MOTI CHAND Vs. LALTA PRASAD

JUDGEMENT

(1.) The facts of this case are remarkably simple, though the questions which have been raised and discussed before us have covered a wide area. The plaintiffs, who brought this suit in the court of the Third Additional Subordinate Judge of Aligarh to enforce a mortgage, or rather, as they alleged, two mortgages, dated respectively the 15th of May and the 21st of July, 1909, carry on business an bankers and commission agents in the city of Benares. The defendants at or about the time carried on business as saltpetre merchants, and were, in the year 1909, obviously in considerable difficulties. Through the medium of an agent or general- attorney of the plaintiffs, one Beni Prasad Dube, it was arranged between the plaintiffs and one of the defendants, Sri Krishn Chand, that, inasmuch as a considerable sums was already due from the defendants to the plaintiffs in respect of commission and other dealings which had taken place between them, the plaintiffs, instead of pressing for payment, should render assistance to the defendants by treating the existing debt as a loan and taking security over their property. The present defendants were members of a joint Hindu family and carried on business together as such, Lalta Prasad being father and Sri Krishn Chand and Jhabbu Lal being the two sons. There was a good deal of delay in the completion of the necessary formalities to carry out the transaction, due apparently to some discussion with regard to the amount of the outstanding account 1 between the defendant and the plaintiffs at that date. This, however, is not material, because the amount of the debt was agreed, and there is in fact no dispute as to the substantial effect of the transaction which was entered into. The whole difficulty that has been raised is one of form. A document was prepared by a pleader, which was intended to be a mortgage to carry out the arrangement which had been agreed upon. It was written by a scribe of the name of Makundi Lal, and the plaintiff s general attorney Beni Prasad, according to his own account, with certain other persons who were to act as witnesses, attended at one of the defendants places of business in Farrukhabad. The father was absent. It is suggested that ho was keeping out of the way on account of the pressure of his creditors. However that may be, it is clear that he was not present on the occasion when the parties met with a view to executing the document, and it was signed only by the two sons above mentioned and by Sheobandhan Dube and Janki Das as attesting witnesses. It was also signed by his own hand by the scribe in the sense that it contained a clause in his own hand-writing stating that he had written the document on the 15th of May. And undoubtedly at one time it was suggested, and one of the grounds raised in the memorandum of appeal was, that if there was any defect in the document by reason of the absence of sufficient attestation, that was cured by the clause containing the signature of the scribe. That argument, however, was not seriously pressed; the scribe s evidence shows that he did not purport to attest and no further reference need be made to it. The document having been thus executed by the two sons, whose signatures are said to have been attested by these two men, Sheobandhan Dube and Janki Das, it appears to have been originally intended to have the document registered in accordance with law as quickly as possible. But the plaintiffs, the mortgagees, required the signature of the father, and the document was sent to him for signature and returned to the son, Sri Krishn Chand, duly signed by the father on the 31st of May, 1909, after a delay of some 13 or 14 days. What happened when the father affixed his signature does not appear, it is, however, quite clear that his signature was not attested by either of the attesting witnesses to the deed. The document, having been thus executed and registered and being at that time clearly regarded by everybody as a complete, valid and properly executed mortgage-deed in accordance with the strict provisions of the law, was discovered to contain a slip by the scribe. The agreement had been for a rate of interest at eight annas per cent, per mensem, but only eight annas per cent, per annum was provided in the interest clause. It became necessary to correct this blunder, and by consent of every body a fresh deed was entered into on the 21st of July, 1909, with this object. The terms and effect of that deed it will be necessary to consider with some care hereafter. It was duly signed by Lalta Prasad, the father, and by both his sons in the presence of two attesting witnesses. It was duly attested by Janki Das, one of the attesting witnesses to the former deed, and by Makundi Lal the scribe, and it was registered according to law on the 16th of November, 1909. Default having been made, the plaintiffs instituted this suit on the 18th of April, 1914. Substantially there was very little-contest about the merits. The main controversy turned upon the question of the attestation and the admissibility of the deed of the 15th of May, 1909. One of the defendants Jhabbu Lal put in no appearance. The other two, the father and one of the sons, admitting their signatures and, denying that the amount entered in the deed was correct, alleged that the deed had not been duly executed and that the signatures had not been attested according to law. The first court held that the document was inadmissible under Section 68 of the Evidence Act for the following reasons. At the trial it appeared that Sueobandhan Dube was dead. Janki Das was in court. He was not called. The document was one which was required by law to be attested and no attesting witness, although one was alive, was called, as required by Section 68 of the Evidence Act. He had been summoned and was present in court. The expression "called" used in the section clearly means tendered for the purpose of giving evidence. The, learned Judge therefore had no alternative but to reject the document, and we agree with the course which he took and with the reason which he gave for so doing. Very little attention, judging from the evidence and from the judgement, appears to have been paid to the supplementary or second deed, of the 2lst of July, 1909. But, relying on certain authorities which the learned Judge refers to in his judgement, he gave effect to the deed of the 15th of May, 1909, which he had rejected as inadmissible as a mortgage as evidence of a covenant to pay, and passed a personal decree against all three defendants for the amount due. Thereupon an appeal was brought to this Court by the plaintiffs, challenging the decision upon three grounds. 1. That the execution of the deed had been proved;

(2.) That the evidence of the scribe who had in fact been called was sufficient as that of an attesting witness; and

(3.) That the learned Judge had not properly weighed the evidence. 2. There was a difficulty in serving the respondents with the -notice of appeal. Ultimately substituted service was ordered by means of advertisement in the newspapers, and, whether or not they had knowledge of the proceedings, they did not in fact appear, although the order for substituted service was duly carried out, at the hearing of the appeal which was opened before my brother Piggott and myself on the 29th of March, 1917. During the discussion in the opening of the appeal it was pointed out, amongst other things, that there was some difficulty in appreciating the grounds upon which the learned Judge had given effect to the deed as a covenant to repay the money, while rejecting it as inadmissible under Section 68, and it was urged upon us with some force that if the failure of the snit resulted from the omission to call Janki Das during the trial, that was an omission which might, subject to certain penalties, be repaired without injustice to the defendants, if we were to afford an opportunity to the plaintiffs of producing him as a witness in this Court. We made an order on the 29th of March, 1917 in the following terms:---"Without discussing further the question of law raised by this appeal, we think it sufficient to say that, under the circumstances, the appellants are entitled to an opportunity of producing before this Court for examination the witness Janki Das, who should perhaps have been produced by them in the court below. Assuming that the appellants are prepared to deposit the necessary fees and expenses, we order that this case be put up on any near convenient date, and summons to issue for the attendance of the said witness, Janki Das, son of Khiali Ram, caste Mahajan, resident of muhalla Mufti Saheb, in Farrukhabad, in this Court on such date." Difficulties arose in carrying out that intention owing to the illness of Janki Das. Adjournments were applied for from time to time, which were granted in the hope that the whole thing might be settled by hearing the evidence of this witness, who might have been tendered in the court below. Unfortunately, the witness gat worse and died, and it was therefore, impossible for the appellants to call him. The case, therefore, came on for re-hearing before us in the condition in which it was, when it was originally opened before us in appeal, with the addition which we had made by the order we passed on the 29th of March, 1917. On this occasion the respondents put in an appearance, and several questions have been argued in attack upon and in support of the decision of the court below. The real question which we have to decide is whether in fact the plaintiffs, in the events which have happened, have been able to establish by legal evidence the execution in their favour of a mortgage for this debt over the property of the defendants, and whether they are entitled to an order enforcing it in this suit. Now it is abundantly clear that the loan was made, that it was obtained by the defendants offering a substantial and valuable security, that the money is still due, and that the defendants have no merits of any kind. The case is an illustration of the pitfalls which the prudent provisions of the Legislature made for the protection of ignorant and foolish persons may possess for the ordinary men of business and the use that knaves may make of them. There are in evidence, some copy of letters, dated one of the 19th of May, 1909, and two each of the 1st of June, 1109. These, if genuine, are conclusive as to one material fact in dispute, namely, the attestation of the father s signature. Due notice to produce the originals of these letters was given to the plaintiffs through the Court on the 25th of January, 1915. Beni Prasad, the general- attorney of the plaintiffs, was cross-examined with a view to explaining the absence of the originals, which were not forthcoming. He explained that after some short period it was the practice in the plaintiff s business to weed out and destroy letters, and the topic was pursued no further. Clear notice was given to the plaintiffs of the existence of these letters. They were called upon to produce them, and the defendants were entitled to use their copies. We have examined the defendants press copy letter book, in which these copies are contained. It is, relatively speaking, well kept and we are both satisfied that it is a genuine book. 3. These copy letters show three things. Firstly, that, after being written out the day before, the document of the 15th of May, 1909, was signed by the two sons and attested by Sheobandhan Dube, if not by Janki Das, but that on the 19th of May, the father had not signed it. Secondly, that registration was delayed until after the 31st of May, 1909, when the document was received back by Sri Krishn Chand from his father with the father s signature upon it, and that, if the plaintiffs had not insisted upon the father s signature, the defendants would have registered the document without it, regarding the execution as then complete, and, thirdly, that the defendants were in need of money, that they were in profound misery, that their honour was in jeopardy and that they were anxious to do all they could to complete the security.