RADHA BALLAB Vs. DEOKI NANDAN

JUDGEMENT

(1.) This appeal is the plaintiffs and arises out of a suit filed by them for recovery of money by sale of certain property said to have been mortgaged on foot of a mortgage bond dated 29 December 1921 alleged to have been executed by the first three defendants to the suit. Defendant 4 was the son of one of the executants and defendant 5 was an attaching creditor of the other defendants.

(2.) Two of the defendants, namely, defendant 3 and the attaching creditor defendant 5 alone contested the suit. They denied the execution of the bond and the payment of the consideration and defendant 3 further said that defendant 1 who was a friend of one of the plaintiffs had got the bond brought about for some motive unknown to the defendant.

(3.) The plaintiffs adduced evidence by examining one of themselves and the scribe of the bond, but they did not examine any marginal witness. The Courts below came to the conclusion that the bond in suit was not proved as a mortgage bond because the provisions of Section 68, Evidence Act, had not been complied with by calling one of the marginal witnesses. In this Court it has been contended that under the proviso added to Section 68 by the Amending Act of 1926 it was not necessary for the plaintiffs to produce an attesting witness, inasmuch as the deed was a registered one and none of the executants of the deed had denied its execution.