1. The learned District Judge on appeal to him by the 8th defendant in the case held that the mortgage-deed on which the suit was founded was invalid and, therefore, the suit failed. He based his judgment principally on his finding that the mortgage-deed was improperly attested and the first point raised before me in second appeal by Mr. Anantakrishna Iyer for the appellant is that the learned District Judge was debarred from considering this point, as it is not taken in the pleadings, in the issues or agitated before the District Munsif. In the pleadings the written statement of the 7th defendant states that the mortgage-deed is not supported by consideration and that the two assignments referred to in the plaint are fraudulent and have no consideration to support them. The 8th defendant pleaded that the original mortgage and the several assignments thereon are not bona fide but simply sham and collusive transactions and are not supported by consideration and that hence they are not binding on him. The issue raised was the single issue as to whether the suit mortgage-bond was genuine and executed for consideration. The judgment of the learned District Munsif begins thus: P.W. No. 1 is the original mortgagee and P.Ws. Nos. 2 and 4 are attestators to the suit mortgage-deed, Ex. A. They prove the mortgage-deed.' There is not another word about attestation in the Munsif's judgment. Now, this question was obviously agitated before the learned District Judge in the lower Appellate Court and he says as follows: P.W. No. 2 says that when he came the executant said he had signed and asked him to attest. He did not see the executant sign nor did he see the other attestator sign' Now what the witness really said is 'I have attested this mortgage-deed, Ex. A. The mortgagor signed in Ex. A in my presence. Velayuda Mudali said he had executed it and asked me to attest it. The document was complete and it was executed when I attested, Ellappa Mudaliar was present when I attested.' There is no suggestion in the evidence that I can see, that the witness came after the document had been signed, and that what the executant did was to acknowledge his signature before him. The evidence to my mind is consistent with the mortgagor signing in the presence of the witness. The executant said he had executed and asked him to attest. The document was complete when he, P.W. No. 2, and the other attestator, P.W. No. 4, were present. Now much has been made of the cross-examination of this witness, P.W. No. 2, viz.: 'At the time of writing Ex. A, I was at Thirukalikundaram. I was living in my own native place then. P.W. No. 1 asked to me to attest Ex. A at Adilakshmi Ammal's chatram where it was written. I attested it.' It is quite obvious that the witness could not be in two places at once. Either Adilakshmi Ammal's chatram is at Thirukkalikundaram or the witness means he was living at the latter placeat the time of writing Ex. A. The learned District Judge says 'P.W. No. 4 merely says 'I attested it,' he does not say he saw it executed or attested.' P.W. No. 4 says 'I know of the mortgage-deed executed by Velagutha Mudali to P.W. No. 1. I have attested it.' In cross-examination he says 'I do not know whether Thangavely Mudali was present when I attested Ex. A. I think he was present then.'
2. Now the question is whether in these state of things, the question of attestation could be allowed to be raised for the first time in appeal as a mixed question of law and fact under the ruling in Rangaswamy Ayyangar v. Veeraraghavachary 76 Ind. Cas. 1003: (1923) M.W.N. 789 :. A.I.R. 1924 Mad. 513 where Hughes, J., and myself held that the objection that a mortgage-bond was not validly attested could not be allowed to be taken for the first time in the Appellate Court, as it raises such a question; or whether this case can be distinguished from that case, and the case must be sent back to the District Court on the question of the misconstruction, as I hold it is, of the evidence of P.Ws. Nos. 2 and 4. The learned Vakil for the respondent has not attempted to show that this case does not come within the ruling I have quoted. He says that the point must have been agitated, because the attestators or at least the first of them, was cross-examined at come length as to his attestation. I am unable to say that this shows that this question was ever properly raised. I have shown that it is not in the pleadings, nor in the issue, nor according to the; judgment of the learned District Munsif was there any argument upon it before him. Merely from the fact that the attestators were cross-examined I do not think it can fairly be said that this question was raised in the trial Court. I am, therefore, of opinion that on this point the second appeal must be allowed.
3. With regard to the point of Land Acquisition Act mentioned by the District Judge, the case is governed by the decision in Ramachandra Rao v. Ramachandra Rao 67 Ind. Cas. 408 : 30 M.L.T. 154 : (1922) M.W.N. 359: A.I.R. 1922 P.C. 80. As to that, therefore, the appeal is dismissed.
4. With regard to the genuineness of the assignment, that point has not been argued by the learned Vakil for the respondent and it is abundantly clear that the plaintiff is not entitled to go into it.
5. The learned District Judge, after setting. out that the only issue taken is whether the bond is genuine and executed for consideration, doe3 not consider that aspect of the case at all. He considers only the validity of the attestation, the point as to the money paid under the Land Acquisition Act and the genuineness of the assignment. The learned Vakil for the appellant admits that the respondents are entitled to a finding by the lower Appellate Court as to the genuineness of the suit mortgage-bond and its execution for consideration.
6. In the result, the decree of the lower Appellate Court will be reversed and the suit remanded to the lower Court for fresh disposal in the light of the foregoing judgment.
7. Proportionate Court-fee will be refunded. The appellant will have his co3ts in this Court. Costs in the lower Appellate Court will abide and follow the result.