E. Suna Sheikh Davood Rowther v. N.R.M.N. Ramanathan Chettiar

1. These two appeals arise out of a suit to enforce a security bond dated 3rd August 1924 alleged to have been executed by defendants 1 to 5. The learned District Judge of Trichinopoly passed a decree for the amount claimed against all the defendants. Defendant 2 has not preferred an appeal and the decree against him has become final. Defendant 1 and defendants 3 to 5 have preferred appeals; Appeal No. 304/34 is by defendants 3 to 5 and Appeal No. 305/ 34 is by defendant 1. Defendants 1 to 4 are brothers and defendant 5 is their sister. The case of the plaintiff is that a security bond was taken by him for the purpose of securing advances made by him to defendant 1 for carrying on business wherein all the defendants were interested, and that all the defendants agreed to hypothecate the immovable properties specified in the schedule to the security bond as security for the said advances. Various defences are raised by the defendants. Defendant 1 admitted the execution of the bond, but stated that he had made two payments of Rs. 10,000 and Rs. 5,000 and endorsed the same on the last but one sheet of the bond and the plaintiff remitted the balance and there was therefore a discharge of the suit bond, that the plaintiff had torn away that sheet, substituted another for it and sued upon it, and there, fore the bond sued on was not duly executed and not validly attested and not enforceable against him. Defendants 3 and 4 stated that when they signed the bond purporting to be dated 3rd August 1924 there were no alterations or erasions and there were no attesting witnesses to the bond and therefore it was not a validly attested document. Defendant 5 denied execution of the bond and stated that she knew nothing about it. Save in regard to defendant 5, there was no specific issue as to the execution of the bond and there was a general issue raised in the case, issue 4:

Is the suit document invalid in part or in whole for all or any of the reasons mentioned in the defendants' written statement?

2. At an early stage of the case an application was made for raising a specific issue, "(1) whether the security bond was duly attested as required by law", but the application was not granted on the ground that issue 4 would cover it. It may be noticed that no attesting witness has been called to prove the document, but nevertheless the learned District Judge held that the bond was duly executed by all the defendants and the bond is not invalid for all or any of the reasons mentioned in the written statements. It is contended on behalf of defendants 3 to 5 that the document has not been validly proved according to law and no decree can be passed against them; at any rate, so far as defendant 5 is concerned, the validity of the bond has not been established. The case of defendant 5 can be easily disposed of. It is admitted that she is a pardanashin lady. It is settled by more than one decision of the Judicial Committee that if a person seeks to enforce a deed executed by a pardanashin lady, it is incumbent upon him not only to prove that the bond was executed by her but also that it was explained to her and she perfectly understood its contents and that she executed the document of her own free and independent will. The only evidence relating to the validity of the document is the evidence of the plaintiff himself who says that when it was agreed that the bond should be executed by all, he went to defendant 5 who told him that she will execute the bond. Beyond this there is not a scintilla of evidence to show that the bond which is sought to be enforced was the original bond to which she affixed her signature, and that the bond which is alleged to have been executed by her was explained to her and she understood the contents of it. So far as the evidence of the plaintiff is concerned, we think the evidence is such that we cannot act on it; and very rightly the learned District Judge would not base his conclusion in regard to the execution of the document on his evidence. In our opinion the plaintiff has failed to discharge the onus which is incumbent on him to establish the validity of the document against her. We therefore must hold that the bond has not been established to be valid so far as she is concerned. We accordingly allow the appeal with costs so. far as defendant 5 is concerned.

3. So far as defendants 3 and 4 are concerned, it is contended on behalf of the plaintiff that he is relieved of the obligation of calling any attesting witnesses to prove the document by reason of two facts, namely (1) an alleged admission of execution in the written statement, and (2) the admission of the execution of the bond in the power of attorney which was executed by them in favour of defendant 1 for the purpose of registering the bond. Taking the first point, on a perusal of the written statement it will be seen that what defendants 3 and 4 stated is this: they say that they signed the document, but at the date when they signed it there were neither alterations nor the signatures of attesting witnesses; therefore the document now sued on was not the document which they executed and it was not a duly attested document. In our opinion, in substance, the plea is a denial of execution and not an admission of execution. Reliance is placed on Section 70, Evidence Act. Section 70 runs thus:

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.

4. The execution contemplated by Section 70 is not a mere signing of the document, but a due execution or execution in accordance with what the law requires for a particular document. Section 59, T.P. Act says:

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.

5. For a mortgage of the description contemplated by Section 59 and the suit security bond comes under the description there cannot be a due execution unless there has been a signing by the mortgagor in the presence of two witnesses contemplated by the said section, and the execution can never be said to be complete unless the deed is duly attested by two witnesses. What Section 70 says is that there must be an admission of a party to the attested document. 'Attested' in that section means duly attested. So if a question of attestation is put in issue, it is incumbent upon" the plaintiff to prove that the document has been duly attested before Section 70 can be relied on. It is clear from the pronouncement of the Judicial Committee in Hira Bibi v. Ram Hari Lall (1925) 12 A.I.R. P.C. 203 that where the attestation is disputed, the plaintiff is not relieved of the obligation of calling an attesting witness Under Section 68, Evidence Act. Under Section 68, in the case of a document which is required by law to be attested, unless an attesting witness is called it shall not be received as evidence. Therefore he must call an attesting witness. It may be that on the strength of the evidence given by him he may invoke the aid of Section 70. We find that the view which we have taken was adopted in two decisions of the Calcutta High Court, one in Arjun Chandra v. Kailas Chandra (1923) 10 A.I.R. Cal 149 which has been followed by another Division Bench of which Sir Asutosh Mookerjee was a member, in Benoy Bhushan v. Dhirendra (1924) 11 A.I.R. Cal 415. The observations of a Division Bench of this High Court in Thayammal v. Muthukumaraswami Chettiar (1929) 16 A.I.R. Mad 881 indicating a contrary view have been relied on. But we find on a reference to the case that there is no discussion of the question and no reasons are given. We therefore are not inclined to follow this decision in preference to the aforesaid decisions of the Calcutta High Court with which we agree.

6. The next point relates to the admission in the power of attorney. It is an admission antecedent to the suit. In our opinion, the admission contemplated Under Section 70 is an admission made for the purpose of or having reference to the suit made either in the pleadings or during the course of the trial. From the scheme of the Evidence Act, it is clear that the Legislature contemplates a distinction between admissions made for the purpose of dispensing with proof at the end evidentiary admissions. The scope and purpose of the two classes of admissions are distinct. The one relates to relevancy and the other relates solely to proof at the trial. Sections 68 to 71 are based upon the English rules of evidence. According to the strict English rule in the case of documents required by law to be attested, it is incumbent upon the plaintiff to call the attesting witness even though execution is admitted by the party to the deed. Later, the rigour of this rule has been relaxed in certain cases, one of such cases being in the case of admissions made for the purpose of a case. The necessity for calling the attesting witnesses and the reasons for the exception have been very clearly stated in Whyman v. Garth (1853) 8 Ex 803 at page 807 by Pollock C.B. in the following terms:

The attesting witness must be called to prove the execution of a deed, for this reason that by an imperative rule of law the parties are supposed to have agreed inter se that the deed shall not be given in evidence without his being called to depose to the circumstances attending its execution. If therefore the attesting witness is not called, the deed cannot be read, because this agreement cannot be broken but any agreement may be waived by the parties to it. If then in the course of the proceedings in the cause the party to the deed admits the execution, or if by his pleadings he does not require the execution to be proved, he may be very reasonably said to have waived the agreement, and the other party, accepting the waiver, does not call the attesting witness.

7. Thus, as stated by Phipson in his book on Evidence:

The reason is not that proof by the attesting witness is the best evidence, but that he is the witness appointed or agreed upon by the parties to speak to the circumstances of its execution, and agreement which may be waived for the purposes of dispensing with proof at the trial.

8. The agreement is therefore with reference to a contemplated litigation and waiver of such an agreement can only arise after the suit is filed. It is thus clear that the English rule is that the admission must be for the purpose of and with reference to a cause, and we do not think that it was the intention of the author of the Evidence Act to depart from the English rule; there is also clear indication that he did not want to depart from it. Sir James Fitzjames Stephen, who it is well known drafted the Evidence Act, prepared the Digest of the Law of Evidence some years later and in his introduction to it he stated that he framed the Digest on the Evidence Act, and in Art. 66 of his book he clearly states that the attesting witness can be dispensed with only in cases where the admission has been made for the purpose of or having reference to the cause. In Abdul Karim v. Salimun, (1900) 27 Cal 190 this view had been taken and the same interpretation was adopted by a Bench of the Allahabad High Court in Raj Mangal Missir v. Mathura Dubain (1915) 2 A.I.R. All 383. Two decisions which have taken a contrary view have been brought to our notice, one Nageshwar Prasad v. Bachu Singh (1919) 6 A.I.R. Pat 411 and another Aung Rhi v. Ma Aung Krwa Pru (1924) 11 A.I.R. Bang 139 On a reference to those cases we find, that they state that there is nothing in Section 70, Evidence Act, to limit the admissions only to admissions for the purpose to the case; but there is no discussion of the question at all.

9. In the circumstances, we decline with respect to follow the said decisions, and we hold that an admission within Section 70 must be an admission made for the purpose of or having reference to the cause either in the pleadings or during the course of the trial. On this interpretation, the admission of execution in the power of attorney cannot be availed of for the purpose of dispensing with the citation of the attesting witness. In the view we have taken, the document must be held not to have been validly received in evidence as against defendants 3 and 4. The question is, what is the relief we should grant having regard to the circumstances of this case? Should we dismiss this suit or give the plaintiff an opportunity of examining witnesses for the purpose of proving that the document has been validly attested? As already indicated by us, except the general issue, no specific issue has been raised in the case. It would have been better if the learned Subordinate Judge before whom the application was made had raised the issue. Probably if the Subordinate Judge had himself tried the case he would have had this fact in view, but as the trial was before another Judge, the importance of this aspect of the matter has not been sufficiently kept in view. And we also think that the observations of the Division Bench of this High Court in Thayammal v. Muthukumaraswami Chettiar (1929) 16 A.I.R. Mad 881 may have induced the plaintiff's counsel to adopt the attitude that he has taken of not calling the attesting witness. In the interests of justice we think, having regard to the amount of the claim, we should give the plaintiff an opportunity of adducing further evidence in regard to this matter. We therefore frame the following issue:

Whether the security bond dated 3rd August 1924 has been duly executed by defendants 3 and 4 and validly attested as required by law.

10. We give both parties an opportunity to adduce evidence in regard to this issue. The learned District Judge is hereby required to submit his finding within two months from the date of receipt of this order and the parties will have 10 days for filing objections after receipt of the finding. We allow 1/3 of the costs of this appeal and 1/5 of the costs in the lower Court so far as defendant 5 is concerned. We allow 2/3 of the costs of appeal to defendants 3 and 4 and the costs in the Court below will be dealt with later.

11. The other appeal (Nos. 3/50, 305/34) is by defendant 1. The only substantial plea is one of discharge. The lower Court has disbelieved his evidence and found that he has not made out the case set up by him. The plaintiff is a respectable man and carries on a very large business in several places. He has produced his account books, the accuracy of which has not been impeached and no entries of payments are found therein. The learned Judge has acted on these account books and believed the testimony of the plaintiff and his witnesses. On the other hand defendant 1 has chosen to produce only the ledger and has failed to produce the day-book; and the explanation given by him is that the day-book is missing. The lower Court has rightly disbelieved his testimony and declined to act on it. The learned Counsel for defendant 1 has not been able seriously to challenge the finding of the learned District Judge. We therefore accept the finding of the learned District Judge and dismiss the appeal with costs.