1. This is an appeal on behalf of the plaintiffs and is directed against the decision of My Lord the Chief Justice.
2. The Plaintiffs filed a suit out of which the present appeal arises to enforce a mortgage alleged to have been executed by the defendant in favour of Jagannath, father of plaintiffs 1 and 2 and father-in-law of plaintiff No. 3. The mortgage is said to have been executed on September 23, 1926 for Rs. 200 /-, a part of the consideration having been paid in advance on an earlier date.
3. The defendant in his written statement admitted having executed the document but he denied due and proper attestation. A further point was taken that the claim was in any view barred by limitation as an alleged endorsement appearing on the back of the bond was not in the handwriting of the defendant. If this endorsement could be avoided the claim was 'prima facie' barred. Other defences need not be referred to as the point raised in this appeal is a limited one.
4. The trial court found that though the bond had been duly executed attestation had not been proved. The endorsement on the back of the bond also was found not to be genuine. The suit was accordingly dismissed.
5. The learned Subordinate Judge decreed the plaintiffs' suit holding that the endorsement on the back of the bond was a genuine one and that the bond had been duly executed and attested.
6. The defendant preferred on appeal to this Court and the following issue was sent down to the lower appellate Court for recording a finding after eliminating from the Court's consideration the evidence of P. W. 2.
7. The learned Subordinate Judge again came to the conclusion that the endorsement on the back of the bond was a genuine one and the suit was not barred by time.
8. After the finding had been so recorded by the learned Subordinate Judge the second appeal was taken up for final hearing.
9. The only point left for consideration was whether or not the document alleged to be the mortgage bond (Ex. I) had been duly proved to be a mortgage. The defendant had in the Written Statement admitted his signature on the said bond but it was contended that it was not duly attested.
10. One of the issues raised in the trial court was 'Is the bond in suit duly executed and attested?'
11. This document was produced in Court by Asutosh Barui, P. W. I. The relevant portion of the deposition as recorded by the Court was as follows:
'My father advanced Rs. 200/- as loan to the defendant and the defendant executed the mortgage Deed. It is not a fact that only Rs. 150/- was taken as loan. The deed is marked Ex. 1 on admission.'
12. In course of cross-examination this witness admitted that the deed had been executed in the Registration Office but as he was not present at the time of execution he did not know who had executed it. None of the three persons who appended their signatures to the document as witnesses were called. It was contended on behalf of the plaintiff that the mortgagor having admitted the document as a mortgage, proof of attestation was unnecessary. Further, the deed having been marked as Ex. 1 'on admission' recorded by the Munsif noted above, it was not necessary for the plaintiff to prove due attestation by adducing independent evidence; it must be taken that the defendant had admitted the bond to be a valid mortgage bond duly executed and attested.
13. It has been pointed out that though the defendant had admitted execution of the bond he had definitely contested due attestation. An issue accordingly was specifically raised. In view of the clear averment made in the written statement questioning due attestation, it cannot be contended that the mortgagor having admitted the document as having been executed by him proof of attestation became unnecessary. The issue raised has to be decided on the evidence in the case.
14. It is therefore, for consideration whether, the deed being marked as an exhibit by the Court 'on admission' by the defendant, it is now open to the defendant to contest that the said bond was not duly attested. Or, in other words, are the plaintiffs absolved from the necessity to prove due attestation?
15. Does not mere admission of execution of a mortgage bond render proof of attestation unnecessary In 'Arjun Chandra v. Kailash Chandra', 36 Cal L Jour 373 it had been pointed out that when the admission of signature by the defendant on a bond is coupled with an express denial that the document was signed in the presence of the attesting witnesses it is incumbent on the plaintiff mortgagee to call at least one attesting witness to prove the attestation Under such circumstances the mortgagee is not entitled to the benefit of Section 70 of the Indian Evidence Act. The word 'execution' as used in Section 70 of the Evidence Act is in the sense of due execution or execution in the way in which a particular document is required to be executed. The admission as contemplated in this section must be shown to be an admission of due execution by a party to a document which is on the face of it is an attested document. The same view was expressed in 'Benoy Bhusan Roy v. Dhirendra Nath Dey', 38 Cal L Jour 114.
16. As was pointed out by Mitter J. in 'Harinath Ghose v. Nepal Chandra', 41 Cal W N 306 the word 'execution' in the proviso to Section 68 of the Evidence Act not only means signing by the executant but means and includes all the series of acts which would give validity of the document concerned. In the case of a mortgage bond the attestation of the signature of the executant by witnesses as required by Section 59 of the Transfer of Property Act is essential. The admission therefore of the mere signature by the executant is not tantamount to admission of the entire series of acts as would give validity to the document itself. See also 'Ebrahim Mandal v. Akshaya Konar', 40 Cal W N 151. This view receives some support from the decision of the Judicial Committee in 'Hira Bibi v. Ramhari Lal', 52 Ind App 362. It must, therefore, be held that the admission by the executant of the mortgage bond that it has been signed by him cannot' dispense with the proof of attestation.
17. Admission of the mortgage bond in evidence without objection by the defendant noted in the proceedings as an admission does not also absolve the plaintiff from proving due attestation. 'Bhikari Charan v. Sudhir Chandra', 42 Cal W N 1055. A document is not legally enforceable as a mortgage bond unless it is duly executed and attested as under Section 59 of the T. P. Act. Irrespective of the fact whether the defendant objects or not the plaintiff in order to succeed must establish that there was a mortgage bond. This can be done by the bond being produced in Court and being proved according to law. As was pointed out in 'Bhikari Charan v. Sudhir Chandra', (Supra) that even if a document was admitted in evidence without objection the absence of relevant evidence to prove due attestation would disentitle the plaintiff from getting a decree on the basis that the bond was a mortgage bond.
18. In view of the specific defence in the present case denying due attestation and the issue] raised thereon, marking the document as an exhibit without objection, cannot absolve the plaintiff from proving due attestation. It is conceded that there is no evidence in the case proving due attestation. A prayer was made on behalf of the plaintiffs that they might be given an opportunity of proving due attestation. It is stated to us that at no stage during the trial was anyone of the attesting witnesses even cited as witnesses or summons taken out. In this state of the record we do not think that an opportunity should be given to the plaintiffs to adduce fresh evidence at this late stage.
19. The result therefore is that this appeal is dismissed with costs.
20. I agree.