1. The Dacca Co-operative Housing Society Ltd. (now in liquidation) a society established under the Co-operative Societies Act (Act 2 of 1912); brought a suit against the appellants as the legal representatives of one Bhaba Sankar Sen. The case of the plaintiff is that Bhaba Sankar Sen who was a member of that co-operative society borrowed money from the society on three occasions and for securing re-payment thereof he executed three mortgage bonds for Rs. 8000, Rs. 2240 and Rs. 5560, on 10th July 1929, 30th June 1932 and 30th June 1932 respectively. Those bonds have been marked as Exs. 3(e), 2(h) and 1(h) respectively. All the bonds provided for payment of interest at the rate of 8 per cent. per annum and the monies were payable according to the terms of the mortgage instruments in ten yearly installments. The further allegation made in the plaint was that a sum of Rs. 150 was paid by Bhaba Sankar as interest on 15th September 1937 on the first bond, another sum of Rs. 150 on 9th November 1937 on the second bond, and a further sum of Rs. 180 was paid on 22nd November 1937 on the third bond and that no further payments had been made by him. The suit is for the enforcement of the said bonds against the appellants who are the legal representatives of the said Bhaba Sankar Sen. Many defences were taken to the suit. They were all overruled by the learned Subordinate Judge who decreed the plaintiff's claim in full by his decree, dated 17th September 1941. The appeal is directed against the said decree.
2. Mr. Mukherji, who appears for the appellants raises four contentions before us namely, (1) that there is no legal evidence to prove the attestation of the second and the third mortgage bonds Exs. 2(h) and 1(h); (2) that on the evidence the learned Subordinate Judge should have held that no consideration had passed; (3) that in view of Section 5(b), Co-operative Societies Act, (Act 2 of 1912) no decree could be passed on the second and third mortgage bonds inasmuch as Bhaba Sankar could not in law hold all the shares on the basis of which the loans had been given to him and (4) that in any event installments should have been granted under the Bengal Money-Lenders Act inasmuch as Rule 25 of the rules framed by the Local Government under the said Co-operative Societies Act had been contravened. We will take up the points in the order enumerated above. (1) As we have already stated, this point does not cover the mortgage bond for Rs. 8000 which was executed by Bhaba Sankar on 10th July 1929, for one of the attesting witnesses to that bond, namely Jnan Ranjan Ghose Choudhury, has been examined. He has proved that in his presence and in the presence of other two attesting witnesses whose signatures he proved Bhaba Sankar had signed the said bond. The position with regard to the second and third mortgage bonds stands thus: The attesting witnesses, who are three in number, are common. They are Mati Lal Dey Majumdar, Supati Nag, and Babu Lal Basak. None of those persons could be examined in the circumstances which we will relate later on. Their signatures only were proved by Jnan Ranjan Ghose Choudhury. It is proved by evidence that all the three witnesses are alive and, at least two of them, Mati Lal and Supati were then living in the town of Dacca where the suit was instituted. It is in these circumstances that Mr. Mukherji contends that the attestation has not been proved in view of enactment contained in Section 68, Evidence Act. The learned Subordinate Judge got over the difficulty by stating that the case fell within the proviso to that section. The learned Subordinate Judge's reasons are as follows: that as Bhaba Sankar admitted the execution in the presence of the Sub-Registrar at the time when the said two mortgage bonds were presented for registration attestation need not be proved by calling any one of the attesting witnesses even if alive and available. In the suit however the legal representatives of Bhaba Sankar have specifically denied execution. We cannot agree with him as the proviso would apply only if there is no specific denial of execution in the suit itself. If, however, in the written statement in the suit filed either by the mortgagor or by his legal representative there is denial of execution the mortgagee must examine at least one of the attesting witnesses if any one of the attesting witnesses be alive and be subject to the process of the Court unless the matter comes within Section 69, Evidence Act. The question therefore will have to be considered by us apart from what the learned Subordinate Judge has said in his judgment on the subject.
3. The suit was instituted in 1937. It became ready for hearing in 1941. The first relevant date for hearing was 18th August 1941. That date had been fixed at the instance of the plaintiff on the ground that summons upon one of the attesting witnesses had been returned unserved. On 3rd July 1941, the plaintiff applied for summons on all the three attesting witnesses, Mati Lal, Supati and Babu Lal. The Court issused summons on the said witnesses requiring them to be present in Court on 18th August 1941, the date fixed for the hearing. The summons on all the three witnesses were duly served but they failed to appear in Court on 18th August 1941. The plaintiff thereupon applied for a short adjournment in order that he may take out summons again. The Court had no other work for the day and so it insisted upon the case going on. On that date the plaintiff examined his witness 1 Jnan Ranjan. This witness occupied the whole of that day and as the Court was likely to be engaged in sessions the plaintiff's prayer for adjournment was allowed at the fag end of the day. The hearing was fixed for 25th August 1941. On 21st August 1941, the plaintiff again applied for summons upon those witnesses and agreed to pay urgent fees for summons. Summons was issued and urgent fees for service were duly paid. The witnesses were again served but they failed to appear on the date fixed for hearing, namely, 25th August 1941. On 25th August 1941, the Court was however engaged in trying a sessions case. The hearing was therefore adjourned to 1st September 1941. As the Court was in the midst of a sessions case, the matter was mentioned in order to ascertain whether the case would be taken up on 1st September 1941 as originally fixed. The Court intimated that it would not be free till 5th September 1941. The hearing was accordingly postponed till that date. On 2nd September 1941, the plaintiff again applied for summons on the said witnesses and paid special costs. Summons was again issued by the Court requiring the witnesses to attend on 5th September 1941. The summons was duly served but again the witnesses did not appear. The case was taken up on that date. The plaintiff's witnesses who were present were examined on that date and on the following day, namely 6th September 1941. On 6th September, the plaintiff applied to the Court to issue warrant or to take such other steps under Order 16, Rule 10, Civil P. C., as it thought fit in order to compel the attendance of the three attesting witnesses. The Court however summarily rejected the prayer. The plaintiff recalled their witness Jnan Ranjan who proved the signatures of the attesting witnesses Mati Lal, Supati and Babu Lal. The Court thereupon marked the signatures on the three mortgage bonds as exhibits in the case. 7th September was a Sunday and 8th was a local holiday. The diary of the Court showed that the 9th was a day fixed for the sessions. In fact, this case could not be taken up on account of that sessions case till 11th September when the defendants first led their evidence by examining Anil Sankar Sen, one of the sons of Bhaba Sankar. These are the facts on which we are to determine whether examination of at least one of the attesting witnesses were imperative. Mr. Mukherji contends that in view of the interpretation given to Sections 68 and 69, Evidence Act, in a series of cases it must be held that attestation has not been proved. It is not necessary for us to notice all the cases cited before us by Mr. Mukherji, because the law is settled. One of the cases cited by him would be sufficient. That is the case in 31 C. W. N. 215 ('27) 14 A. I. R. 1927 Cal. 102: 98 I. C. 147: 31 C. W. N. 215, Gobinda Chandra v. Pulin Behari. In that case Mukherji J., in delivering the judgment of the Division Bench, observed thus at p. 218 of the report:
The mere fact that only the surviving attesting witness is considered hostile by the party does not relieve him from the duty of examining him as a witness, and this has been held in 1 Pat. L. J. 369 ('16) 3 A. I. R. 1916 Pat, 102:1 Pat. L.J. 369:38 I. C. 604, Tula Sing v. Gopal Singh.. Nor is it enough that summonses and warrants had been issued upon the witness and the witness had failed to appear; and it has been so held by the Court in 27 C. W. N. ix ('23) 27 C., W. N. ix (Notes), Piyari Sundari Radha Krishna merely taking out summons and warrants is not enough to comply with the provisions of Section 68, but the processes of the Court such as are mentioned in Order 16, Rule 10, Civil P. C., have all got to be exhausted.
4. As we have already stated, that proposition of law cannot be challenged at this date. In order that Section 69, Evidence Act, may be applied, mere taking out of the summons or the service of summons upon an attesting witness or the mere taking out of warrant against him is not sufficient. It is only when the witness does not appear even after all the processes under Order 16, Rule 10, which the Court considered to be fit and proper had been exhausted that the foundation will be laid for the application of Section 69, Evidence Act. The party, namely, the plaintiff, must move the Court for processes under Order 16, Rule 10, Civil P. C., when a witness summoned by him has failed to obey the summons but when the plaintiff does move the Court but the Court refuses the process asked for we do not see why Section 69, Evidence Act, cannot be invoked. The other view would place the plaintiff in an impossible position when the witness is an attesting witness to the document on which he has brought the suit, and the Court refuses coercive processes contemplated in Order 16, Rule 10, Civil P. C. We do not agree that he would be still required to comply with the provisions of para. 1 of Section 68. If that paragraph of Section 68 still be held to apply it would only mean a dismissal of the suit for the enforcement of the mortgage security.
5. Even if the view that we are taking be not the right view we think that this would be a a case of technical remand. We have already pointed out that two attesting witnesses, Supati and Mati Lal were then in the town of Dacca where the trial was going on. Warrants were applied for on 6th September. The 7th and 8th September were holidays and the 9th was a date fixed for a sessions case. In fact, this case could only be taken up on the 11th. If on the 6th the Court had granted the plaintiff's prayer and had issued warrants those warrants could have been executed before the case was taken up after the holidays. On these facts if we had agreed with the contention on the point of law raised by the appellants, we would have been bound to remand the case to the lower Court in order that the lower Court may help the plaintiff by issuing out processes under Order 16, Rule 10, Civil P. C., against those witnesses. But on the facts of the case we consider that the remand would be at most a technical one. The evidence discloses that those attesting witnesses had borrowed money from the society almost at the same time as Bhaba Sankar. The fact that they had disobeyed three summonses shows which way the wind was blowing. If they were brought before the Court under arrest they could have taken up one of two positions. They could have either deposed in favour of attestation and then the plaintiff's case would be proved or they might deny attestation: in that case they would be hostile in the technical sense, as their conduct shows that they were putting difficulties in the plaintiff's path. These were the considerations which weighed with Greaves and Mukerji JJ., in 31 C. W. N. 215, and for similar reasons they refused to make a remand although on the point of law, namely, on the construction of S3. 68 and 69, Evidence Act, they agreed with the appellants' contention. We accordingly overrule this point urged by the learned advocate for the appellants.
6. We do not agree with him that there is no proof of the passing of consideration. In the mortgage instruments there are admissions by the mortgagor that he had received the monies. The onus would therefore be on the mortgagor or his legal representatives, be they adults or minors, to prove the contrary. There is no rebutting evidence. In fact, there is corroboration that the principals mentioned in the mortgage instruments had been advanced by the society. The audited cash books corroborate that fact. The two mortgage instruments which were executed on 80th June 1932, recite that the loans which they secured had been granted on 16th January 1930. The cash book shows that the sum of Rs. 5560 for which Ex. 1(h) was executed was advanced on 16th January 1930 but the sum of Rs. 2240 for which Ex. 2(h) was executed had been advanced not on 16th January 1930 but on 14th August 1930. The recital therefore of the date of the loan in Ex. 2(h) is obviously a mistake. We therefore hold in agreement with the learned Subordinate Judge that there was consideration for all the mortgage bonds.
7. The cash books show that when the sum of ES. 8000 was taken by Bhaba Sankar on 10th July 1929 he had ten shares, worth RS. 800. Under the rules framed by the Local Government those ten shares entitled him to have a loan of ES. 8000, that is to say, he was entitled to have a loan up to ten times the value of the shares he held. On 16th January 1930, he got seven shares more. That is quite evident from the fact that he paid on that date the price of those shares possibly out of the loan he took. Those further seven shares entitled him to have a loan of Rs. 5600 and he took a loan of Rs. 5560. The cash book of 14th August 1980 shows that on that date he took three more shares valued at Rs. 240. Those shares entitled him to a loan of ES. 2400 and he took only Rs. 2240 on that date. The learned Subordinate Judge overlooked the entries in the cash book when he came to the conclusion that Bhaba Sankar had in all ten shares. The correct reading of the documentary evidence would be that Bhaba Sankar had twenty shares on which the loans were taken. Mr. Mukherji however raises the following question: that Bhaba Sankar could not be given, in view of Section 5(b), Co-operative Societies Act, (Act 2 of 1912) shares exceeding Rs. 1000 in value. The twenty shares which were issued to Bhaba Sankar would be worth much more than Rs. 1000. This contention of Mr. Mukherji does not appear to us to be sound. The lawyers of both sides in the lower Court and the advocates of both sides appearing in this Court were in the dark as to the correct state of things almost up to the last moment. At the last moment a notification, being No. 812 T. A. I. dated 30th September 1926 (published in the 'Calcutta Gazette' of 1926, part 1, p. 1502) issued by the Local Government under Section 46, Co-operative Societies Act 2 of 1912, was discovered by Mr. Chatterji, who is appearing for the respondent. That notification runs thus: (1) In Clause (b) of Section 5 for the words 'one thousand rupees' the words
five thousand rupees or the value of the house to be owned by the member or the proportionate cost of the tenement to be occupied by him whichever is greatest shall be substituted.
for the purposes of applying that section to co-operative housing societies in Bengal. Bhaba Sankar was therefore entitled at least to shares worth Rs. 5000. In view of that notification this contention raised by Mr. Mukherji must be overruled.
8. The last contention of Mr. Mukherji is based on Rule 25 which provides that whenever a co-operative society grants a loan of Rs. 1000 or upwards that fact is to be communicated by the society to the Registrar appointed under the Co-operative Societies Act. This point was raised in para. 24 of the written statement. We do not consider this to be a good defence to the suit. Rule 25 of the rules framed by the Local Government which requires the co-operative societies to inform the Registrar appointed under the Act whenever a loan exceeding RS. 1000 is granted is a rule intended to have a salutary check upon the activities of co-operative societies. It is a sort of departmental rule the breach of which would be a matter between the particular co-operative society and the Registrar but would not make the loan given to be a invalid one nor a loan not given by a co-operative society. We do not think that the breach of that rule improves the position. We accordingly overrule all the points taken in appeal and dismiss the appeal with costs.
9. I agree.