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Benoy Bhushan Roy Vs. Dhirendra Nath Dey - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1924Cal415
AppellantBenoy Bhushan Roy
RespondentDhirendra Nath Dey
Cases ReferredRohim v. Imam
Excerpt:
- .....his father. this view cannot be supported. section 70 provides that the admission of a party to an attested document, of its execution by himself, shall be sufficient proof of its execution as against him, though it be a document required by law to be attested. the subordinate judge interpreted this section to mean that the admission by the representative of a party to an attested document may be treated as sufficient proof of its execution. this view is unsustainable on the plain language of the section. the section speaks of an admission by a party to an attested document of its execution by himself, that is of its execution by the party concerned. an admission by the representative of a party to an attested document of its execution by the party cannot be treated as an [admission of.....
Judgment:

Mookerjee, J.

1. This is an appeal by the defendant in a suit to enforce a mortgage security. The document was executed on the 27th March, 1911, by the father of the defendant in favour of the father of the plaintiff to secure a loan of Rs. 3,500 which was to carry interest at the rate of 2 per cent, per month. The suit was instituted on the 9th February, 1920, by the son of the mortgagee against the son of the mortgagor. The plaintiff stated that as the original document had been lost, he produced a certified copy from the registration office. The defendant contested the claim on a two-fold ground : namely, first that there was no valid mort-gage bond, executed and attested in conformity with the provisions of Section 59 of the Transfer of Property Act; and secondly, that no consideration had been paid on the basis of the mortgage transaction. The Subordinate Judge has overruled these contentions and has decreed the claim. On the present appeal, that decree has been assailed on each of the two grounds urged in the trial Court.

2. As regards the first objection, the Subordinate Judge held that Section 70 of the Indian Evidence Act rendered it unnecessary for the Plaintiff to prove execution and attestation of the bond, inasmuch as the defendant, in his written statement, admitted execution of the bond by his father. This view cannot be supported. Section 70 provides that the admission of a party to an attested document, of its execution by himself, shall be sufficient proof of its execution as against him, though it be a document required by law to be attested. The Subordinate Judge interpreted this section to mean that the admission by the representative of a party to an attested document may be treated as sufficient proof of its execution. This view is unsustainable on the plain language of the section. The section speaks of an admission by a party to an attested document of its execution by himself, that is of its execution by the party concerned. An admission by the representative of a party to an attested document of its execution by the party cannot be treated as an [admission of the party to an attested document of its execution by himself. Apart from this, there is an additional difficulty in the way of acceptance of the view taken by the Subordinate Judge. In the present case; no doubt, the defendant admitted that the bond was executed by his father. At the same time, he specifically denied that the bond had been duly attested as required by law. In such circumstances, it is incumbent, upon tile party who relies upon the mortgage instrument, to establish that the document was attested as required by law. The case is covered, not by Nibaran Chandra v. Nagendra Chandra (1917) 22 C.W.N. 444 and Hatish Chandra v. Jogendra nath (1916) 44 Cal. 345, but by Arjun Chandra v. Kailas Chandra Das A.I.R. 1923 Cal. 149. It is consequently necessary for us to examine whether the document has been proved to have been duly attested.

3. It is not disputed that a mortgage bond is not duly executed and cannot operate as a mortgage unless it is in fact signed by the mortgagor in the presence of at least two witnesses who sign the document as attesting witnesses : Shamu Patter v. Abdul Kader (1912) 35 Mad. 607 and Ganga Pershad v. Ishri Pershad A.I.R. 1918 P.C. 3.We must accordingly examine whether this document was in fact signed by the mortgagor in the presence of at least two persons who affixed their signatures as attesting witnesses. The original has been lost, and we have on the record only a certified copy obtained from the registration office. The document shows on the face of it, that it was signed by the executant Rakhal Raj Ray. This is, indeed admitted by the defendant. At the foot of the document we have the signature of the scribe Shoshi Bhusan Ray. Thereafter, follow the names of two persons who are described as witnesses; these names are Haran Chandra Chatterjee and Bhusan Chandra Das. The document was executed on the 27th March, 1911 and as the endorsement made by the registering officer shows, was presented for registration on the same day by the mortgagor Rakhal Raj Kay. He admitted execution and was identified by Bhushan Chandra Das whose name appears on the deed as that of an attesting witness. On the strength of this admission of execution, the registration was completed. In the trial Court, the scribe Shoshi Bhushan Ray, though summoned as a witness did not appear to give evidence. Haran Chandra Chatterjee was examined on commission, Bhushan Chandra Das was duly summoned and was present in Court on the 18th March, 1921; but when the trial actually commenced he was not found and accordingly was not examined. The examination of Bhushan Chandra Das might not have been insisted upon by reason of the erroneous view taken by the Subordinate Judge as to the scope of Section 70 of the Indian Evidence Act; we consequently decided to give an opportunity to the parties to examine Shoshi Bhushan Ray and Bhushan Chandra Das. It was further alleged in the course of the argument that Haran Chandra Chatterjee, on the ground of pretended illness, avoided the Court and was examined on commission. We accordingly decided to summon Haran Chandra Chatterjee also for examination in this Court. These three persons have been examined here. Shoshi Bhushan Ray admits that he acted as the scribe; but he states that he was not present when the document was actually executed. Haran Chandra Chatterjee adheres to the statement he made in the trial Court that he was present at the time of execution of the document, that he saw the executant affix his signature thereto and that he thereafter put down his own name as that of an attesting witness. Bhushan Chandra Das states that at the request of the mortgagor he became a witness to the document. He admits that he did affix his signature to the document, but he has no recollection of any other circumstance in connection with the execution of the document. He admits that, on the day of execution, he was later on present at the registration office and that he identified the mortgagor Rakhal Raj Ray when the latter admitted execution before the registering officer. The question thus arises, whether on the facts stated, the inference may legitimately be drawn that the requirements of Section 59 of the Transfer of Property Act have been fulfilled; in other words, whether Rakhal Raj Ray executed the document in the presence of two persons who saw him execute the document and became attesting witnesses. As regards Haran Chandra Chatterjee there can, in our opinion, be no doubt that he was present, that he did see the execution and that he affixed his signature as an attesting witness. As regards Bhushan Chandra Das, we accept his testimony that he was present and affixed his signature as an attesting witness at the request of the mortgagor. But he was unable to recollect whether he actually saw Rakhal Raj Ray execute the document. The appellant contends that such evidence as this does not entitle the plaintiff to treat the document as a valid mortgage deed. We are not prepared to accept this contention as well-founded.

4. The principle applicable to cases of this character was considered by this Court in Joqendra Nath v. Nitai Churn [1903] 7 C.W.N. 348, by the Aliahabad High Court in Ram Dei v. Munnalal [1916] 39 All. 109, Uttam Singh v. Hukam Singh [1916] 39 All. 112, and Shib Dayal v. Sheo Ghulam [1916] 39 All. 241 and by the Madras High Court in Venkata Reddi v. Muthu [1920] 39 M.L.J. 463. In the first of these cases, Jogendra v. Nitai Churn [1903] 7 C.W.N. 348 the mortgage deed, on the face of it, showed that it was attested by two witnesses. One of them was the writer; but he denied execution of the deed by the mortgagor. This denial, however, was found to be false by the Court of appeal below. The other witness stated that the mortgagor signed in his presence, but he was not able to remember whether the mortgagor signed also in the presence of the writer. It appeared, however, on the face of the document, that the signature of the writer preceded that of the other witness. It was ruled by this Court that it might be fairly presumed that both signed as attesting witnesses after the execution of the document by the mortgagor and that such presumption might be made on the principle enunciated in Section 114 of the Indian Evidence Act. Reference was made to the decision in Burgoyne v. Showier [1844] 1 Rob. Eccl. 5. In that case, upon the face of the will, without a memorandum of attestation, there was a signature of the testator at the foot, as also the subscription of two witnesses. It was ruled by Dr. Lushington that, in the absence or death of witnesses, prima facie the presumption is that the testator signed in the joint presence of the two persons and that they subscribed in his presence. This principle was applied by the Allahabad High Court in the three cases mentioned where reference was made to Wright v. Sanderson [1884] 9 P.D. 149. These decisions were followed, as based on sound principle, by the Madras High Court in the case mentioned before. Reference may in this connection be made to the decisions in Blake v. Blake [1882] 7 P.D. 102, Harris v. Knight [1890] 15 P.D. 170 and In re Francis v. Peverett [1902] P. 205. In the case before us, we have the affirmative testimony of one attesting witness that he was present, saw the execution and became an attesting witness. We have the testimony of another witness that, at the request of the mortgagor, he became an attesting witness. We have the further fact that, on the same day, when the document was later on presented for registration, this second witness identified the executant, who, in his presence, admitted execution before the registering officer. At that time the signatures of these witnesses appeared as those of attesting witnesses on the face of the document presented for registration. We may, in these circumstances, legitimately draw the inference that the requirements of the law were fulfilled. No doubt as pointed out in Strong v. Hadden [1915] P. 211, the question is one of inference from the surrounding circumstances, and cases are conceivable where the Court may decline to draw the inference by reason of proof of facts which show that the requirements of the law were not in the contemplation of the parties. In the present case, no such considerations arise and we hold that the document in suit is a duly attested and registered mortgage deed.

5. We may add that when the case was originally argued before us, advantage was taken by the appellant of the failure of the respondent to produce the mortgage bond to build the argument that the mortgage bond was never taken out of the registration office because the consideration was not in fact paid by the mortgagee to the mortgagor. At the request of the parties we called for a report from the registration office as to whether the document was still in the custody of the officer concerned. The Registrar stated that the document was taken out of the registration office on the 31st March, 1911; that is, four days after it had been executed and presented for registration. If the document was taken out by the mortgagor, it should in the normal course of events, be in the custody of the appellant. If, on the other hand, it was taken out by or on behalf of the mortgagee, we have to consider, whether the story of loss as narrated by Haran Chandra Chatterjee, is probable. Bhushan Chandra Das has stated that he actually took it out of the registration office on behalf of the mortgagee and made it over to Haran Chandra Chatterjee, who states how it was lost while in his possession. This story is corroborated by the affidavit made by Haran Chandra Chatterjee before the Magistrate of Howrah on the 10th April, 1911, when he notified the loss of the document. The failure of the plaintiff to produce the original mortgage bond does not consequently lend colour to the theory that the mortgagor did not deliver the document to the mortgagee because no consideration was paid for the transaction.

6. As regards the second objection, the defendant is in no better position. The document was executed by his father, and contains a recital that the consideration had been received by the executant. The burden lies upon the executant or his representative to prove that the recital was untrue and to satisfy the Court how he became a party to a document which contained an untrue recital of this description: Fulli Bibi v. Basirudi Midha [1869] 4 B.L.R. 54, Raja Sahib Prahlad v. Budho Singh [1869] 12 M.I.A. 286, Ali Khan v. Indar Parshad [1896] 23 Cal. 950, Brajeshware v. Budhanuddi [1880] 6 Cal. 268, Bisheswar v. Harbans [1907] 6 C.L.J. 659, Rohim v. Imam [1911] 17 C.L.J. 173. This burden has not been discharged. On the other hand, there is affirmative evidence on the part of the plaintiff to shew that consideration was in fact paid. We hold accordingly that the Subordinate Judge has correctly found that consideration passed as alleged and that the mortgage transaction was operative.

7. The result is that the decree of the Subordinate Judge is affirmed and this appeal is dismissed with costs.


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