Mt. Manki Kaur vs Hansraj Singh and Others

Wort, J.—This appeal is by the defendant and arises out of an action on a mortgage. The first question that came up for determination by the Judges in the Courts below was whether the mortgage bond had been proved in the sense that witnesses who could prove the execution and purported to be attesting witnesses had been called and that the plaintiffs in this regard had satisfied Sections 68 to 71, Evidence Act. The position was this. There were four attesting witnesses. One of them was dead at the time, two others were called, but the absence from Court of the fourth was unexplained.

According to the decision of the Judges in the Courts below and to use the language of the Appellate Court:

There can be no doubt that both the witnesses examined did really attest the bond in suit and in denying its execution by the Musammat they were both giving deliberate lies.

That is the position, and according to what I have just read, the learned Judge in the Court below has come to the conclusion that the plaintiffs were entitled to prove execution by a witness other than the attesting witness u/s 71, Evidence Act. It is the contention of Mr. Rai appearing on behalf of the appellant that the plaintiffs were not so entitled; that it was necessary to call the fourth witness to whom I have referred: in other words all the attesting witnesses who were alive had to be called before the plaintiffs could take advantage of Section 71. Section 68, Evidence Act provides:

If a document is required to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.

Section 69 provides that the signature of the attesting witness can be proved aliunde if no such attesting witness can be found or if the document was executed in the United Kingdom. This matter does not come within Section 69. But, as I have said, the argument is that Section 71, which provides:

If the attesting witness denies or does not recollect the execution of the document, its execution can be proved by other evidence,

(that is to say, by witnesses other than the attesting witnesses), cannot be taken advantage of in this case. There is no doubt that if the section to which I have referred purports to state what the English law with regard to the matter is, the contention put forward by the appellant is correct.

In this connexion the decision of their Lordships of the Judicial Committee of the Privy Council in Pilkington v. Gray (1899) A.C. 401, has been relied upon. That was a case from Bermuda where, as far as I understand the matter, the English law prevails on this point, and there the decision of their Lordships of the Judicial Committee of the Privy Council was in conformity with the contention put forward by the appellant in this case.

Unfortunately the Legislature attempted to codify the law, and in its codification, difficulties have arisen. The question which we have to ask ourselves is, what is the meaning of the expression in Section 71, "If the attesting witness denies or does not recollect the execution "?

Does it mean that a witness was called or available whose absence was not otherwise excused under Sections 68 and 69, Evidence Act, or does it mean one witness of whom Section 68 speaks? Speaking for myself I would very much rather decide this question after a much more careful consideration than is possible in the circumstances of this case. But I do most certainly hold the view that whatever the English law may be, Sections 68 to 71, Evidence Act, do not necessarily state it, and the matter is governed by the expression found in Section 68, which is as follows: "until one attesting witness at least has been called for the, purpose of proving its execution." If, the words had been "at least one attesting witness is called to prove and has proved execution", the matter would have been different and

I do not think in that case that there could be any doubt that the argument advanced by the appellant would be a correct one. But in my view the words I have read indicate that it is incumbent upon the plaintiff to call at least one witness, and if that witness denies or does not recollect the execution of the document, then the execution may be proved aliunde.

There are a number of authorities on some of those sections in this Court, one of which is Vol. 7 of the Patna series being the case in Mt. Shahzadi Begum Vs. Muhammad Qasim and Others, but there the question which arose was whether the circumstances provided for by Section 69 were present, and the consideration of the terms of Section 71 did not arise.

The same may be said about the decision in Tula Singh v. Gopal SinghA.I.R. 1916 Pat. 102. The point we now have before us may well have arisen in the case to which I now refer, but there it would appear that the party relying upon a document never attempted to prove the execution of the document other than by attesting witnesses, the circumstances being that the witness called turned out to be hostile and Rao J. delivering the judgment of the Court made this observation:

We direct that the evidence be taken of one attesting witness. If he denies that he was an attesting witness, he may be declared hostile and cross-examined, and on the result of his evidence added to the evidence already on the record, the lower Court will find as a fact, whether or not the document was attested according to law. Section 68, Evidence Act is imperative.

But he does not go on to deal with the question of Section 71. Although it is with some hesitation that I come to the view that I have just expressed, I am of opinion that the learned Judge in the Court below was right on this question.

The next point argued is that, as the widow who executed this document only had a life interest under the will, she had no power to alienate the property. It is stated in this connexion that the daughter had an absolute estate and had taken out letters of administration and that her powers of alienation in this particular case are governed by the Succession Act inasmuch as it provides for the powers of an administrator. The argument put in another way is this that a widow with a life estate had no power of alienation, but a daughter had such power as given her by the Succession Act.

In my judgment that argument is fallacious, Section 307, onwards of the Succession Act, make provisions for the powers of an administrator and deal with powers of the administrator as such and in no way govern the powers of persons with life or absolute estates. The daughter as an administrator would be limited to the powers granted to her under the Succession Act, but her powers as having an absolute estate would be different. The same may be said of the widow.

Now, in this connexion I would refer to a decision of their Lordships of the Judicial Committee of the Privy Council in Moulvie Mohammad Shumsool Huda v. Shewkram (1874) 2 I.A. 7. There a Hindu had by a testamentary document granted a life estate to the widow of his son and thereafter that the property was to go to the two daughters of the said widow. The widow with the life interest purported to alienate the property and the appeal before their Lordships of the Privy Council arose out of an action in which it was sought to set aside that alienation. Now, if the contention put forward by the appellant in this case is true, their Lordships of the Judicial Committee could have disposed of the matter on the footing that the widow with a life interest or a Hindu widow with a life interest had no power whatever to alienate. But their Lordships of the Judicial Committee make this observation in dealing with certain argument which had been put forward:

They apprehend the law to be this: that Ranee Dhan Kowur, who may be considered as very much in the position of a Hindu widow, might have sold the estate absolutely if it could have beer, shown (and the burden of showing this is upon the purchaser) that to convey such an absolute estate was necessary in order to pay the debts of the testator and was for the benefit of his estate generally. In their Lordships'' opinion there is no such proof whatever in this case.

To repeat, had the point put forward by the appellant in this case been one that could be sustained, the appeal before their Lordships of the Privy Council could have been disposed of on that footing. But they went on to discuss, we have seen, the question whether legal necessity had been proved. The only other point in the case is whether legal necessity has been established in this case. Primarily it was a question of fact and the learned Judges in the Courts below came to a conclusion in favour of the plaintiffs on the point. It is contended that evidence, which is inadmissible has been relied upon, for instance, the deposition of the widow herself in the probate case to the effect that she spent Rs. 400 on the sradh ceremony of her deceased husband. I agree with the argument of Mr. Rai in this connexion that the deposition is not admissible in evidence against the defendant, but it is not upon that evidence alone that the learned Judge in the Court below relies. He has come to the conclusion that at least Rs. 300 out of the Rs. 400 of the consideration was for legal necessity and presumes that the balance was expended by the Musammat on household expenses. The question as to whether legal necessity has been proved or not is, as we know, not a question of arithmetic. The point to be established was whether there was necessity for the alienation on the ground of legal necessity and for this purpose the evidence of one of the witnesses has been read. From that it will be seen that the plaintiffs made inquiries as to the expenditure of the greater part of the sum of money secured for the sradh ceremony of her (the defendant''s) husband. It is true that the Judge in the Court below has not relied upon any evidence of inquiry but has come to the conclusion agreeing with the trial Judge that a substantial portion of the consideration was expended for a purpose which would be a justifying legal necessity.

In my judgment there are no grounds upon which we could disturb the findings of the Judges in the Courts below on this point.

The points having been decided against the appellant, the appeal fails and must be dismissed with costs.

Varma, J.

I agree. The first point that was urged by Mr. Shivanandan Rai deserves some consideration in the sense that we have come across instances in which his contention has been apparently accepted. His contention amounts to this that it should be held that the mortgage bond was not proved inasmuch as all the available attesting witnesses were not called to prove the document. It appears that there were four attesting witnesses, Kirit Singh, Rajnandan Prasad Singh, Ramnarayan and Rachhya Singh. It appears that Rachhya Singh is dead. The names of the two attesting witnesses who were called are Kirit Singh and Rajnandan Prasad Singh. Ramnarayan was not called. According to the Courts below, the evidence of these two witnesses has been held to amount to a denial of the execution. The fourth witness according to Pandit Shivanandan Rai has not been called at all and therefore he contends that, as the two attesting witnesses called did not prove the document, the document should not have been admitted unless the fourth witness also was summoned and deposed about the execution of the document.

Now, looking at Section 68, Evidence Act, I have no doubt in my mind that that section points out the way in which a document, which is required by law to be attested, should be proved. It provides that at least one of the attesting witnesses, if alive and subject to the process of the Court and capable of giving evidence, should be called for the purpose of proving the execution of the document. From this it is clear that it is not necessary that for the purpose of proving a document all the attesting witnesses should be examined: even one could come and prove it if he was capable of doing so.

Then there is another set of circumstances in which no witnesses are available or witnesses are in the United Kingdom. Section 69, Evidence Act refers to those circumstances and provides that in such a case the handwriting of the attesting witnesses may be proved by other witnesses. But when a witness has been called and is not in a position to prove the document or rather, to quote the words of the section, "he denies or does not recollect the execution of the document," then in that case the execution may be proved by other evidence u/s 71, Evidence Act. In dealing with this matter we have clearly to distinguish between two different sets of circumstances one in which no witness has been called, and the other in which one witness at least has been called.

Now, the authorities relied upon by Pandit Shivanandan Rai clearly show that most of them were dealing with circumstances in which no attesting witness was called even if one was available. In the case reported in Mt. Shahzadi Begum Vs. Muhammad Qasim and Others, the facts were that of the three attesting witnesses, whom I should call A, B and G for the purpose of brevity, A was dead, G was found to be not ;an attesting witness, but B who was an attesting witness and who could be called was not called. Therefore on the facts of 4hat case no attesting witness was called to prove the document and their Lordships held that the circumstances did not come within the provision of Section 69, Evidence Act.

Reference has next been made to the case reported in Tula Singh v. Gopal Singh AIR 1916 Pat. 10 which to certain extent supports the view that I have been expressing. There the question was whether it was incumbent upon a party who wanted to prove a document to call an attesting witness who was likely to prove hostile. Upon this the observation of their Lordships was:

So long as there is a witness alive and subject to the process of the Court, no document which is required by law to be attested shall be used in evidence until one such witness has been called. The fact that, when called, he will prove hostile does not excuse the plaintiff of this duty.

No case under the Evidence Act has been shown to me where it has been held that the list of attesting witnesses should be exhausted even when an attesting witness has been called for the purpose of proving a document.

I am therefore of opinion that in this case the plaintiffs were entitled to prove the document by evidence other than the evidence of the attesting witnesses who did not prove the document. On the other point it is clear that legal necessity for the loan has been found by the lower Appellate Court, although there is one piece of evidence which is not admissible and that is Ex. 3-A, the evidence of the Mussammat who was the executor of the document. But there is enough evidence on the record to support the finding of the lower Appellate Court. So far as the question of interest is concerned, that also was a matter for the lower Appellate Court and its finding does not call for any interference by us, the interest being Re. 1-8-0 per cent, per mensem simple.

I would therefore dismiss the appeal with costs.