Smt. Fehmidi and Others vs IVth Upper District Judge and Others

Sudhir Narain, J.—The Petitioners seek writ of certiorari quashing the judgment and decree passed by the Judge Small Causes Court, Respondent No. 2, dated 24.5.1996 and the judgment dated 23.4.1997 passed by Respondent No. 1 dismissing the revision against the aforesaid order.

Respondent No. 3 filed Suit No. 69 of 1994 for recovery of arrears of rent, ejectment and damages for use and occupation of the disputed property on the allegation that Plaintiff-Respondent No. 3 purchased the property in question on 10.2.1984 from its erstwhile owner Nazir Khan. The Defendant-Petitioners were tenants of this property on monthly rent of Rs. 10. The Plaintiff sent a notice to the Defendant on 14.9.1984. after purchase of the said property, intimating that he had purchased the said property and is entitled to receive the rent. The Defendant did not pay the rent to the Plaintiff. A notice dated 3rd September, 1993 was given demanding arrears of rent and terminating their tenancy. Another notice dated 28.4.1994 was given to the same effect but the Defendants gave a wrong reply. Hence the suit.

The Petitioners filed written statement and denied that the Plaintiff was owner of the property in question. The sale deed relied upon by him was fictitious.The property in question is House No. 11/2577/1 while the case of the Plaintiff was that he purchased Property No. 11/2577. The trial court recorded a finding that the sale deed was executed by Nazir Khan, the erstwhile owner, on 10.5.1984. The Petitioners failed to comply with the notice sent by the Plaintiff. They committed default in payment of arrears of rent and were liable to pay the same for which the suit was decreed on 24.5.1996 and it has been affirmed by Respondent No. 1 on 23.4.1997.

Sri Ashfaq Ahmad Ansari, learned Counsel for the Petitioners, submitted that the sale deed was not proved as none of the attesting witnesses of the sale deed was produced to prove the execution of the sale deed. He placed reliance upon the decision Rajammal v. Chinnathal AIR 1976 Mad 4, wherein it has been held that once the execution of a document is denied by the alleged executant, the document cannot be admitted in evidence unless at least one attesting witness has been called for proving the execution of the document, if alive, and subject to process of the court as provided u/s 68 of the Indian Evidence Act. In this case the document in question was a mortgage deed. Section 68 of the Indian Evidence Act, 1872 provides that if 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.

The attesting witnesses are required to be produced to prove a document when such a document is required by law to be attested. A will is required to be attested u/s 63 of Indian Cessation Act. A mortgage deed is required to be attested u/s 59 of the Transfer of Property Act. There is no provision under the Transfer of Property Act which requires attestation of a sale deed. If a person relies upon a sale deed, it is not necessary for him to prove it by producing the attesting witnesses. He is required to prove the document as provided u/s 67 of the Evidence Act which provides the manner of proof of a document. It requires that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the hand-writing of so much of the document as is alleged to be of that person''s hand-writing must be proved to be in his own hand-writing. If the person relying upon the document proves the signature or the hand-writing of the executant of the document, the document is said to have been proved. In Gajraj and Ors. v. Board of Revenue, U.P., Allahabad and Ors. 1966 ALJ 149, it has been held that in order to prove the writing of a person, it is not necessary that the person must know the language in which the document has been written. If he deposes that the execution has been made in his presence and he has seen the executant putting his signatures in his presence, the document stands proved.

The case Ram Ratan Misra and Anr. v. Smt. Bittan Kaur AIR 1980 All 895 , relates to the execution of mortgage deed and the case Krishnan Assari Velayudhan Assari Vs. Parameswaran Pillai Madhavan Pillai, , relates to execution of the Will. These documents were required to be attested under law.

The Judge Small Causes Court relied upon the statement of the Plaintiff that the sale deed was executed in his presence by Nazir Khan and he had put his signature on the said document. This statement was believed. It was not necessary under the law to produce the attesting witness to prove the execution of the sale deed. It is a different matter when the court, on consideration of the statement of the witnesses proving the document, does not rely upon his statement for the reasons which he may assign in its order, but if the statement is believed and there is no other circumstance which indicates that the document was not executed, the execution of the document stands proved.

Learned Counsel for the Petitioner then urged that Respondent No. 3 had purchased property No. 11/2577 but the accommodation in question is No. 11/2577/1 and this property has not been sold to Respondent No. 3. The courts below have considered this aspect and found that because of numbering the property as 11/2577/1 does not show that it is a separate property. It is a part of Property No. 11/2577.

No other point has been pressed.

In view of the above discussion, there is no merit in the writ petition. It is accordingly dismissed.