Judgement

:- This second appeal by the plaintiff Dhiren Bailung raises some interesting questions of law bearing on the interpretation of Section 68 of the Evidence Act and Sections 3 and 59 of the Transfer of Property Act as also the interplay, if any, of the two sets of the sections.

2. Dhiren Bailung filed a suit on 31-3-1963 against Sashi Konwar and Paniram Konwar, besides others, claiming a decree for possession of 9 bighas and odd of land in his capacity as usufructuary mortgagee. He also claimed a money decree for a sum of Rs.1,000/-representing the damages suffered by him for deprivation of the possession of the mortgaged land, apart from another small sum of Rs.127.43. It was alleged in the plaint that Sashi and Paniram, who are real brothers, had mortgaged the land with the plaintiff for a sum of Rs.930/- by a registered deed dated 12-4-1960, and that in terms of the mortgage agreement interest on the mortgage money was to balance the produce of the land of which possession was made over to him (the plaintiff) but the payment of land revenue was the liability of the mortgagors. The land revenue on the mortgaged land having not been paid by the two mortgagors, the Government put it to auction sale and it was purchased on 1-2-1961 by Joydhar Konwar, a cousin of the mortgagors and who was cited as defendant No.3 in the suit. The plaintiff took steps for cancellation of the auction sale and succeeded in the attempt. The sale was set aside by the Revenue Board on plaintiff depositing a sum of Rs.124.04 in the Treasury. However, in the meantime, the plaintiff alleged, the possession of the mortgaged land had been taken over by Joydhar Konwar who began to enjoy the land along with the two mortgagors. It is in such circumstances that the plaintiff was driven to file the suit culminating in this second appeal to vindicate his rights as a mortgagee.

3-4. Sashi Konwar did not put in appearance despite service and so was proceeded against ex parte. However, before the suit could be decided this Sashi died and his mother Bhutuki was brought on the record as his representative. Tirthanath and Debaram, another two brothers of the mortgagors, were cited as defendants Nos.4 and 5 inasmuch as the mortgaged land was part of a bigger area which all of them had inherited on the death of their father Bhakat Konwar. Three separate written statements were filed, one by Bhutuki, another by defendants Nos.2, 4 and 5, and the third by defendant No.3 Joydhar. In substance all the three written statements adopted identical defence, which was that the plaintiff was not entitled to possession of the land, nor to the amount claimed, for it was falsely alleged by him that the land had been mortgaged with him by Sashiram and Paniram, or that the latter could part with possession of that land in his favour, or that he had actually been put into possession of that land. It was further pleaded that Sashiram and Paniram had never been in exclusive possession of the land said to have been mortgaged by them.

5. The suit was dismissed by the Munsiff by his judgment dated 31-7-1968 on the findings that since attestation, of the mortgage deed Ext.1 had not been proved on valid mortgage had been established and that since the mother of Sashiram had been brought on; the record more than 90 days after Sashis death, the suit had abated qua him (Sashi). An appeal filed by the plaintiff in the Court of the Assistant District Judge, Dibrugarh was dismissed by the latter on 25-3-1970 on affirming the finding of the Munsiff that for want of evidence bearing on the attestation of the deed Ext.1, no mortgage had come into being between the parties. The Assistant District Judge held further that the suit had abated in its entirety for failure to bring the legal representative of Sashi on record within the statutory period.

6. The plaintiff having felt aggrieved with the judgment and decree of the lower appellate court filed the instant second appeal. It is unfortunate that none of the respondents cared to appear in this Court with the result that the appeal had to be heard ex parte.

7. Shri P. Goswami, representing the appellant, challenged in a determined manner the findings of the lower appellate court that the mortgage had not been proved and that the suit had abated in its entirety. Shri Goswami, however, candidly conceded, that the suit had abated qua Sashi since his representative was not brought on the record within 90 days of his death.

8. Firstly I propose to examine the question about the validity of the mortgage. The deed Ext.1 ex facie bears the attestation of two witnesses and it is a registered document. The plaintiff, who is a minor, examined only one out of the two attesting witnesses, he being P.W.1, Harakanta Duara. His father Tularam, through whom he had filed the suit, also entered the witness box. Harakanta affirmed that he had attested the mortgage deed Ext.1 while Sashi and Paniram had executed that document by placing their signatures on it in his presence. He also affirmed that Rs.930/-were paid in cash by Tularam to the mortgagors. Tularam himself deposed that Sashi and Paniram had executed the mortgage deed in favour of his son on getting Rs.930/- in cash from him. This is the entire evidence in proof of the mortgage deed Ext.1. The question for determination is whether that evidence is sufficient to prove the mortgage transaction between the parties.

9. Section 59 of the Transfer of Property Act states that where the principal money secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of title-deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. The expression "attested" is defined in Section 3 of the same Act to mean attested by two or more witnesses each of whom has seen the executant sign or affix him mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence, of the executant. Section 68 of the Evidence Act states 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 proviso appended to the section is to the effect that it shall not be necessary to call an attesting witness in .proof of the execution of any document, not being a will, which has been registered, unless its execution by the person by whom it purports to have been executed is specifically denied. The marginal heading of that section reads: "Proof of execution of document required by law to be attested".

10. Indisputably "attestation" and "execution" are two different acts, one following the other in the order stated. Attestation of a document obviously is meant to ensure that the executant was a free agent and not under pressure, nor subject to fraud, while executing the same. The reason behind the legislative imperative, set out in Section 68, Evidence Act, to call at least one attesting witness for proof of an attestable document appears to be that he is a witness best suited to tell the Court about the circumstances under which the document was executed inasmuch as he was a witness appointed or agreed upon by the parties to speak to the circumstances of its execution before any controversy had arisen between them. Therefore, what is more vital for the Court to determine is whether the document requiring attestation had been executed in an upright manner. The attesting witnesses can help the Court best in formulating its opinion about the execution of the document. This conclusion is reinforced by what is stated in the proviso to Sec.68 of the Evidence Act in respect of documents, save wills, which have been registered. Qua such documents, the law dispenses with the requirement (mentioned in the body of the section) to call at least one attesting witness to prove the execution of compulsory attestable documents. Obviously, this exception was made as the genuineness of execution gets credibility from the registration of the document concerned. Therefore, in my opinion, the provisions set out in the body of Section 68 were adopted only to ensure sanctity of the execution of such solemn documents as wills, gift deeds and mortgage deeds. Further, it will be noticed, attestation is insisted upon by the provisions of the Transfer of Property Act. However, the document relied upon by a party has to be proved in accordance with the provisions of the Evidence Act, and it the requirements of the Evidence Act are satisfied, the document shall be taken to have been proved. This does not amount to saying that the prescribed attestation is a dispensable formality. What I mean to say is that if the party interested in establishing a compulsory attestable document can prove it in the manner enjoined by the Evidence Act, then that document can, to use the words of Section 68, "be used as evidence", and if it can be used as evidence then nothing more remains to be done by the party interested in utilizing it, unless, of course, on the rest of the issues raised between the parties that document has to be jettisoned as of no legal consequence.

11. All that Section 68 demands before a document requiring attestation can be used as evidence is that one attesting witness at least should be called "for the purpose of proving its execution". It has been stated above that one attesting witness was called in the present case and he testified that Sashi and Paniram had executed the mortgage deed Ext.1 in his presence by placing their signatures on it and that he had attested the document. Therefore, the requirements of Section 68 were evidently satisfied. However, the two courts below were of the opinion that it was incumbent upon the plaintiff to establish, before he could succeed in the suit, the attestation of the deed by two witnesses, as enjoined by Section 59 of Transfer of Property Act, in the manner required by Sec.3 thereof where the expression "attested" is defined. I find it difficult to endorse that opinion. AIR 1932 All 527 (FB), Lachman Singh v. Surendra Bahadur, is an authority for the propositions that Sections 68 and 69 of the Evidence Act "make a document which is attested admissible in evidence if the requirements of those sections are complied with", and that "If the documents become admissible in evidence they become admissible to prove what they contain, that is to say, they would become admissible to prove whether a mortgage had been executed or a gift had been made." There seems to be no warrant for an argument, the Full Bench observed, that a deed may be merely admissible and yet may be incapable of being read as a document of the kind which it professes to be. The Full Bench clinched the issue by stating further that to make a mortgage deed or a gift deed admissible in evidence as a deed of mortgage or gift, as the case may be, it is enough to comply with the provisions of Section 68 or S.69 of the Evidence Act. However, it was added that If the question raised is whether the document did create a mortgage or gift or not, it must be proved that the requirements of law as contained in Sections 59 and 123, Transfer of Property Act, have been complied with. I respectfully agree with these observations of the Full Bench. Therefore, the precise question that falls for determination in the present appeal is whether, on the pleadings of the parties, there arises a question whether the deed Ext.1 does or does not create a mortgage.

12. A reference to the pleadings of the parties will bring out that the question of attestation was neither raised by the plaintiff nor by anyone of the defendants. Form No.45 in 1st Schedule of the Civil P.C. relates to a suit on the basis of mortgage. That form does not enjoin that the plaintiff must mention in the plaint that the mortgage deed had been attested in the manner required by law. Therefore, it was not obligatory for the plaintiff to adopt a plea to that effect. If the defendants or anyone of them wanted to assail the validity of the mortgage on the basis of lack of due attestation, he should have raised such a question in his written statement so that the matter could be set out in issue and parties given adequate opportunity to lead proper evidence in support of their rival contentions. On going through the record of the present suit, I find that the question of attestation was raised for the first time at the stage of arguments addressed in the trial Court. No cross-examination was done either on Harakanta Duara or on the plaintiffs father respecting attestation of the deed Ext.1, and that despite the fact that Harakanta Duara had affirmed in his examination-in-chief that he had attested the document after the two mortgagors had executed it. Therefore, the question of attestation was never a live issue between the parties during the course of the trial and since the requirements of Section 68, Evidence Act, were very clearly complied with, the document Ext.1 can be used for proving the mortgage set up by the plaintiff.

13. I may usefully refer to some authorities in support of the conclusion reached by me. In the case Dashrath Prasad v. Lallosingh, AIR 1951 Nag 343, the relevant issue set out between the parties was: "Whether defendant 1 executed the mortgage deed with proper attestation and for consideration", and the only evidence led to prove execution and attestation was the statement of the plaintiff himself. The plaintiffs statement was brief and it read: "I advanced Rs.1450/- to the defendants who executed the mortgage deed dated 3-10-1930". Bose, C.J., as he then was, held that the mortgage deed had been properly proved and could be used in evidence because "when a witness says a document has been executed and his statement is not challenged regarding the details it would be presumed that there was due execution according to law in just the same way as when a witness says a document was attested it would be presumed that it was attested with all the formalities which the law prescribes for that particular type of document". The Court further observed that if attestation or even if due execution is specifically attacked, then there must be proof and the Courts will probably require something more than the presumption that arises from the examination of witnesses who prove the execution of the document. However, it was added, when there is only a general denial and there is no cross-examination of a witness who comes forward to swear to execution regarding attestation then the presumption can be called in aid. The following extract from a previous judgment of the Nagpur High Court reported in AIR 1950 Nag 83, Kuwarlal Amritlal v. Rekhlal Koduram, was cited with approval by Bose, C.J.:-

"When attestation is not specifically challenged and when a witness is not cross-examined regarding the details of the attestation it is sufficient for him to say that the document was attested by the other witness and himself. That is enough to prove the attestation. The law will then assume that when the witness swears that it was attested the witness means by that attested according to the forms required by law. If the other side wants to Challenge that statement it is their duty, quite apart from raising it in the pleadings, to cross-examine the witness along those lines. Where that is not done the party proving attestation is entitled to assume that the mode of attestation was not being attacked and therefore it was enough for his witness merely formally to prove attestation"

.

14. In the case of Lachman Singh (supra), the Allahabad High Court held that when a mortgagee sues to enforce his mortgage and the execution and attestation of the deed are not admitted, the mortgagee need prove only this much:

"that the mortgagor signed the document in the presence of an attesting witness and one man attested the document, provided the document on the face of it bears the attestation of more than one person"

. It was stated further that if the validity of the mortgage be specifically denied in the sense that the document did not effect a mortgage in law, then it must be proved by the mortgagee that the mortgage deed was attested by at least two witnesses. In all the three written statements filed in the present case, as stated earlier, the question of want of attestation was never raised. The only points urged were that Sashi and Paniram being not in exclusive possession of the land in dispute they could not have legally mortgaged it and that the alleged execution of the deed by them was not admitted. It is in order to mention that Sashi did not care to put in appearance in the trial Court and so was proceeded against ex parte, and that Paniram (who died during the pendency of the appeal in the Court of the Assistant District Judge) did not think it worthwhile to enter the witness box to deny either the execution or the attestation of the deed Ext.1. Therefore, in the background of the pleadings of the parties and evidence led by them I see no escape from the conclusion that the plaintiff was required in law to call only one attesting witness to prove the execution of mortgage deed to entitle himself to use it as evidence of mortgage, and that since that requirement is satisfied the deed Ext.1 must be taken to be admissible and to have proved the mortgage. Hence, I set aside the concurrent findings of the two courts below that the document Ext.1 has not been properly proved nor the existence of mortgage established.

15. Shri Goswami invited this Court to hold that the case falls within the ambit of the proviso to Section 68, Evidence Act, and as such there was no necessity for calling an attesting witness as provided for in the body of the section, the document having been duly registered. After giving the matter my careful consideration, I have not been able to accept Shri Goswamis this contention as sound in law. The proviso dispenses with the necessity of calling an attesting witness respecting registered documents other than wills if the execution of the document is not specifically denied. Shri Goswami submitted, while elaborating his contention, that some meaning must be given to the word "specifically" used in the proviso, and placing his reliance upon the observations of Bose, C.J., in Dashrath Prasads case (supra) he urged that mere general denial of the execution in respect of registered documents would not attract the provisions contained in the body of Section 68. The proviso to Section 68 was added in the year 1926. Rule 3, Order 8, Civil P.C. of 1908, states that it shall not be sufficient for a defendant in his written statement to, deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. I think we can draw considerable help from this Rule 3 in interpreting the word "specifically" used in the proviso to Section 68 and it is specially so when the proviso was added in 1926 and the Civil P.C. was placed on the statute book of the country in the year 1908. It is safe to assume that the legislature was well aware of the provisions of Rule 3 when it added the proviso to Section 68. That proviso, it will be noted, relates to a matter of pleading and that constitutes an added reason for interpreting the word "specifically" on line with aand identical word used in Rule 3. A plain reading of R.3 brings out that the word "specifically" is used in contradiction to the word "generally" mentioned in the same Rule. Rule 3, I believe, demands that each allegation of fact made in the plaint should be individually dealt with and the stand of the defendant made known. Rule 3 would not permit the defendant to write in one sentence that he does not admit the various allegations made by the plaintiff in the plaint or he denies them en masse. The object behind R.3 is that the defendant should not exhibit casualness. in the matter of his pleadings and that he should exhibit sense of responsibility by making his stand known to the Court by dealing with individual facts set out in the plaint. Judged by this interpretation of Rule 3. I feel satisfied that in all the three written statements filed in the present case the factum of execution of the deed dated 12-4-1960 by Sashi and Paniram had been specifically denied. The factum of the execution of the mortgage deed is set out in paragraph 1 of the plaint. In paragraph 4 of the written statement filed by defendants Nos.2, 4 and 5 it was firstly stated that "all the allegations made in para 1 of the plaint are denied", and then down below in the same para that denial was repeated. Hence, there is no escape from the conclusion that the execution had been specifically denied and so the case would properly fall within the body of Section 68 rather be covered by the proviso appended thereto.

16. To sum up, I hold that the defendants had denied only the execution of the mortgage deed, that they had not challenged its due attestation, that the legality of the mortgage deed was assailed on the specific ground that Sashi and Paniram had no exclusive right to mortgage the land in dispute, and that the parties went to trial only on the specific allegations adopted by them in their written pleadings. I hold further that in the context of the parties pleadings the plaintiff was called upon to prove only the execution of the mortgage deed, that the execution is proved by the testimony of Harakanta Duara, an attesting witness, and plaintiffs father Tularam, and that .the testimony of Harakanta Duara constitutes enough of compliance with the statutory requirements set out in the body of Section 68. Hence the mortgage pleaded by the plaintiff is proved beyond doubt.

17. I am left only to deal with the question whether the suit had abated in its entirety on the failure of the, plaintiff to bring the legal representative of Sashi on the record within the statutory period. The suit is founded on a mortgage and the liability of the mortgagors evidently is both joint and several. In that background, I feel clear, the suit abated only against Sashi. The cause of action against Paniram clearly survived the death of Sashi. Therefore, I set aside the finding of the lower appellate Court that the suit had abated in toto.and restore that of the trial Court, namely, that the suit had abated only in respect of Sashi. I also uphold the findings of the trial Court that immediately after the mortgage was effected the plaintiff was put into possession of the land and that he was dispossessed after Joydhar had purchased the land in auction-sale. These findings were not disturbed by the Assistant District Judge in appeal. They are amply supported by evidence on record. In view of these conclusions, I allow the appeal to the extent of one-half share in the land in dispute which belongs to Paniram; that one-half share will carry the entire mortgage charge of Rs.930/- In favour of the plaintiff. The latter is therefore allowed a decree for ejmali possession of one-half share in the land in dispute against a mortgage charge of Rs.930/- plus Rs.127.04, which sum the plaintiff had to pay to get the auction sale of the land set aside. That is a legitimate burden on the mortgaged property. This decree is ex parte and shall operate only against the legal representatives of Paniram qua the mortgage liability though the decree for ejmali possession is against all the defendants.

18. In view of the partial success of the appellant-plaintiff, I leave the parties to bear their own costs in all the three Courts.

Order accordingly.