1. In this case the suit was brought by the plaintiffs to recover a sum of money said to be due on a mortgage bond dated 3rd Pous 1322 B.S. alleged to have been executed by defendant 1. The bond was said to be given as security for repayment of the sum of Rs. 498 and there was an agreement to repay that loan in six yearly instalments of Rs. 83 in Falgoon every year from 1323 to 1328 and in default of payment of any one instalment interest was to run on the entire amount at half an anna per rupee per month. The plaintiffs' case was that the defendants had paid nothing at all on the bond. Defendants 2 and 3 are said to be subsequent transferees and the remaining defendants were brought into the suit as having an interest in a prior mortgage. The suit was contested by defendants 1 and 3 and the defences which they raised were to the effect that the bond had not been duly executed and attested and alternatively that defendant 1, that is to say the mortgagor, was not of sound mind at the time ha executed the bond; further that the plaintiffs had taken advantage of defendant's mental condition and had improperly obtained execution of the bond. There was a further defence set up by defendant 3 to the effect that he had purchased the property and to redeem the prior mortgage he deposited the money due under it, but that the plaintiffs had not taken that money and so he had been obliged to bring a redemption suit against them and that the present suit was brought out of malice and without any cause of action.
2. The main points discussed in the case were three: (1) Was the bond duly executed and attested? (2) Was there any consideration given for the execution of the bond? (3) What was the mental condition of defendant 1 and was execution obtained by undue influence? The learned Subordinate Judge who tried the case found all these issues in favour of the defendants and accordingly he dismissed the suit. These findings were reversed on appeal by the learned Additional District Judge and he made a decree in favour of the plaintiffs. He also took upon himself to go into the question whether the rate of the interest charged in the bond was reasonable or not arid he took the view that it was excessive and ho assessed what he considered to be the proper rate of interest at Rs. 1-9-0 per cent per month. The only question which has been argued before us is whether or not the mortgage bond was properly attested. With regard to this the learned Subordinate Judge said that as regards attestation he thought that the plaintiffs had not succeeded in proving that the document was properly attested. He said:
They have examined the scribe Brojomohan Bhandari who spoke everything except his attestation of the bond.
3. A perusal of his evidence had led him (the Subordinate Judge) to conclude that he wrote the bond and signed his name as the scribe but he did not appear to have seen the execution of the bond nor the attestation thereof by the other two witnesses. One of the alleged attesting witnesses Bhabendranath Teli was called and he said that he merely put his signature on the bond at the behest of the plaintiffs when neither defendant 1 nor any other attesting witness, not even the scribe, was present. Accordingly the learned Subordinate Judge said that Bhabendranath Teli could not be said to be an attesting witness. The other attesting witness Rati Kant Sarkar was not called. It has been said before us that the reason why he was not called was that he was ill at the time. It was obvious that if we take the view taken by the learned Subordinate Judge it would be right to come to the conclusion that this document was not properly attested. As against that the learned Additional District Judge thought that us the bond was admittedly registered and defendant 1, that is the mortgagor, had admitted execution of the bond before the Sub-Registrar, that was in itself sufficient to constitute the Sub-Registrar as an attesting witness and that the Court ought to take judicial notice of the attestation. With regard to the other alleged witness, the learned Additional District Judge said that as regards attestation the learned Subordinate Judge found that the bond was not properly attested because of the two attesting witnesses one Ratikanta Sarkar was not examined and the other Bhabendranath Teli stated that he merely put his signature on the bond at the behest of the plaintiff when the defendant was not there. The learned Additional District Judge then went on as follows:
Further the scribe read out the bond and then read it over to the defendant; then the defendant signed it; and then the scribe signed it. This is dearly sufficient attestation within the meaning of Act 26 of 1926 read with Act 27 of 1927.
4. All this amounts to this that the lower appellate Court came to the conclusion that it ought to be held that the two attesting witnesses required by law were provided in the persons of the Sub-Registrar and the scribe. We have had frequently to consider a point similar to that which we have now to decide and in particular to deal with the position of the Sub-Registrar in circumstances such as the present case. With regard to this we have only to say that we accept and respectfully endorse what has been said by the learned Chief Justice in the case of Abinash Chandra v. Dasarathi Nalo : AIR1929Cal123 the learned Chief Justice referred to the case which has been relied upon on behalf of the appellant before us, namely, the case of Badkamohan Dutt v, Nripendra Nath Nundy : AIR1928Cal154 and commenting on that case the learned Chief Justice said:
In that case, as in the present, the mortgagor at the time of registration admitted the execution of the mortgage deed and the Sub-Registrar by his [signature and seal acknowledged or asserted on the document that execution had been admitted by the mortgagor. Accordingly in the case to which I am now referring it was held that the Court would take judicial notice of that signature and seal and that the Sub-Registrar was a good attesting witness as required by law.
5. The learned Chief Justice then continued as follows:
It appears to me that the learned Judges in that case may not have paid sufficient attention to the circumstances that by Act 27 of 1926 and indeed apart from that Act it is necessary that each of the witnesses should have signed the instrument in the presence of the executant. It does not appear that there was any evidence before the learned Judges that the Sub-Registrar had affixed his signature or seal in the presence of the mortgagor. But in the case before us now it is quite clear that there is no such evidence at all.
6. The learned advocate who has appeared for the appellant before us in the present case has said that the same observations may be properly made with regard to the case which we are now dealing. No doubt it is admitted by the learned advocate for the respondent that it is in fact the casa that there is no evidence that the Sub-Registrar did in fact sign the document in the presence of the executant. It is clear from the judgment of the learned Chief Justice, which I have just quoted that he and Mukherjee, J., were of opinion that the case in Radhamohan Datt v. Nripendra Nath Nundy A.I.R. 1929 Cal. 154 ought not to be followed in matters of this kind. In our opinion, it is obvious that if the Sub-Registrar has to be brought into the matter as constituting an attesting witness it must be affirmatively and definitely proved that he had affixed his signature in the presence of the executant. In that view of the case we are bound to reject the conclusion arrived at by the learned Additional District Judge that the Sub-Registrar might be taken as one of the two necessary attesting witnesses.
7. We have now to consider whether on this aspect of the case it can still be said that the document was properly executed. Section 68, Evidence Act, provides that if a document is required by law to be attested, it shall not be used in evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness living and subject to the process of the Court and capable of giving evidence. By Act 31 of 1926 a proviso was added to that section whereby it was enacted that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provision of the Registration Act of 1908, unless its execution by the person by whom it purports to have been executed is 'specifically denied.' In the present case the common ground is, at any rate, it is not disputed, that the mortgage bond in question was in fact registered in accordance with the provision of the Registration Act of 1908. That being the case, it would not be necessary for the plaintiff to call one of the attesting witnesses unless its execution by defendant 1 is 'specifically denied,' It was argued by the learned advocate who appears for the plaintiff-respondent before us that there was no specific denial of the execution of this particular mortgage bond. That is a proposition which we are unable to accept because it seems clear from the pleadings, whatever may have been the precise language employed, that the defence put forward was in Substance that the defendant denied that the mortgage bond was duly executed and attested; and there was an alternative defence that even if it were executed it wa3 executed by defendant 1 either when he himself was not of sound mind or when he was improperly influenced by the plaintiff. It cannot, be argued therefore that there was anything in the nature of an implied admission of the de facto execution of the document merely because defendant 1 choose to add the word 'duly' in front of the word 'executed' or that he has not denied its execution 'specifically.'
8. Taking the view that there was a denial of attestation it follows that it was necessary for the plaintiff to call, to prove the document, at least one person who might properly be described as an attesting witness. Upon an examination of the evidence given by the person who has been referred to as the scribe we find that he said that defendant 1 signed first and then he put his signature and then the other attesting witnesses. In this case therefore we are disposed to take the view that this man. was not only functioning as the writer of the document but that he tin fact put his signature to it in order to bear testimony to the fact that it had been executed by defendant 1. Therefore he may properly be described as an attesting witness. We think that in this case this particular scribe was just as much an attesting witness as the other; persons who are said to have put their signatures on the document. It follows that the plaintiff has sufficiently complied with the requirements of Section 68, Evidence Act, as amended by Section 2 Act 31 of 1926. And therefore even if we reject the Sub-Registrar's signature put upon the document there is sufficient testimony that this document was properly executed and attested. We accordingly dismiss this appeal with costs. The cross-objection is not pressed and is therefore dismissed.
9. I agree.