Periakaruppa Moopan vs Adaikkala Mooppan and Another

Krishnaswami Nayudu, J.—This second appeal arises out of a suit for redemption by the plaintiff who claims to have executed a usufructuary mortgage in favour of the father of defendants 1 and 2, Adaikkala Mooppan, for Rs. 31 on 18th September 1930 under Ex. A. 1 which is a registration copy, the original, of which is not produced. The defense was that the defendants have been in possession of the properties in their own right. The defendants also denied the othi. The plaintiff examined himself and stated that he executed the document. Out of the two attesting witness, one was stated to be dead and the other was available. The plaintiff summoned that witness Periakaruppa Thevar but he did not appear and no further steps were taken for securing his appearance. The result is that the attestation of the document was not proved. The Courts below to k the view that under S. 68 of the Evidence Act where a document is required by law 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. In this case there is one attesting witness alive and he was not produced before the Court to prove attestation.

2 The argument for the appellant was that he came within the proviso to S. 68 which dispensed with the necessity of calling an attesting witness in proof of execution of any document, not being a will, unless its execution by the person by whom it purports to have been executed is specifically denied. Here the person who executed the document in the sense of having signed it has not denied the execution. But the denial of execution need not necessarily be by the person executing the document but by any one who is affected by the mortgage or against whom certain rights are claimed under the mortgage. That is the view taken by the decisions relied on by the lower appellate Court in Sheikh Karimullah Vs. Gudar Koeri and Others, . AIR 1949 149 (Nagpur) . and Radha Ballab and Another Vs. Deoki Nandan and Others . In my judgment in S. A. No. 1700 of 1948, I quoted with approval the view taken by a Bench of the Nagpur High Court in AIR 1949 149 (Nagpur) , and observed that what was required was denial of execution either by the person executing it or by anyone who is sought to be bound by the mortgage and it need not necessarily be only by the person executing the document. The denial of execution therefore may not be necessarily by the mortgagor, the plaintiff in this case, but may be by those who are sought to be bound by it, the legal representatives of the alleged original mortgagee. The question, however, turns on whether there has been such a specific denial in the written statement. On a reading of the written statement I am satisfied that the othi itself is denied which amounts to be denial of execution, of the document which is relied upon by the plaintiff as properly executed othi. In that view there is such a denial and it was therefore incumbent on the plaintiff to prove the execution by calling one of the attesting witnesses. That he has failed to do and the Courts below have rightly held that he would not be entitled to a decree for redemption as he has failed to prove the execution of the mortgage.

3 Even apart from that, where a redemption is sought against persons who are not parties to the mortgage s in the present case, where the sores of the alleged mortgagee are sued, and where the mortgage is denied, it is for the plaintiff to prove the mortgage, which must necessarily be, by proof of not only the execution in the sense of signing the document but that it has been duly attested by at least two attesting witnesses as required by the provisions of the Transfer of Property Act.

4 In any view, the plaintiff has failed to prove the mortgage, either its execution or its attestation, and unless the plaintiff places proof before the Court that he is a mortgagor in respect of a validly executed mortgage, he cannot have any relief by way of redemption. In either view the suit has to fail. he result is this second appeal fails and is dismissed with costs. No leave.