Wanchoo, C.J:— This is an appeal by Shri Indernath Modi against the judgment and decree of the District Judge. Jodhpur, which had come up for hearing once before, and some of the points in dispute-were decided on the 7th of October, 1952. That judgment will be treated as a part of the present judgment. The facts are all given in that judgment and it is not necessary to repeat them in detail here. Suffice it to say that the suit by the plaintiff-appellant was for recovery of possession on the basis of a mortgage said to have been made by one Nandram and his brother Achlu on Baisakh Badi 7, St. 1975 (22nd April, 1919)., After the mortgage, Nandram executed a lease in favour of the mortgagee and remained in possession as a tenant.

2. The original mortgagee Jainarain however sued Nandram on his failure to pay the rent, and got a decree for ejectment and obtained actual possession by execution on the 19th of November, 1931. Thereafter, there was trouble between Jai Narain and Mst. Sarupi, mother of Nandram. She had taken possession of the house by trespassing on it, and Jainarain's attempts to oust her through the criminal Courts failed. She died in 1942, and thereafter Nandram and his two sons remained in possession of the house. In the meantime. Jainarain transferred his rights to the father of the present appellant in 1944, and that is how the present suit was brought. It may be added that one of the houses mortgaged has already been sold, and the present suit is only about the other house.

3. The suit was filed against Nandram and his two soils Gauri Shanker and Jagdish. Nandram and Gaurishanker did not contest it, and it was Jagdish alone who contested the suit. The main contentions of Jagdish were two-fold, namely that the suit was barred under the provisions of O. II. R. 2 of the CPC and on the principle of resjudicata and that the mortgage was without legal necessity, and had not been made in lieu of an antecedent debt, and was therefore not binding on Jagdish. It may be added that Jagdish was not born when the mortgage was executed, but sometime afterwards.

4. When the matter first came before this Court the plea raised under O. II, R. 2, and on the principle of res judicata by the respondent was negatived. Some other minor points raised on behalf of the respondents were also decided, but as this Court was of opinion that certain material issues had not been framed, it framed the following six issues and remanded the suit to the Court below for decision of those issues:

1. Is the property in dispute ancestral?

2. Did such members of the family as were alive on the date of the mortgage form a joint Hindu family with Nandram as their Karta?

3. Has Jagdish a right to challenge the alienation on the ground that though born after the alienation he had come into being before the right of the last member (who was alive at the time of the mortgage) to challenge had become extinguished?

4. Was the alienation made for legal necessity?

5. Was the transfer made in lieu of antecedent debt?

6. Whether there was partition between Nandram and Achlu and this property came to Achlu's share? If so, what is its effect?

5. The findings on remand on the various issues have now been given. It was found that the property in dispute was ancestral, and that the family was joint on the date of the mortgage with Nandram as Karta. Jagdish's right to challenge the alienation was negatived. It was also held that the alienation was for legal necessity, and in lieu of antecedent debt. Lastly, it was held that there had been a partition between Nandram and Achlu and this property came to the share of Achlu. Consequently Jagdish could not, in any case, challenge the alienation after the partition.

6. The findings on issues 3 to 6 have been challenged on behalf of the respondent before us. So far as the findings on issues 1 and 2 are concerned, there was no dispute in the Court below between the parties. We have heard learned counsel for the parties on issue No. 6 relating to partition between Nandram and Achlu. If the decision of that issue by the trial Court is upheld, the appeal must succeed, for Jagdish would then have no right to challenge the alienation on the ground of want of legal necessity, or on the ground that the transfer was not in lieu of antecedent debt.

7. The plaintiff-appellant relied in this connection on

(a) a cony of the registered partition deed of 1920.

(b) order of the Revenue Minister, dated 6th June, 1931.

(c) order of the Development Officer, dated 17th April, 1935, and

(d) the statement of Ajairaj in the Court below.

8. It may be mentioned that the original of the partition deed was summoned from the respondents, but they expressed their inability to produce it.

9. The Court below has held that the partition deed is proved as it is a registered document, and has relied on Mohanlal v. Rasula, ILR (1951) 1 Raj 17 : (AIR 1951 Raj 117) (A). In that case it was held that ‘evidence of due registration may itself be evidence of the execution of document’. It has, however, been contended on behalf of the respondent that case lays down the law too broadly, and mere registration cannot take the place of proof of execution of a document.

10. The basis of the proposition laid down in Mohanlal's case (A) is to be found in Section 60(2) of the Registration Act which provides that the Registrar would endorse a certificate on the document as to its registration. Such certificate then becomes admissible for purposes of proving that the document has been duly registered in the manner provided by the Registration Act, and that the facts mentioned in the endorsements referred to in S. 59 have occurred as therein mentioned.

11. Among the endorsements referred to in S. 59, is the endorsement under S. 58. The endorsement under S. 58 includes the signature and admission of every person admitting the execution of the document. It is from this admission of execution made under S. 58 that the Courts have held that the registration of documents is some proof of its execution. At the same time, it may be remembered that this mode of proof cannot take the place of proof as provided by Section 67 of the Evidence Act which lays down 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 in that person's handwriting must be proved to be in his handwriting.

12. It is only where it is not possible to take recourse to the method provided in S. 67 because of the fact that the executant and the marginal witnesses are either dead or cannot be found that the Courts have taken recourse to the presumption under Section 60(2) of the Registration Act. Mohanlal's case (A) was based on the decision of their Lordships of the Privy Council in Gangamoyi Debi v. Troiluckhya Nath Chowdhry. ILR 33 Cal 537 (PC) (B), where it was held that

“the registration of a document is a solemn act to be performed in the presence of a competent official appointed to act as Registrar, whose duty it is to attend the parties during the registration and see that the proper persons are present, and are competent to act, and are identified to his satisfaction, and all things done before him in his official capacity and verified by his signature will unless it be shown that a deliberate fraud on him has been successfully committed, be presumed to be done duly and in order.”

13. That was a case of a will executed in April, 1867 and the suit was brought sometime in 1897. The original will was produced and so was an attesting witness. It was not necessary, therefore, in that case to rely on the presumption under Section 60(2) of the Registration Act. The remarks of their Lordships to which we have referred above were with respect to another contention in that case, namely that the testator had not a disposing state of mind. It was in that connection that their Lordships observed that registration was a solemn act, and everything must be presumed to have been done duly and in order unless a fraud on the Registration Officer was shown to have been committed.

14. In Gopal Das v. Sri Thakurji, AIR 1943 PC 83 (C) their Lordships again made certain observations in connection with Section 60(2) of the Registration Act. That was a case relating to a document executed in 1881, and the suit in which the question arose was filed sometime before 1930 more than 40 years after the document had been executed. In that connection, their Lordships used the presumption of Section 60(2) of the Registration Act after making the following observations at p. 87:

“It seems clear that any objection to the sufficiency of the proof upon this point would have been idle the circumstances being such that the evidence of due registration is itself some evidence of execution as against the plaintiffs. Wills and documents which are required by law to be attested raise other questions but this receipt was not in that class.”

15. It is obvious from these observations of their Lordships that the presumption under S. 60(2) is raised when evidence to prove execution in the manner provided in Section 67 of the Evidence Act is not available due to the executant or the marginal witnesses being dead or for some other reason. The presumption of S. 60(2) cannot take the place of proof as required by Section 67 of the Evidence Act when witnesses are available to prove the document in the manner provided by the Evidence Act.

16. Learned counsel for the respondent in this connection relied on Naresh Chandra Bose v. State of West Bengal, (S) AIR 1955 Cal 398 (D). Reliance in this case was placed on Section 67 of the Evidence Act, and it was held that the signature of the executant must be proved before such a document is admitted in evidence, and that mere registration of a document would not by itself be sufficient proof of its execution. These observations were with respect to sale deeds of 1945 about which evidence as required by S. 67 could be available.

17. If we may respectfully say so, the proposition of law laid down in Mohanlal's case (A), namely, that evidence of due registration may itself be evidence of registration of document is not incorrect if the other circumstances to which we have referred in the present judgment are kept in mind by Courts when using the presumption arising under Section 60, sub-section (2) of the Registration Act.

18. In the case before us the document was executed in 1920. The original is not forthcoming. It does not appear that the executant and the marginal witnesses are alive. In these circumstances, presumption of S. 60, sub-s. (2) may be raised by the Court to hold that the document was duly executed by Nandram and others. This document shows that there was a division between Nandram and Achlu and other members of the family and the house in dispute came to the share of Achlu. The fact that there was partition between Nandram, Achlu and other members of the family, and the house in dispute came to the share of Achlu is strengthened by subsequent orders by the State in which the partition deed of 1920 had been relied upon.

19. In 1931 the Revenue Member released the house under attachment on the ground that it belonged to Achlu, and said that possession might be delivered to the mortgagee namely Jainarain. Then in 1935 Mst. Sarupi, mother of Nandram, wanted to gift the house in dispute to her grandson Gourishanker. That application was rejected on the ground that there had been a partition in 1920 between Nandram, Achlu and other members of the family, by which the house came to the share of Achlu.

20. Lastly the Court below relied on the statement of Ajairaj who said that he knew Nandram and Achlu etc. from 1913. He stated that the house in dispute was mortgaged to Jainarain for Rs. 3,000/- as Nandram stood in need of money. He further stated that later there was a partition between Nandram and his brothers, and the house in dispute came to the share of Achlu. He further stated that he had seen the partition deed before it was registered and it bore the signature of Nandram and others.

21. We are of opinion that in the circumstances of this case, this evidence is sufficient to establish that there was partition between Achlu and Nandram soon after the mortgage deed, and that the house in dispute came to the share of Achlu. The finding of the Court below to this effect must therefore be upheld.

22. We have now to see what is the effect of this finding. The property was certainly joint when the mortgage was made, but thereafter there was a partition, and this particular property came to the share of Achlu. After the death of Achlu this property would go by succession to Nandram, and thereafter to Jagdish. Jagdish therefore could not raise any objection to the validity of the mortgage by Achlu and Nandram, which Achlu himself could not. Jagdish's interest in the property now is not by survivors hip, but by virtue of his succession to Achlu's property through his father Nandram.

23. In these circumstances, Jagdish cannot, in our opinion, raise the plea that the mortgage was not for legal necessity or for antecedent debt, for Achlu himself, whose successor Jagdish is, could not raise these pleas. In this view of the matter, it is not necessary to decide issues 3, 4 and 5, for it is not open to Jagdish to challenge the alienation on the ground that he was a member of a joint Hindu family of Achlu, and that the alienation was for legal necessity or for an antecedent debt.

24. Lastly, it was urged on behalf of the respondent that the mortgage deed of St. 1975 was void ab initio, and reliance in this connection was placed on Lachhman Prasad v. Samam Singh, AIR 1917 PC 41 (E). The argument is put this way. The mortgage deed was executed when the family was undoubtedly a joint Hindu family. It is open, to the Court to see whether at that time there was any legal necessity for the alienation, or whether the alienation was for an antecedent debt.

25. If the Court comes to the conclusion that there was no legal necessity or there was no ante-cent debt, the mortgage would be void ab initio, and therefore this Court should go into the question of want of legal necessity or absence of antecedent debt even though after the partition of 1920 Jagdish may not have a right to raise this point. It is enough to say that a mortgage by the Karta of a joint Hindu family is not void ab initio even though it may turn out later that it was not for legal necessity or in lieu of an antecedent debt.

26. It is only voidable at the instance of other coparcener. If such a suit is brought the Court will certainly declare the alienation void in its entirety if legal necessity or payment of an antecedent debt is not proved. But it is one thing to say that the mortgage could be declared void in its entirety by the Court, and it is quite another thing to say that it is void ab initio. In Lachhman Prasad's case (E) all that their Lordships of the Privy Council said was that if it were found that the mortgage was neither for family necessity nor for discharge of an antecedent debt, it would be void in toto. Their Lordships never held that it would be void ab initio.

27. The matter is different from gifts, as gift of an undivided interest in a joint family property is void altogether. As, however, it is not possible for Jagdish to challenge the validity of the mortgage after the partition between Achlu, Nandram and others, it is not necessary to go into the question whether the mortgage was for legal necessity or for payment of an antecedent debt, the mortgage being only voidable at the instance of some person entitled to avoid it and not void ab initio.

28. The final result therefore is that the mortgage with respect of the house in dispute subsists and the plaintiff appellant is entitled to possession as for mesne profits, the plaintiff claimed it at the rate of Rs. 15/- per month. This claim was not challenged in the written statement, and under the circumstances, the plaintiff is entitled to mesne profits amounting to Rs. 570/- up to the date of the suit and Rs. 15/- per month thereafter till he is put in possession. We, therefore, allow the appeal, and grant the plaintiff a decree for possession of the house described at ‘A’ in the schedule annexed to the plaint. We also grant the plaintiff Rs. 570/- for mesne profits up to the date of the suit, and further mesne profits at the rate of Rs. 15/- per month from the date of the suit to the date the plaintiff is put in possession of the house. The plaintiff will get his costs of the suit from the contesting defendant. We do not think however that any interest should be allowed on mesne profits, and therefore pass no decree as to interest.

G.M.J

29. Appeal allowed.