SUMATHI AMMA Vs. KUNJULEKSHMI AMMA
LAWS(KER)-1964-9-19
HIGH COURT OF KERALA
Decided on September 16,1964

SUMATHI AMMA Appellant
VERSUS
KUNJULEKSHMI AMMA Respondents

JUDGEMENT

- (1.) THE only point taken in this second appeal by defendants 4 to 7 (who claim to be the assigns of the mortgagee 1st defendant)against the decree for redemption they have suffered, is that the plaintiff has not proved that the sale deed, Ext. P-2 dated 23 61118 M. E. (5-2-1943 A. D.), under which she claims title to redeem, was executed by the original mortgagor, kaliamma Pillai, by whom it purports to be executed. But, Ext. P-2 is a registered document; it is not a document required by law to be attested; therefore, it does not attract S. 68 of the Evidence Act; and the proof required by S. 67 can be in any mode authorised by law. THE endorsements on the document, duly certified under S. 53 of the Travancore Registration Act, 1087, (corresponding to S. 60 of the Indian Registration Act) show that the document was presented for registration by Kaliamma Pillai who admitted execution before the Registrar and signed an endorsement to that effect, that she was identified by two witnesses who signed an endorsement in token thereof, and that she received the consideration in the presence of the Registrar and also signed an endorsement to that effect. Under sub-section (2) of S. 53 of the Travancore registration Act (corresponding to sub-section (2) of S. 60 of the Indian registration Act) which says that the certificate (which, it is not disputed, complies with the requirements of the section) shall be admissible for the purpose of proving that the facts mentioned in the endorsements referred to in s. 51 among such endorsements being the endorsement of admission of execution by the executant of the document under S. 50 (1) (a) have occurred as therein mentioned, aided as it is by the presumption in S. III Illustration (e) of the evidence Act, the certificate is evidence of admission of execution by the executant, Kaliamma Pillai, and, therefore, as against her and persons claiming under her, evidence of execution. And if as against Kaliamma Pillai, it could be proved that the sale deed was executed by her, the mortgagee defendants, who are only setting up her title and none of their own, would be bound to accept the plaintiff's title. THEre was no evidence of any kind to the contrary the bare assertion of Dw. l (the 6th defendant) who was only seven years old at the time of the document, and has no knowledge whatsoever of its execution, that it was not executed by Kaliamma Pillai is not evidence and the courts below accepted the evidence furnished by the registration certificate as sufficient proof of execution. I do not think that it can be said that in doing so they committed an error of law.
(2.) I regard the Privy Council decisions in Gangamoyi Debi v. Troiluckhya Nath Chowdhury (I. L. R. 33 Calcutta 537), Md. Ihtishan Ali v. Jamma Prasad (A. I. R. 1922 P. C. 56) and Gopal Das v. Sri Thokurji (A. I. R. 1943 P. C. 83) See also Vishwanath v. Rahibai (A. I. R. 1931 Bombay 105), pandappa v. Shivalingappa (A. I. R. 1946 Bombay 193) and Kalu v. Bapurao (A. I. R. 1950 Nagpur 6) as authority for the proposition that, in cases where S. 68 of the Evidence Act has no a application, the certificate of registration in the light of the presumption in S. 114 Illustration (e) of the Evidence Act is evidence of execution and can, in fit cases, be accepted as proof thereof and with the contrary view expressed in Salimatul-Fatima alias Bibi Mossini v. Koylashpoti Narain Singh, (I. L. R. 17 Calcutta 903), Marati Balaji v. Dattu (A. I. R. 1923 Bombay 253) and Bulakidas Hardas v. Chotu Paikan (A. I. R. 1942 Nagpur 84) neither what is said in the Privy Council decisions nor the wording of s. 60 (2) of the Registration Act lends the least support to the statement in the last mentioned case that the certificate is only corroborative and not substantive evidence; the section says that the certificate is admissible for proving certain facts which can only mean that it is substantive evidence regarding those facts I must express my respectful dissent. To the argument noticed in Ara Begam v. Depuiy Commr. , Gonds (A. I. R. 1941 Oudh 529 at 548), bulakida Hardas v. Chotu Paikan (AIR. 1942 Nagpur 84 at 85) and Ramanna v. Sambamoorthi (AIR. 1961 Andhra Pradesh 361 at 369) that, if the certificate of registration were to be accepted as proof of execution, a party who is required to prove a document would, if it is registered, be relieved of the necessity of examining any witnesses to prove it and could rest solely on the certificate, thus opening the way to fraud and fabrication, the answer is obvious. It is that the court is not bound to accept the certificate as sufficient proof, and, where better evidence is available, can insist on better evidence, drawing the presumption in Illustration (g) of S. 114 of the Evidence Act against the party who withholds this better evidence. The better evidence in the present case, I might remark, would be the evidence of the alleged executant herself who it is not disputed is alive there is no evidence to show whether the attestors or the executee or others connected with the document are alive or dead and, in the circumstances of the case, I think it would be for the defendants rather than for the plaintiff to examine her. For, if, in truth, she did not execute the document, it would obviously be in her interest to come forward and deny execution; it would be against her interest to come forward and admit execution even if that be the truth; and her evidence should have been more readily available to the defendants than to the plaintiff. With great respect I think that the attempt made in indernath Modi v. Nandram (AIR. 1957 Rajasthan 231) to distinguish the Privy council cases on the ground that those cases apply only, "where it is not possible to take recourse to the method provided in S. 67 because of the fact that the executant and the marginal witnesses are either dead or cannot be found" and that it is only in such cases that recourse can be had "to the presumption under S. 60 (2) of the Registration Act" is vitiated by the assumption that S. 67 of the Evidence Act prescribes a mode of proof and requires the executant or the "marginal witnesses" to be examined. S. 67 says nothing of the kind. It only says what facts have to be proved, and, unlike S. 68, does not prescribe any particular mode of proof. The facts required to be proved under S. 67 can be proved by any kind of evidence, and there is nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of sub-section (2) of S. 60 of the registration Act and by the presumption in Illustration (e) of S. 114 of the evidence Act, is to be excluded. It is pointed out that R. 46 (2) of the rules made under the Travancore Registration Act, which requires that the thumb impression of an executant admitting execution who is not personally known to the Registrar shall invariably be taken in the document, has not been complied with in this case. But, the operation of sub-section (2) of S. 53 does depend on such compliance but only on compliance with the requirements of the section itself. Moreover, the evidence in this case shows that Kaliamma Pillai was a leper, and, in the case of lepers, R. 48 dispenses with the taking of the thumb impression and requires only a note to be made in the register of thumb impressions (not in the document itself) explaining why the thumb impression was not taken.
(3.) IT is said that the defendants were not given sufficient opportunity to call their evidence at the trial, but, the lower appellate court has shown that there is no substance whatever in this complaint and I am completely in agreement with it. In the result I dismiss the appeal with costs.;


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