Banwari Prasad Singh and Others vs Mt. Bigni Kuer

Ross, J.—This is an appeal by the defendants against a decree in a suit on a mortgage. Three points have been urged in support of the appeal: first, that the bond has not been proved as a mortgage; secondly, that the plaintiff had to prove that the loan was taken for the benefit of the family, but the onus was wrongly thrown on the defendants; and thirdly, that the finding that the defendants had paid only Rs. 1,525 as admitted by the plaintiffs and not Rs. 2,675 as alleged by them, was not a proper finding binding upon this Court.

With regard to the last two points I am of opinion that although the judgment is not altogether satisfactory these are findings of fact with which we cannot interfere. On the question of benefit to the family, it is true that some parts of the judgment suggest that the burden was thrown upon the defence, but reading the judgment as a whole I think that the learned District Judge fairly required proof from the plaintiff and was satisfied that the proof was given. With regard to the plea of payment it is urged that the learned district Judge has not given sufficient weight to the fact that the plaintiff''s sons did not appear to deny their signatures on the receipts and that he should not have been content with the evidence of a distant kinsman. But these are matters for the Court of fact and this point is not open in second appeal.

But the first contention must prevail. In their written statement the defendants denied that the bond had been executed in conformity with the requirements of Section 59 of the Transfer of Property Act. It is to be noticed that the defendants are the sons and grandsons of the mortgagor who is dead. The learned Subordinate Judge dealing with this part of the defence said that at the trial the document was allowed to go in on admission and that the objection that it was not legally executed therefore became infructuous. It is not suggested that there is any proper proof of the execution and attestation of the mortgage bond. Now Section 59 of the Transfer of Property Act provides that a mortgage can be made only by a registered instrument signed by the mortgagor and attested by at least two witnesses, when it secures a sum of more than Rs. 100. This is a rule of law and not a rule of evidence; and a bond is not a mortgage unless it is thus attested.

Sections 68 to 71 of the Evidence Act contain the provisions for the proof of execution. Ordinarily, at least one attesting witness must be examined, but the cases where such evidence cannot be given are also provided for. Section 70 makes a special provision that.

the admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.

This section relates to the admission of the party in the course of the proceedings in which the document is produced made either in the pleadings or in the evidence. Now in this case there is no admission such as is required by Section 70 because the executant of the document is dead nor is there any admission by the defendants themselves of the attestation of the document. On the contrary it is pleaded in para. 7 of the written statement that the bond was not executed in conformity with Section 59 of the Transfer of Property Act. Apparently the document was allowed to go in at the trial without objection. But that cannot take the place of proof of execution and attestation which would establish this bond as a mortgage. On this ground the suit must fail.

It is urged on behalf of the plaintiff that the suit should be remanded in order that the plaintiff may have an opportunity of proving the mortgage bond according to law. In my opinion no further opportunity can be given. The plaintiff had the opportunity to prove the mortgage at the trial and did not take advantage of it and there can be no guarantee that evidence offered after remand would be of any value. In my opinion, therefore, the suit must fail on this ground that the bond has not been proved as a mortgage. As the time is long past when a personal decree could be given, the suit must be dismissed altogether.

The appeal is decreed with costs and the suit is dismissed with cost throughout.

Das, J.

I agree.