1. The plaintiffs sued the defendants on an alleged mortgage; The suit was contested on the ground that the mortgage-bond was not duly attested and that no consideration passed and that it was merely a benami transaction. The first Court held in favour of the plaintiffs' on the question, of attestation -but dis missed the suit on the ground that the mortgage was a benami transaction. The lower Appellate Court has held that the bond was not properly attested but has disbelieved the defendants' case that the;: transaction was benami and has held that the consideration money: was paid; He; has granted the plaintiffs a decree with a direction that if the defendants do not deposit the decretal dues within three months they will be absolutely debarred from all rights to redeem the property.
2. It is contended on behalf of the appellants that after finding that, the bond was not properly attested the lower Appellate Court should not have held that there was a valid mortgage. This decision is based on the finding that the loan was for less than Rs. 100 and that the plaintiffs got possession of the property, so a document was unnecessary. In our opinion on the finding that the bond was not--legally attested the lower Appellate Court was wrong in holding that the mortgage had been proved. It is pointed out by the Judicial Committee of the Privy Council in Subramonian v. Lutehman 71 Ind. 650 : 50 I.A. 77 : A.I.R. 1923 P.C. 50: 44 M.L.J. 602 : 32 M.L.T. 181 : 25 Bom. L. R. 582 : I R. 66 : 2 Bur. L.J. 25 : 38 C.L.J. 41 : 18 L. W. 446 : (1923) M.W.N. 762 : 28 C.W.N. 1: 50 C. 338 (P.C) that oral proof cannot be substituted for the written evidence of any contract which the parties have put into writing. There is a further difficulty in the plaintiffs' way. Assuming that the mortgage could be effected by delivery of possession and that this could be proved although the bond has been executed, there is no finding that possession was delivered in order to effect a mortgage. Though the plaintiffs had got possession of the property it is the defendants' case that this possession was obtained by them as adhiars. The first Court accepted the contention of the defendants that the plaintiffs' possession was that of adhiars and that finding had not been reversed by the lower Appellate Court. If the plaintiffs were put in possession as adhiars the finding of the lower Appellate Court would not be sufficient to establish a mortgage by delivery of possession on payment of the money advanced.
3. On behalf of the respondents it is contended that the finding of the lower Appellate Court that the document was not attested is wrong. Reliance is placed on the decision of a Divisional Bench of this Court to which one of us was a party in Jagannath Khan v. Bajrang Das Agarwala 62 Ind. Cas. 97 : 48 C. 61. What was held in that case was that the writer of a mortgage-bond may be a competent witness to prove its execution. It was certainly not held that a witness who signs the bond before the mortgagor is a witness who has attested the bond as required by Section 59 of; the Transfer of Property Act. Though the bond cannot be' proved as a mortgage-bond it is no bar to its being admitted in evidence if it is regarded as a simple bond for payment of money. In the case of Tofaluddi Peada v. Mahar All Shaha 26 C. 78 : 13 Ind. Dec. (N.S.) 654 it was held that when a suit is brought upon a mortgage-bond although the mortgage is held to be invalid on the ground that the requirements of Section 59 of the Transfer of Property Act were not satisfied the plaintiff is entitled to recover upon the covenant, the money which the defendant covenanted to pay. In this case; therefore, the bond though not admissible to prove a mortgage is admissible to prove a covenant to re-pay money, and on this covenant the plaintiffs are entitled to a decree for the amount that has been decreed by the lower Appellate Court.
4. The appeal is accordingly allowed to this extent:--The decree of the lower Appellate Court will be modified by striking out the last sentence, ' defendant do deposit the decretal dues within three months, on default defendants be absolutely debarred from all right to redeem the property.'
5. As the appeal has been only partially successful the parties will bear their own costs in this Court except as regards the minor respondents whose costs have already been paid.