Thanneru Gangayya vs Bommadevara Subbamma and Others

John Wallis, C.J.—This is an appeal from the judgment of the Subordinate Judge of Bezwada dismissing a suit by a mortgagee on two

mortgages on two grounds, namely, that the mortgages were not duly proved for want of attestation and that there was no consideration.

I propose to deal with the second finding first. The defendant who is said to be so is alleged to have executed the suit documents in 1907 when

she was between 60 and 70, and the second witness for the plaintiff on whom the defendants now rely says that she was an intelligent woman She

admits that about that time she was constructing or reconstructing certain godowns. Both the mortgages recite that the advances under them were

made to her for the purpose of erecting these godowns. She now denies that she acknowledged the execution of both these documents before the

Sub Registrar, but this admission is proved, and according to the rules and practice, I have not the least doubt that the substance of the

transactions was expLalned to her including the recital that money has been advanced to her for this construction and that with full knowledge of

this, she acknowledged execution. Therefore I think that her evidence is entitled to very little weight. Further she has not given a proper account of

the means by which she acquired money to build these godowns. She said that she obtained the necessary funds by lending out the rents which she

had received. There is really no good reason to doubt that she received satisfactory consideration. The Subordinate Judge practically puts the

burden of proving consideration upon the plaintiff instead of putting the burden of proving want of consideration upon the defendant. Then as to the

question whether the suit mortgages are proved to have been duly attested, I think that the mortgages were duly proved. There were three attesting

witnesses, of whom two are dead and one was called as plaintiff''s 2nd witness. The plaintiff himself as his 1st witness proves that both the

documents were attested by the late Venkataswami Naidu who was the Municipal Chairman of Bezwada. They bear his signature. Then we have

to deal with the evidence of plaintiff''s 2nd witness whom the plaintiff was bound by law to call under the provisions of Section 68 of the Indian

Evidence Act, because if attesting witnesses are alive, at least one of them must be called. That witness gives in examination-in-chief clear evidence

of attestation. He says "" I attested both of them, and the executants (that is to say, the defence 1st witness and another) admitted receipt of the

money.... ""The 1st defendant built godowns. I saw it.... The 1st defendant is an intelligent woman. She is conversant with business. The deeds were

read out before the executants signed (or affixed marks.) I also asked them if the contents are true and correct. They said ""yes."" Then he goes on

to say what happened before the Sub Registrar. ""I was art identifying witness before the Sub Registrar. These are Exs. A and B. Veeraraghaviah

and Venkatasami are both dead. The 1st defendant affixed her mark and the late Venkatakrishniah signed in the two deeds in my presence.

Venkatasami was the manager of the Superintending Engineer''s Office. I do not remember if I attested before the 1st defendant affiixed her marks

and venkatakrishnayya signed the deeds."" No attesting witness affixes his mark before the signatories and the last silly answer does not in any way

detract from the effect of his evidence in his examination in chief. As I have pointed out the plaintiff had no choice about calling this man. He was

bound to call him and he gave evidence in his examination-in-Chief which would support the plaintiff''s case. Then he was subjected to cross-

examination and in my opinion his cross-examination shows that he had been got at, that he had arranged to answer every leading question which

was put to him by the vakil on the other side in the affirmative and that it was easy for the vakil to put questions to him and get answers which, if

believed, would put the plaintiff out of court so far as proof of attestation and execution were concerned and this is what happened, because in

cross-examination he went back on what he had previously said. He said ""I did not sfte the plaintiff on either occasion. Nor did I see him at the

Sub-Registrar''s Office. The executants did not tell me then that they received consideration."" (He said previously that they told him so). ""The 1st

defendant said I may attest because her son and she were both present then"" (that is to bring the case within the definition of the Privy Council, that

mere attestation of mere acknowledgment is not sufficient). "" Venkatadri read out the deeds. But the 1st defendant kept quite The 1st defendant

did not affix her mark and the late Venkata-krishnaiah did not sign the deeds in my presence."" This is exactly the opposite of what he previously

said. In my opinion he had''clearly been got at and I am entitled to act upon his sworn evidence which he gave in examination-in-chief. It, is

admittedly his signature which he signed as an attesting witness. He swore that he was present and that the documents were duly executed and

there is no reason to disbelieve him. The plaintiffs 3rd witness is certainly worthy of credit. The result is that I must held on the evidence of the

plaintiff coupled with the evidence of his witnesses that the documents have been duly proved.

It was contended for the appellant that u/s 68 of the Indian Evidence Act it was enough to call one attesting witness to speak to the execution of

trie documents only by the executants and that there was no necessity to prove even in a mortgage that the mortgage had been attested by a

second witness, as required by Section 59 of the Transfer of Property Act and the decisions in Ram Dei v. Munna Lal ILR (1916) All. 109 and

Shib Dayal v. Sheo Ghulam ILR (1916) All. 241 and Minor Venkata Reddi v. Muthu Pambula Naick (1920) 39 M.L.J. 463 appear to support

that contention. It is unnecessary to decide that point now. But I desire to say with great respect that as at present advised 1 am unable to take that

view. All that Sections 68 and 69 do is td impose a particular mode of proof and to require that certain documents shall be proved in a particular

way and in no other way, that is to say, if one attesting witness is alive you cannot prove execution and attestation by other witnesses although you

have them, without calling the attesting witness, and if no attesting witness is available then similarly Section 69 says that you cannot prove

execution and attestation by other evidence unless you prove the handwriting of at least one attesting witness. The other view would have the effect

of dispensing with the proof of a necessary ingredient to the validity of a document.

We have been referred to the common forms regarding proof of wills and in every case of proof, evidence is given not only of the execution but

also of due attestation (See Forms in Tristram and Coote''s Probate Practice, 15th Edition p. 792). I am not inclined to think that these sections in

any way dispense with the proof of what the law requires. All that they do is to apply the principle that you must prove a document by the best

evidence, that is to say, when there are attesting witnesses, you must prove execution by calling at least one of them, and if they i.e. not available,

you must prove that the handwriting is that of one of the attesting witnesses.

In the result, the appeal must be allowed and the ''suit decreed with costs throught. Time for redemption three months.

With regard to the 2nd and 3rd defendants who claim by title arising before the date of the suit mortgages and have been exonerated from the

suit in the Lower Court, they will not be affected by the decree but they will have no costs.

Krishnan, J.

I agree.