RAMANATHA SASTRIGAL Vs. ALAGAPPA CHETTIAR AND ORS.

JUDGEMENT

(1.) THE plaintiff appellant instituted the suit out of which this appeal arises as assignee of a simple mortgage dated 12th February, 1937, evidenced by Exhibit A -1 executed by the 1st defendant's deceased father in favour of the plaintiff's aunt for Rs. 300 with interest at 6 per cent, per annum and assigned over to the plaintiff by his aunt under a deed of assignment dated 19th April, 1942, Exhibit A -2. The contesting defendant is the 2nd defendant, who is a purchaser of the suit property in execution of a simple money decree obtained by his father against the 1st defendant's father in O.S. No. 496 of 1933 on the file of the Chief Court, Puddukottai. He attacked the truth and validity of the suit mortgage and denied it was supported by consideration or that it was duly attested according to law or otherwise binding upon him and pointed out that the same was brought about in the following circumstances. In execution of the money decree obtained by his father in O.S. No. 496 of 1933, on 30th October, 1933 and 20th November, 1933, his father applied for attachment of the suit hypotheca and also applied to the Registrar's office for encumbrance certificate, obtained it arid brought the suit properties to sale and purchased them himself. After his father's death the 2nd defendant obtained delivery of possession through Court on 25th October, 1938. In the encumbrance certificate obtained by his father the existence of the mortgage was not disclosed, though he claimed to have made a search up to 13th February, 1937 or 14th February, 1937. The 2nd defendant alleged that knowing that his father applied for encumbrance certificate, the 1st defendant's father, the judgment -debtor, and the plaintiff in collusion brought about the suit mortgage fraudulently, nominally and speculatively in favour of the plaintiff's aunt with a view to defraud. The trial Court found against the 2nd defendant's contention and granted a decree. In appeal, the learned Subordinate Judge of Pudukottai found that there was no proof of the proper execution and attestation of the suit mortgage deed and that therefore it could not be used in evidence and also found that the suit mortgage was a sham and fraudulent document brought into existence to defraud the 2nd defendant's father's decree debt.

(2.) AS regards the due execution and attestation of the mortgage deed, the lower appellate Court observed that since the attestation has been specifically denied by the 2nd defendant, it was incumbent upon the plaintiff to prove execution by calling at least one attesting witness, if such a witness be alive and subject to the process of the Court and capable of giving evidence, under Section 68 of the Indian Evidence Act. The plaintiff who was examined as P.W. 2 stated that he had no knowledge of the mortgage document before its assignment under Exhibit A -2. The executant of the mortgage deed who is also the writer of the document is dead. None of the two attestors were called to prove execution of the document and they were not shown to be not alive. The Sub -Registrar who registered the document was examined as P.W. 1 who stated that he registered the suit hypothecation bond and had known Gopala Ayyar, the executant, personally.

(3.) THE identical question came up for consideration in S.A. No. 1548 of 1950 and in my judgment in that appeal I referred to the conflict of opinion between the Madras and Allahabad High Courts. It is not, however, necessary to examine the question further, as in this case there were no identifying witnesses before the Sub -Registrar at the time of the registration, the document having been registered by the Sub -Registrar, whose endorsement is that the executant Gopala Ayyar was known to him and that therefore he dispensed with the attestation of identifying witnesses. The execution of the document not having been proved and as the execution has been denied, the view taken by the lower appellate Court that it cannot be admitted in evidence is correct.