Concise Analytical Summary of the Provided Opinion

Factual and Procedural Background

This appeal arises from a decree of the Additional Subordinate Judge of Monghyr in respect of twelve mortgage-bonds executed against three members of a Mitakshara joint family: Adit Narain, Daroga (Prasad) and Nageshwar Prasad. The mother of Nageshwar (widow of Kuldip Sahai) is also included among the defendants. Kuldip Sahai, who died in 1909, had been the managing member of the family; on his death Adit Narain became the managing member.

Procedural and factual points set out in the opinion include: - Up to 1907 Daroga was a party to several deeds as a minor under the guardianship of Kuldip Sahai; from 1907 onwards he executed bonds himself as a major. The last two bonds are dated 1910 and were executed by Adit Narain (for himself and for Nageshwar, a minor) and by Daroga for himself. - Of the twelve bonds, seven (nos. 9, 11, 16, 17, 18, 20 and 28 in the schedule) were proved by the scribe Mohammad Wali, and no other attesting witness was called for those seven documents. - In the court below defendants contended (i) that the documents could not be admitted without calling an attesting witness; (ii) that Daroga was a minor when certain documents were executed and that he signed under coercion; and (iii) there was no proof of passing of consideration or that any consideration was for family necessity. The learned Subordinate Judge rejected these contentions. The defendants then appealed; their counsel in this Court was Mr. Kulwant Sahai.

Legal Issues Presented

1. Whether documents signed by a person who describes himself as "scribe" may be admitted in evidence without calling an attesting witness, and what burden falls on a scribe who signs with the word "scribe".
2. Whether Daroga Prasad was a minor at the time of execution of the bonds (and, relatedly, whether his signatures were procured by coercion), i.e., whether his signatures are binding on him.
3. Whether consideration passed for the loans secured by the mortgage-bonds and whether any such consideration was given for a family necessity.
4. Whether an extra-judicial admission by the managing member (Kuldip Sahai) to the effect of the debts relieves the mortgagee from the necessity of calling attesting witnesses to the original mortgage documents as against other members of the family (in particular Nageshwar Prasad), and whether such admissions can create a lien on the minor's property without compliance with the statutory requirements for registering a mortgage instrument.

Arguments of the Parties

Appellants' / Defendants' Arguments (as recorded)

• The seven documents proved only by the scribe could not be adduced in evidence without calling an attesting witness.
• Daroga Prasad was a minor at the time of execution of the documents and, alternatively, he signed under coercion from his brother (Adit Narain), so his signatures should be void.
• There was no proof that consideration passed for the alleged loans, and if any consideration did pass it was not proved to have been for a family necessity.
• On behalf of Nageshwar Prasad (through respondents' vakil Mr. Sushil Madhab Mullick), it was argued that because the debts were for family necessity and were admitted by Kuldip Sahai in a subsequent, legally proved mortgage document, the mortgagee should not be required to call attesting witnesses to the original documents as against Nageshwar Prasad.

Respondents' / Plaintiffs' Arguments (as recorded)

• As against Adit Narain and Daroga Prasad the documents need not be proved by calling attesting witnesses because both Adit Narain and Daroga admitted in their pleadings that they executed the documents.
• With respect to Nageshwar Prasad, the plaintiffs bore the burden to prove execution of the documents; the evidence of the scribe Mohammad Wali was that he signed as scribe and he gave no evidence that he signed as an attesting witness.
• Evidence before the court (including the testimony of the plaintiff's witness Nanak Prasad and admissions by Adit Narain) established that consideration did pass and that the loans were for family necessity. The mortgagee also inquired at the time of each loan whether the stated family necessity existed, and that evidence was unrebutted.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sam Bahadur Singh v. Ajodkya Singh (34 Ind. Cas. 370; 1 P. L. J. 129; 20 C. W. N. 699; 3 P. L. W. 93)	Establishes that one who signs as a scribe must specifically prove that he intended to sign as an attesting witness; signing as "scribe" imposes a heavy burden to show the signature was intended as that of a witness.	The court applied this principle to conclude Mohammad Wali signed only as a scribe and gave no evidence he signed as an attesting witness; accordingly the seven documents proved solely by him were not admissible as against Nageshwar Prasad.
Letters Patent Appeal No. 13 of 1917 (Miller, G. J., and Mullick, J.)	Addressed and settled the question whether the earlier Sam Bahadur Singh decision was of Divisional Bench authority (i.e., whether non-concurrence of one judge affected its authority).	The court noted this later decision set at rest any doubt about the authority of Sam Bahadur Singh for the proposition regarding a scribe's burden of proof.
Satish Chandra Mitra v. Jogendra Nath (34 Ind. Cas. 862; 20 C. W. N. 1044; 24 C. L. J. 175; 44 C. 345)	Construction of Section 70 of the Evidence Act (as explained by Mr. Justice Woodroffe) concerning admissibility of admissions under that section.	One judge (Atkinson, J.) expressly subscribes to the construction of Section 70 given in this authority and refers to it approvingly in the opinion.
Abdul Karim v. Salimun (27 C. 190; 14 Ind. Dec. (n. s.) 125)	Decided that an admission under Section 70 is admissible only if made in the course of legal proceedings then pending before a court — a proposition later questioned by the court in the present opinion.	The court (concurring judge) stated that this proposition cannot be supported on principle or authority and therefore rejected such a narrow view of Section 70.
Rajmangal Misir v. Mathura Dubain (30 Ind. Cas. 576; 38 A. 1; 13 A. L. J. 881)	Also held that an admission under Section 70 is admissible only if made in the course of legal proceedings then pending.	The court rejected this proposition on principle and authority, aligning instead with authorities permitting antecedent admissions to be admitted under Section 70.
Konwar Doorganath Roy v. Ram Chunder Sen (4 I. A. 52; 2 C. 341; 3 Sar. P. C. J. 681; 1 Ind. Dec. (n. s.) 508) (Privy Council)	Authority indicating that admissions under Section 70 need not be confined to admissions made in the course of proceedings then pending; supports broader admissibility of antecedent admissions.	The court cited this Privy Council decision as authority to refute the proposition that Section 70 admissions must be made only during pending proceedings.
Hamplen v. Wallis (1881) 27 Ch D 251; 54 L. J. Ch. 1175; 51 L. T. 357; 32 W. R. 977	English authority bearing on the admissibility of admissions (cited in support of the broader construction of Section 70).	Cited by the court as supporting authority for the proposition that admissions antecedent to proceedings can be admissible under principles similar to Section 70.
Gobardhan Das v. Hori Lal (19 Ind. Cas. 121; 35 A. 364; 11 A. L. J. 379)	Authority referenced in relation to admissibility of admissions under Section 70 and similar principles.	Cited as additional authority supporting the view that Section 70 should not be restricted to admissions made only during pending proceedings.

Court's Reasoning and Analysis

The court proceeded through the contested points sequentially and applied the relevant legal principles and evidence as follows:

1. Attestation and admissibility:
   • The pleadings contain specific admissions by Adit Narain and Daroga Prasad that they executed the documents; therefore, as against them proof of attestation was unnecessary.
   • As to Nageshwar Prasad, the plaintiffs were required to prove execution. The scribe Mohammad Wali had signed the seven documents and gave no evidence that he signed as an attesting witness. Applying the authority in Sam Bahadur Singh v. Ajodkya Singh, the court held that a scribe who signs and describes himself as "scribe" bears an almost insupportable burden to show he signed as a witness; here the scribe did not meet that burden. The court therefore held those seven documents inadmissible as against Nageshwar Prasad.
2. Majority/minority and coercion regarding Daroga Prasad:
   • The court accepted the learned Subordinate Judge's finding that there was no plausible motive for fraud by the mortgagee in obtaining Daroga's signature; the arrangement that Daroga execute the documents suggested he was of age at the time.
   • Documentary proof offered for minority—namely a horoscope, a purported extract of a school attendance register, and a headmaster's certificate—were found to be unreliable or inadmissible: the register entry was made by a living person (Raj Kumar Lal), rendering the copy not properly admissible; the headmaster's certificate was hearsay and apparently procured for the case (dated 25 July 1914).
   • Oral evidence of the plaintiff's witness Nanak Prasad (that Daroga was between 25 and 26 years when the suit was brought) was accepted; on that basis the court concluded Daroga was of full age when he executed the documents. The court also noted that Daroga had not substantively supported his coercion allegation in this Court.
3. Proof of consideration and family necessity:
   • The court accepted the Subordinate Judge's factual finding that consideration did pass. Adit Narain admitted that consideration passed and took steps to negotiate settlement with the mortgagee, indicating he recognised the debts as binding on the family.
   • Each document explicitly stated the purpose of the loan as for family necessity; the mortgagee testified he inquired at each loan whether the stated necessity existed and was not cross-examined on that point. The court therefore accepted this evidence as unrebutted and concluded the consideration was for family purposes.
4. Effect of failure to call attesting witnesses as against Nageshwar Prasad; lien and registration:
   • Because the plaintiffs failed to call attesting witnesses to the seven documents proved solely by the scribe, a decree based on those seven documents could only be made against the interests of Adit Narain and Daroga Prasad (who had admitted execution), and not against Nageshwar Prasad.
   • The respondents' contention (Mr. Mullick) that the subsequent admission by Kuldip Sahai made in a later, legally proved mortgage document relieves the need to prove the original documents as against Nageshwar was rejected. The court accepted that while the nature of the debt might make the minor liable to discharge it, such a fact did not by itself create a lien on the minor's property. To create a lien requires a registered instrument and compliance with the relevant provisions of the Evidence Act (the court specifically referred to Section 68 in this context). An extra-judicial admission by Kuldip Sahai might or might not dispense with proving the original documents as against Kuldip himself, but it did not relieve the plaintiffs of the obligation to prove them as against Kuldip's son (Nageshwar).
5. Disposition as to the twelve documents and ancillary orders:
   • For the seven documents not legally proved (the ones proved only by the scribe), the court ordered a decree against Adit Narain and Daroga Prasad for the full sums covered by those seven mortgages and directed that the right, title and interest of Adit Narain and Daroga Prasad be brought to sale in execution of that decree.
   • Nageshwar Prasad was to be relieved from liability under the decree insofar as these seven documents were concerned because he had not admitted the originals and they were not proved against him.
   • Nageshwar had not appealed in respect of the other five documents (those not part of the seven discussed earlier) and therefore remained bound by the decree made on those five documents; the amount due on those five would be realised by sale of the whole joint family's right, title and interest in the property covered by those five documents.
   • The court fixed a period of grace of six months from the date of the decree. Interest would run at the prescribed rate on the debt only up to the expiry of the period of grace and thereafter at the Court rate on the whole decree, including costs.
   • As to costs: the court made no order for costs in the appeal; the plaintiff would have his costs in the lower court proportionate to the amount decreed, and the defendants would bear their own costs.

Holding and Implications

Holding:

- On the seven mortgage documents proved only by the scribe Mohammad Wali, the court held those documents inadmissible as against Nageshwar Prasad because the scribe failed to prove he signed as an attesting witness. Consequently, a decree based on those seven documents is made against Adit Narain and Daroga Prasad only; Nageshwar Prasad is relieved from liability under the decree insofar as those seven documents are concerned.

- Daroga Prasad was found to have been of full age when he executed the documents and was not able to establish coercion; his signatures are therefore binding on him.

- Consideration was found to have passed and to have been taken for family purposes; the mortgagee's unchallenged evidence supported that finding.

- Nageshwar Prasad remains bound by the decree on the five other documents (not part of the seven above) because he did not appeal in respect of those five; recovery on those five can be effected by sale of the whole joint family's interest in the property covered by them.

Direct consequences and practical implications for the parties:

• A decree will be executed against the right, title and interest of Adit Narain and Daroga Prasad for the sums due under the seven documents that were not legally proved as against Nageshwar.
• Nageshwar Prasad is discharged from liability in respect of those seven documents but remains liable under the five documents to which he did not appeal; those five will be enforced against the joint family's interest.
• The period of grace for payment is six months from the date of the decree; interest rules for the grace period and thereafter are specified in the decree.
• No order as to costs in the appeal; specified allocations of costs for the lower court and defendants bearing their own costs are set out in the judgment.

The opinion contains detailed discussion of statutory provisions (Sections 68 and 70 of the Evidence Act and Sections 17–20 on admission) and of case law bearing on admissibility of admissions and the burden upon a scribe; the court applied these authorities in reaching its decision. The opinion does not itself state that it sets or disclaims any binding new precedent; it applies and interprets existing authorities for the resolution of the issues in this appeal.