The Judgment of the Court was as follows:—
Mukherjea, J.:— This appeal is on behalf of the Defendant No. 1 and it arises out of a suit commenced by the Plaintiff for enforcement of a mortgage-bond. The bond is alleged to have been executed by Defendant No. 1 and his brother, Naba Krishna, to secure an advance of Rs. 50 only. The brother subsequently died leaving the Defendant No. 1 as his sole heir. The Defendants Nos. 2 to 4 are the subsequent purchasers of the mortgage-property and the Defendant No. 5 is said to be the Plaintiff's benamdar, in whose name the mortgage bond was taken.
A number of defences were taken by Defendants Nos. 1 to 4 and their contentions in substance were that there was no due attestation of the mortgage-bond, as required by law; that there was no consideration for the same and the Defendant No. 5 was not the benamder of the Plaintiff. It was further alleged that the endorsement on the back of the bond was not a genuine endorsement and the suit was barred by limitation. The trial Court overruled all the other defences of the Defendants except the one raised on the question of attestation. It held that the mortgage-bond could not be admitted in evidence as the Plaintiff did not call even one of the attesting witnesses to prove its execution, as it was incumbent upon him to do, under the provisions of sec. 68 of the Indian Evidence Act. In this view of the case the Munsif dismissed the Plaintiff's suit. The document, it may be pointed out, purports to be attested by six attesting witnesses of whom three are admittedly dead. Of the three living witnesses, one named Gaja Sant was summoned by the Plaintiff but he did not depose. Another witness named Punchanan was summoned by the Defendants but was not examined and the remaining witness was not summoned by any of the parties.’
The Plaintiff preferred an appeal against this decree of dismissal to the lower Appellate Court and the learned District Judge relying upon the decision of this Court in the case of Hason Ali v. Gurudas Kapali (1) came to the conclusion that the Plaintiff had complied with the requirements of sec. 68 of the Indian Evidence Act, inasmuch as one of the attesting witnesses was actually summoned though he did not give evidence; and it was open, therefore, to the Plaintiff to prove execution of the document by other evidence as is provided for in sec. 71 of the Indian Evidence Act. A witness named Bir Narayan Panda who was examined in the trial Court was called by the Appellate Court as an additional witness and he proved the signatures of all the attesting witnesses. Relying on this witness the lower Appellate Court has decreed the Plaintiffs suit and it is against this decision that the present second appeal has been preferred.
The point for our determination is as to whether the view taken by the Court of Appeal below is right. Now as the mortgage-bond in suit is required by law to be attested, it is necessary, I under the provision of sec. 68 of the Indian Evidence Act, that the Plaintiff should call at least one of the attesting witnesses, if he is alive and subject to the processes of the Court and capable of giving evidence, to prove execution. The Plaintiff did certainly take out summons on one of these attesting witnesses but the witness did not appear and nothing further is known about him. The question is, whether this is enough to let in further evidence under the provision of sec. 71 of the Indian Evidence Act, as has been held by the Lower Appellate Court.
It is argued by Mr. Das, who appears on behalf of the Appellant that sec. 71 has got no application to the present case when there were two other attesting witnesses alive and capable of giving evidence and the Plaintiff did not make any attempt whatsoever to produce them in Court. This argument is supported by the opinion given by Mr. Justice Field in his commentary on the Law of Evidence and was accepted by Mr. Justice D.N Mitter, in this Court in the case of Ayenati Shikdar v. Mohammad Esmail (2). Mr. Justice Jack, however, took a different view in the same case and he was of opinion that if one of the attesting witnesses was actually produced and turned hostile, other evidence could be admitted under sec. 71 of the Indian Evidence Act, even though other attesting witnesses were available and the learned Judge relied on another decision of this Court in the case of Hason Ali v. Gurudas Kapali . I think that it is not necessary for me to discuss the propriety of this view, as in my opinion, the other circumstances proved in this case exclude the operation of sec. 71 of the Indian Evidence Act. sec. 71 of the Indian Evidence Act reads as follows: “If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.” This presupposes in my opinion that the witness is actually produced before the Court and then if he denies execution or his memory fails or if he refuses to prove or turns hostile, other evidence can be admitted to prove execution. In the case referred to above the witness was actually before the Court and afterwards turned hostile. In this case, however, the witness was not before the Court at all and no question of denying or failing to recollect the execution of the document did at all arise. The Plaintiff simply took out a summons as against this witness and nothing further was done later on. In a case like this where the attesting witnesses are not before the Court, sec. 71 of the Indian Evidence Act has, in my opinion, got no application. In such cases it is the duty of the Plaintiff to exhaust all the processes of the Court in order to compel the attendance of any one of the attesting witnesses and when the production of such witnesses is not possible either legally or physically, the Plaintiff can avail himself of the provisions of sec. 69 of the Indian Evidence Act.
I think, therefore, that the procedure followed by the Court of Appeal below is not right and the learned Judge should not have allowed Bir Narayan Panda to be examined as a witness in Court, although the Plaintiff made no endeavour whatsoever to bring any of the attesting witnesses before the trial Judge.
Mr. Sen, who appears for the Respondents, sees the difficulty in his way and he attempts to get it round by saying that the case does come within the purview of the proviso to sec. 68 of the Indian Evidence Act. In other words, his contention is, that as the execution of the document has not been specifically denied by any one of the Defendants, it is not necessary to call any attesting witness under the provision of sec. 68 of the Indian Evidence Act. I do not think that I can accept this contention as correct. It has been held by this Court in several cases, viz., the case of Ebrahim Mandal v. Akshay Konar (3) and the case of Harinath Ghose v. Nepal Chandra Rai Chowdhury (4), that the word “execution” as used in the proviso to sec. 68 of the Indian Evidence Act in the case of a mortgage-bond which under the law requires attestation, means and includes not only the signature of the executant but the whole series of acts or formalities which are necessary to give the document validity as a mortgage.
This includes attestation and as attestation was expressly denied here the Plaintiff was not exonerated from the duty of complying with the provision of sec. 68 of the Indian Evidence Act by calling an attesting witness.
This appeal, therefore, must be allowed but I think that as the Court of Appeal below was labouring under some sort of misapprehension, an opportunity should be given to the Plaintiff to produce one of the three attesting witnesses who are now alive and are said to be subject to the processes of the Court.
I accordingly send the case back to the trial Court with a direction that the learned Munsif should give the Plaintiff an opportunity of examining any of the three attesting witnesses that are capable of being produced before the Court. In case none of the attesting witnesses are produced or if the witness actually produced denies execution or fails to recollect the execution of the document, as is contemplated in sec. 71 of the Indian Evidence Act, other evidence would be admissible and the case would be decided on such other evidence as the Plaintiff may choose to adduce.
Parties will bear their own costs upto this stage; future costs do abide the result.
Latifur Rahman, J.:— I agree.
C.C