The Judgment of the Court was as follows:—
Richardson, J.:— This is a second appeal.
The Plaintiff who is the Appellant before us seeks to recover the amount due under a bond purporting to create a simple mortgage as security for a loan made by the Plaintiff to the Defendant. The plaint was filed more than six years but less than twelve years after the date fixed for repayment.
The trial Court, holding that the transaction was fraudulent and collusive and without consideration, dismissed the suit.
The learned Subordinate Judge in the lower Appellate Court found on the evidence that there was consideration for the bond and that it was not a fraudulent and collusive document. He was of opinion, however, that there was no reliable evidence to show that the bond was executed in the presence of two attesting witnesses and he accordingly confirmed the Munsif's decree of dismissal.
It appears that at the hearing in the trial Court before any witnesses were examined, the Defendant admitted his own signature on the bond but expressly denied execution in the presence of attesting witnesses. The entry in the order-sheet, under date 2nd December 1918, is as follows:—
“Parties ready, Defendant admits to have executed the bond but contends that it was not duly attested and so it cannot take effect as a mortgage bond. Plaintiff to adduce evidence.”
Evidence was adduced by the Plaintiff but no attesting witness was examined.
The bond in suit is one which under sec. 59 of the Transfer of Property Act required attestation and on the face of it, it was duly signed by the mortgagor and attested by witnesses. It is settled law, however, that such an instrument is not duly executed and cannot operate as a mortgage or create a charge unless it be in fact signed by the mortgagor in the presence of atleast two attesting witnesses [Shamu Patter v. Abdul Kadir and Ganga Prosad Singh v. Ishri Prosad (2)].
The short point arises, not apparently covered by authority, whether the Defendant's admission amounts to “an admission of execution by himself” within, the meaning of sec. 70 of the Evidence Act.
Under Sec. 68 of the Evidence Act.
“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.”
By sec. 71, “If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.”
But by sec. 70, “The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.”
It is not suggested on the part of the Plaintiff that there was no attesting witness available. The contention is that the Defendant's admission is sufficient proof of the mortgage as against him and that the learned Subordinate Judge was wrong in holding that it was necessary to call an attesting witness or otherwise to prove attestation.
As to the cases to which reference was made in the argument the dictum in Jogendra Nath Mukhapadhaya v. Nitai Churn Bundapadhaya has not been followed. The learned Judges (Banerjee and Geidt, JJ.) seem to have been of opinion that an admission within sec. 70 of the Evidence Act would not dispense with independent proof of attestation. But the case went off on the finding of fact that the instrument had been duly attested, and in Satish Chandra Mitra v. Jogendra Nath Mahala Navis , Woodroffe, J., took occasion by way of observation, to express his disagreement with the view of the learned Judges. “That decision,” he said, “is open to this construction that even when the executant admits execution his admission is proof of execution of signing only and does not dispense with proof of attestation as against him. If this be the meaning of that judgment, I am unable to agree with it, as I think that the admission of the executant has the effect of dispensing with the proof of attestation as against him. For if the admission of execution is to be understood only in the sense of admission of signing, then there was no necessity for sec. 70 at all, regard being had to the general provisions of the Evidence Act relating to admissions. This is also indicated by the last words of sec. 70, “though it be a document required by law to be attested.”
In Nibaran Chandra Sen v. Ram Chandra , N. Chatterjea, J. and myself held, in accordance with the dictum of Woodroffe, J., that an admission of execution was sufficient proof as against the party making the admission and dispensed with the necessity for calling an attesting witness or giving any other evidence. But the admission there was an admission of execution plain and simple, capable of being construed as an admission of due execution in the presence of the attesting witnesses.
The case is different when the admission of the signature is coupled with an express denial that the document was signed in the presence of the attesting witnesses. The policy of the law makes the ceremony of attestation essential to the validity of a mortgage instrument. Where the mortgagor denies his signature it is not sufficient to prove the hand-writing. It must also be proved that he affixed his signature in the presence of the attesting witnesses.
Returning to the Evidence Act, sec. 70, I have little doubt that the words “the admission of a party to an attested document” mean the admission of a party to a document which is on the face of it an attested document. To say that they mean the admission of a party to a document which is proved or admitted to be an attested document (that is, proved or admitted independently of the admission of execution) makes the section, as Woodroffe, J., points out, meaningless or superfluous. Attestation can hardly be proved or admitted without proof or admission of the signature attested. On the other hand, the concluding words “though it be a document required by law to be attested” may be understood as referring back to sec. 68. The admission of execution by a party to an attested document is to be sufficient proof of its execution as against him and the requirement of sec. 68 that an attesting witness must be called is dispensed with. These provisions in the Evidence Act deal with the method of proof. But the force of the word “execution” has still to be considered and in my opinion no admission of execution is effectual under sec. 70 unless it amounts to an acknowledgment of the formal validity of the instrument. What the Defendant said in the present case amounts not so much to an admission of execution as a denial of execution.
In Wharton's, Law Lexicon, the execution of deeds is defined as “the signing, sealing and delivering of them by the parties as their own acts and deeds in the presence of witnesses,” and a similar explanation is given in regard to the execution of Wills.
In the Oxford Dictionary, the meaning attributed to the verb “execute” in the present connection, is, “to go through the formalities necessary to the validity of (a legal act, e.g, a bequest, agreement, mortgage, etc.). Hence to complete or give validity to (the istrument by which such act is effected) by performing what the law requires to be done as by signing, sealing, etc.
Sealing is not generally speaking necessary in India but the execution of a document must still mean something more than the mere signing by the party. It must certainly include delivery, and I think it also includes signing in the presence of witnesses, where witnesses are necessary. In sec. 71, for instance, proving execution includes proof of the necessary formalities.
It may be said that the expression used in sec. 70 is “execution by himself.” The added words “by himself” seem to me to make no difference. The word used is “execution” and not “signature.” Sec. 69 which deals with the case where no attesting witness is available, speaks of “the signature of the person executing the document.”
Where the admission of execution is unqualified it may well be equivalent to an admission of due execution or a waiver of proof of due execution within sec. 70. But the carefully guarded statement which the Defendant made in the present case does not in my opinion entitle the Plaintiff to the benefit of sec. 70. It was said that it was hard on the Plaintiff that a mere technicality should deprive him of his money. On the merits, however, the Courts below took different sides and though we have no jurisdiction to question, and I do not question, the finding of the learned Subordinate Judge, that the merits lie with the Plaintiff, the principle still is that formalities imposed by the law as barriers against perjury and fraud, Shamu Patter v. Abdul Kadir must be strictly observed. It is the Plaintiff's own fault that he did not call an attesting witness to meet the Defendant's challenge of the attestation of the document.
In the result, I would confirm the decrees of the Courts below and dismiss this appeal. As to cost I am not sure that we ought not to follow the ordinary rule but the order we make is that there should be no costs of this appeal.
Suhrawardy, J.:— I am of the same opinion. sec. 59 of the Transfer of Property Act requires that a mortgage bond must be attested. Sec. 68 of the Evidence Act provides for the mode of proof of a document required by law to be attested. sec. 70 of the Evidence Act provides an exception or proviso to the general rule of procedure laid down in sec. 68, viz., where the executant admits that a document was executed by him, i.e, executed according to law, no further proof of execution is necessary. sec. 70 of the Evidence Act thus qualifies sec. 68 of the Act but does not affect or control sec. 59 of the Transfer of Property Act which is a later enactment. Hence it follows that whatever may be the meaning, technical or ordinary, of the term ‘execution,’ the word is used in sec. 70 of the Evidence Act in the sense of due execution or execution in the way in which a particular document is required to be executed. The admission, therefore, as contemplated in sec. 70, is admission of execution in the manner in which a document required by law to be attested is to be executed.
In this view of the law, I agree with the conclusion arrived at by my learned brother and dismiss this appeal.
J.N.R
Appeal dismissed.