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Ayenati Shikdar Vs. Mohammad Esmail and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1929Cal441,122Ind.Cas.554
AppellantAyenati Shikdar
RespondentMohammad Esmail and ors.
Cases ReferredNund Kishore Lal v. Kanee Ram Tewary
Excerpt:
- .....of fraud. in the circumstances the courts below were justified in finding that execution of the mortgage bond by defendant 1 was proved. there seems to be also no ground for withholding interest at the bond rate. the appeal is accordingly dismissed with costs.mitter, j.4. this is an appeal by defendant 2 and arises out of a suit brought by the plaintiff, now respondent, to enforce a mortgage bond which is said to have been executed by defendant 1 in the month of magh 1324 b.s. defendant 2 is a subsequent purchaser of the equity of redemption. defendants 1 and 3 put in separate written statements. their contention is that defendant 1 executed the bond knowing it to be a power of attorney and that she would not have executed the bond if she knew it to be a mortgage bond. they further.....
Judgment:

Jack, J.

1. The plaintiff in this suit seeks to recover from the defendants the amount due on a mortgage bond. In her written statement defendant 1 says that she executed the bond and admitted execution before the Sub-Registrar understanding it to be a power of attorney in the name of the plaintiff to manage her properties. She contends that the bond was not legally attested and executed. Defendant 2 was a benamidar of the plaintiff. Defendant 3 files a written statement supporting that of defendant 1 and adding that he had purchased the properties to the knowledge of the plaintiff. The Court of first instance decreed the suit except for a deduction of a portion of the claim for interest. The appellate Court dismissed the appeal and, allowing the cross appeal on account of interest, decreed the suit in full. In this appeal it is urged that inasmuch as one of the attesting witnesses to the bond when examined, proved hostile, the remaining attesting witness who is alive should have been examined to prove the bond, and, not having examined him, the Court was not entitled to invoke the provisions of Section 71, Evidence Act, and prove the bond by other evidence.

2. Both the Courts below have held that it is only necessary to call one attesting witness before having recourse to other evidence under Section 71 of the Act. This view appears to be in accordance with the wording of Sections 68 and 71 of the Act and was adopted in a recent decision of this Court : Hason Ali v. Gurudas Kapali : AIR1929Cal188 . It is true that good authorities have held that it is not clear whether, under Section 71, Evidence Act, other evidence can be given to prove the document where the attesting witness called denies, or does not recollect, the execution of the document and there is another attesting witness alive, subject to the process of the Court, and capable of giving evidence : of. Field, Edn. 6, p. 236. However, had the intention of the legislature been otherwise, one would have expected to find Section 71 of the Act differently worded as it cannot be supposed that when Section 68 and 71 of the Act were drafted cases in which one or more of the attesting witnesses would prove hostile were not anticipated. I therefore think that, in the present case, the Court was justified in taking other evidence as to the execution of the document. Of course Section 71 does not relieve the plaintiff from the necessity of producing the best evidence available. Here the remaining attesting witness was summoned, but did not appear, and the plaintiff has given reasons which the Court below has accepted for not taking further steps to produce him. Had he been the only witness it would undoubtedly have been the duty of the plaintiff to exhaust all the processes of the Court in order to produce him, but since an attesting witness had been produced, other evidence became admissible under Section 71, Evidence Act and the plaintiff was not bound to produce another attesting witness whom there were grounds for him to believe hostile.

3. There was some doubt whether it was necessary to decide as to the applicability of Section 71, Evidence Act, in this case inasmuch as there is some ground for holding that the written statements of defendant 1 and defendant 3 amount to an admission of execution of the bond by defendant 1, so as to make Section 70, Evidence Act, applicable and avoid the necessity of proving execution as against them. However, the admission was certainly not clear and unqualified. Defendant 1 says that she executed the bond and admitted execution before the Sub-Registrar, but did so understanding it to be a power of attorney in the name of the plaintiff to manage her properties, and that she would not have signed it had she been aware of its contents. This is, I think, not such an admission as to make Section 70, Evidence Act, applicable, though it is an important piece of evidence in proof of execution, there being no specific allegation of fraud. In the circumstances the Courts below were justified in finding that execution of the mortgage bond by defendant 1 was proved. There seems to be also no ground for withholding interest at the bond rate. The appeal is accordingly dismissed with costs.

Mitter, J.

4. This is an appeal by defendant 2 and arises out of a suit brought by the plaintiff, now respondent, to enforce a mortgage bond which is said to have been executed by defendant 1 in the month of Magh 1324 B.S. Defendant 2 is a subsequent purchaser of the equity of redemption. Defendants 1 and 3 put in separate written statements. Their contention is that defendant 1 executed the bond knowing it to be a power of attorney and that she would not have executed the bond if she knew it to be a mortgage bond. They further raised the defence that the mortgage bond was not attested in accordance with law.

5. The Munsif held that the mortgagee bond had been duly executed and attested and that consideration passed for the same and that defendant 1 executed the mortgage bond knowing it to be a mortgage Of the four attesting witnesses to the mortgage bond two were dead at the date of suit and the third attesting witness turned hostile and did not prove the execution or attestation and the fourth attesting witness Abdul Aziz was summoned by the plaintiff but as he told the plaintiff that he would not depose so, plaintiff took no further steps to examine him. The Munsif held in these circumstances that as the attesting witness who was examined did not prove attestation Section 71, Evidence Act, was attracted to the facts of the case and the execution of the mortgage could be proved by other evidence and the evidence of the other witnesses who were not the attesting witnesses was sufficient to prove execution. The Munsif granted the usual preliminary mortgage decree and directed that unless the decretal money was paid within a certain time the amount would be realized by the sale of the mortgaged property. The Munsif, however, held that the stipulation for compound interest was penal and allowed interest at 18 per cent, per annum up to the date of the decree. The defendant preferred an appeal to the Subordinate Judge and the plaintiff filed a cross-appeal on the question of interest with the result that plaintiff's suit has been decreed in full.

6. Against this decision an appeal has been taken to this Court by defendant 3. The appellant contends that Section 71, Evidence Act, does not apply .as the remaining attesting witness who is alive has not been examined. The respondent on the other hand contends that as one attesting witness was called for the purpose of proving the execution of the mortgage bond as required by Section 68, Evidence Act, and the said witness has denied the execution of the document Section 71 applies and in support of this contention the respondent relies on a decision of this Court in the case of Hasan Ali v. Gurudas Kapali : AIR1929Cal188 .

7. The case referred to undoubtedly supports the contention of the respondent, for, Mallik, J., with whom Cuming, J., concurred said this:

As observed before the plaintiff did actually call one of the attesting witnesses then alive and it was only when that attesting witness resoled, the plaintiff proceeded to prove the document by other evidence...This in my opinion, was a full compliance with the provisions of Sections 68 and 71, Evidence Act.

8. In the case cited there were other attesting witnesses alive.

9. It does not seem to me clear that Section 71 can be applied unless the evidence of the attesting witness who is alive and is subject to the process of the Court be taken when one attesting witness has, after being called, denied execution. Field, J., who is regarded as a high authority on the law of evidence states in his commentary on the law of evidence as follows:

If one of two or more attesting witnesses being called denied or does not recollect the execution of the document, it is not very clear whether other evidence can be given to prove it, if there be another attesting witness alive, subject to the process of the Court and capable of giving evidence, who is not produced.

10. Woodruff, J., another high authority on the law of evidence quotes this opinion of Field, J., without dissent in his well known commentary on the law of evidence. The rule of English law regarding attestation of wills is expressed in the ease of Coles v. Coles [1866] 1 P. 70, in the following words:

A party propounding a will is bound to call one at least of the attesting witnesses, if he can be produced, to prove the due execution and if such witness fails to prove the dua execution he is bound to call the other, although he may know him to be an adverse witness.

11. In the ease of Pilkington v. Gray [1899] A.C. 401, the Judicial Committee of the Privy Council held that where one of two attesting witnesses to a will retracted his evidence and in effect swore to the signatures of testator and the witnesses having been forged it was necessary to explain the absence of the other attesting witness before other evidence of the execution of the will could be let in. It is not sufficient to say that the other attesting witness will turn out hostile. In the case of Gobinda Chandra Pal v. Pulin Behary Benerji : AIR1927Cal102 , Mukerji, J., with whom Greaves, J., concurred, observed that the mere fact that the only surviving attesting witness is considered hostile by the party taking his stand on the mortgage does not relieve him from the duty of examining him as a witness. It seems to me that it was not intended by enacting Section 71 to depart from the rule of English Law that the evidence of the other witnesses should not be introduced unless the absence of the other attesting witness is satisfactorily explained in the case where one of the two attesting witnesses has been called and has denied execution. It is not necessary, however, to express a final opinion on the question as to whether the construction of Section 71 contended for by the appellant is the right one for the appeal can be decided on another ground.

12. It appears from the written statements that both defendants 1 and 3 admitted execution of the mortgage bond in the pleadings although they said that the execution was obtained by fraud i.e., by representing the same to be a power of attorney. In these circumstances Section 70, Evidence Act, is attracted to the facts of the present case and the admissions of defendants 1 and 3 are sufficient proof of the execution of the mortgage bond against them ; see Nund Kishore Lal v. Kanee Ram Tewary [1902] 29 Cal. 355.

13. The appeal, therefore, fails and must foe dismissed with costs. I agree with my learned brother in dismissing the appeal although my reasons for so doing are not the same as his.


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