Alak Manjary Kuari . It is a question in each case which turns upon its own circumstances whether a scribe can, or cannot be, regarded as an attesting witness. In the result this second appeal fails and is dismissed with costs.