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Bhikari Charan Das Vs. Sudhir Chandra Jana and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1938Cal702
AppellantBhikari Charan Das
RespondentSudhir Chandra Jana and ors.
Cases ReferredBanwari Prasad Singh v. Mt. Bigni Kuer
Excerpt:
- .....witnesses called by the plaintiff are attesting witnesses. they merely say that they signed the bond as witnesses. they did not say that they signed in the presence of the mortgagor or that the mortgagor signed in their presence or acknowledged his signature. it can-not therefore be said that the plaintiff has complied with the provisions of section 68, evidence act. the mere fact that the document was admitted in evidence without objection does not, in my opinion, absolve the plaintiff from establishing that there was a valid mortgage. it cannot be said that the defendants anywhere admitted that defendant 1 had executed a valid mortgage. on the contrary, there was a specific objection taken in the written statement wherein it was stated that the bond had not been duly executed and.....
Judgment:

Sen, J.

1. This appeal is by the plaintiff and it arises out of a suit upon a mortgage. The plaintiff's case is that defendant 1 executed a mortgage in His favour on 18th November 1921 for the sum of Rs. 600. Of the principal amount due Rs. 100 had been paid, the balance due for principal and interest is stated to be Rs. 1000. The plaintiff sued defendant 1 and certain other persons upon this mortgage. The other persons are the transferees of defendant 1. Defendants 2 to 9, 11, 12 and 15 contested the suit on the following grounds. Firstly they stated that defendant 1 was a minor at the time of the execution of the mortgage and that therefore the mortgage was void. Secondly, they asserted that no consideration was paid. Lastly they alleged that the mortgage bond was not duly executed and attested. The trial Court held that the mortgagor was a minor at the time of the mortgage bond and that no consideration had passed. On these grounds he dismissed the plaintiff's suit. As regards the third ground, he arrived at no decision but he disposed of it by saying that 'the question does not arise.' From this decision the plaintiff appealed and the lower Appellate Court has reversed the findings of the trial Court on the first two grounds. It has found that the mortgagor was not a minor at the time of the execution of the mortgage and that consideration had passed. It dismissed the suit however on the ground that there had not been a valid execution and attestation of the deed. 'Against this decision the plaintiff has appealed to this Court.

2. The main question for decision is whether the lower Appellate Court was right in its finding that there has been no valid execution and attestation. For this purpose the evidence has to be looked into; it is quite clear to me from the evidence that there is no proof of due attestation of this bond. Two witnesses have been examined on this point, namely Prasanna Kumar Jana and Radha Krishna Das. Prasanna Kumar Jana makes the following statement: 'Kunja signed his name. I was witness to this bond.' That is all what he says regarding the execution and attestation of the bond. Radha Krishna Das says: 'I am a witness to the bond.' In cross-examination he amplified the evidence by saying that he was present at the majlish when the deed was written. There is no other evidence to prove due execution and attestation and I need hardly say that this evidence is totally inadequate to prove attestation. Attestation has been defined in Section 3, T.P. Act. An attesting witness must either see the executant sign or he must receive from the executant an acknowledgment that the executant has signed the deed. Further the attesting witness must sign the deed in the presence of the executant. These 'requisites have not been established by any evidence. The learned Subordinate Judge appears to be perfectly correct in saying that due execution and attestation has not been proved.

3. The learned advocate for the appellant contends however that in the circumstances of this case, further proof was not necessary inasmuch as the mortgage bond was admitted in evidence without objection. In the list of exhibits there is a column to show whether an objection was taken to the admission of the document or not and in that column the words 'without objection' appear. The argument of the learned advocate for the appellant is that as the defendants did not object to the admissibility of this mortgage bond, the plaintiff was absolved from proving due execution and attestation. This, in substance, is his argument and he relies upon the cases in Ambar Ali v. Lutfe Ali (1918) 6 AIR Cal 971, Baijnath Singh v. Mt. Brijraj Kuer (1922) 9 AIR Pat 514 and Jabbar Ali Sardar v. Monmohan Pandey : AIR1929Cal110 . In my opinion the contention of the learned advocate for the appellant cannot be supported and the cases relied upon do not really support the point which he seeks to make out. Under the law, a bond is not a mortgage bond unless it is attested by two witnesses. Whether the defendant objects or not, the plaintiff in order to succeed in his suit upon the mortgage must establish that there was a mortgage bond. This he can do by producing the bond in Court and by proving it according to law. Section 68, Evidence Act, lays down that when a document is required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive and subject to the process of the Court. In the present case it is not established that the two witnesses called by the plaintiff are attesting witnesses. They merely say that they signed the bond as witnesses. They did not say that they signed in the presence of the mortgagor or that the mortgagor signed in their presence or acknowledged his signature. It can-not therefore be said that the plaintiff has complied with the provisions of Section 68, Evidence Act. The mere fact that the document was admitted in evidence without objection does not, in my opinion, absolve the plaintiff from establishing that there was a valid mortgage. It cannot be said that the defendants anywhere admitted that defendant 1 had executed a valid mortgage. On the contrary, there was a specific objection taken in the written statement wherein it was stated that the bond had not been duly executed and attested. This defence was persisted in at the time of the trial and a specific issue was raised regarding this defence and this issue was No. 4. Even at the time when the alleged attesting witnesses were examined, the defendants persisted in their defence that there was no proper attestation. The cross-examination of P. W. 3 indicates it. It cannot therefore be said that the defendants at any time admitted that the bond had been duly attested and executed. They might have not objected to the document going in, but this cannot, in my opinion, absolve the plaintiff from establishing that the mortgage bond had been duly executed and attested.

4. In this connexion I would refer to the case in Baijnath Singh v. Mt. Brijraj Kuer (1922) 9 AIR Pat 514 Learned advocate for the appellant relied upon certain statements in the judgment but if the entire judgment be read, it will be found that the case is really against the appellant's contentions. I would refer specially to the observations of their Lordships at p. 62 which entirely support the view I have-taken. In this connexion I was referred to the case in Banwari Prasad Singh v. Mt. Bigni Kuer (1927)14 AIR Pat 131 This is a decision also of the Patna High Court and it is on all fours with the present case. Their Lordships remark in that case that:

Section 59, T.P. Act, provides that a mortgage can be made only by a registered instrument signed by the mortgagor and attested at least by two witnesses when it secures a sum of more than Rs. 100.

5. Then they go on to say that this is a rule of law and not a rule of evidence; and that a bond is not a mortgage unless it is thus attested. Their Lordships then decided that whether the defendants object or not, the document, if it is not proved to be attested by two witnesses, cannot operate as a mortgage. In my opinion, the learned Subordinate Judge was quite justified in holding that the plaintiff had not proved that the mortgage was duly executed and attested. Having come to that decision there was no other course open to him but to dismiss the plaintiff's suit. I entirely agree with this point of view and that being-so, it is not necessary for me to consider the other question, namely whether the mortgagor was a minor or major at the time of the execution of the mortgage deed or whether any consideration passed. I uphold the decision of the learned Subordinate Judge and dismiss this appeal with costs. Leave to appeal under the Letters Patent is refused.


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