1. We think that, on the pleadings, the question was not raised whether the document Exhibit B was invalid as a mortgage, on the ground that it was not attested by two persons who saw the executant sign the document. Taking it that it was raised by the defendants during the trial, the District Munsif ought to have framed a supplemental issue on this new question, given an opportunity to the parties to adduce evidence thereon and then decided it.
2. In the case of Shamu Patter v. Abdul Kadir Rowlhan 16 Ind. Cas. 250 : 35 M.P 607 : 16 C.W.N. 1009 : 23 M.L.J. 321 : 12 M.L.T. 338 : (1912) M.W.N. 935 : 10 A.L.J. 259 : 14 Bom. L.R. 1034 : 16 C.L.J. 596 : 39 I.A. 220, a supplemental issue wis raised by the Court (though at a late stage) and there was no contention that the plaintiff had not been given sufficient opportunity to let in evidence on the supplemental issue.
3. We request the lower Appellate Court to frame the necessary issue and to give a finding thereon allowing both sides to adduce fresh evidence. [We might remark that neither of the lower Courts has definitely pronounced whether it believes the 1st defendant, the plaintiff's witness No. 2 and defendant's witness No. 1, when they deny that they (plaintiff's witness No. 2 and defendant's witness No. 1) saw the 1st defendant sign the mortgage-deed.
4. The finding will be returned in six weeks from the date of receipt of, records in the lower Appellate Court and ten days will be allowed for filing objections.
5. In compliance with the order contained in the above judgment, the District Judge of Trichinopoly submitted the following.
6. Finding.--I am asked for a finding 'whether Exhibit B is invalid as a mortgage on the ground that it was not attested by two persons who saw the executant sign the document?' No fresh evidence is adduced.
7. 2. Exhibit B is a mortgage-deed by 1st defendant to Arayar Rangachariar for Rs. 950. It is attested by three persons. Only one of them says he saw 1st defendant sign it. The other two say 1st defendant said he signed it, so they attested but they did not see him sign. The Munsif, therefore, found the mortgage was not-proved and plaintiff could claim no charge thereunder. It is argued now that P.W. No. 2 and P.W. No. 1 really lie when they say they did not see 1st defendant sign the document.
8. 3. The document purports to be for Rs. 950 made up of moneys due on three prior bonds. No consideration was paid at the time. P.W. No. 3 saw 1st defendant sign it. P.W. No. 2 says he attested the document and 1st defendant executed it. But in cross-examination he says he did not see this execution by 1st defendant and says the money was borrowed in cash for a present to a dancing girl--thus contradicting the terms of the document.
9. 4. P.W. No. 1 also attested the document, but did not see it signed by 1st defendant. He says Rs. 700 were paid in cash to 1st defendant and plaintiff lost Rs. 250 as discount. He also contradicts the terms of the document. This man was twice summoned by plaintiff and did not appear. He was finally summoned and examined by defendant, a circumstance that suggests that he really did see the signature of 1st defendant and was brought over.
10. 5. The written statement never raised this plea that the mortgage was invalid for want of attestation and I reject it as a subsequent plea to support which the two attestors were brought over. I find that Exhibit B was duly attested and is not invalid for want of attestation by two persons who saw the executant sign it.
11. This case coming on for final hearing after receipt of the finding of the lower Appellate Court on the issue referred to it for trial, the Court delivered the following.
12. Judgment.--The evidence of plaintiff's witness No. 2 in chief examination, though contradicted by him in cross-examination, must be taken to have been believed by the District Judge who finds that all three witnesses (including plaintiff's witness No. 2) were present at and saw the execution of the document.
13. We accept the finding and setting aside the decrees of the lower Courts, remand the suit to the District Judge for disposal of the appeal on the other questions in the case. Costs hitherto will be costs in the cause.