Kumaraswami Sastri, J - (1.)These appeals arise out of two suits filed on two mortgages executed by defendants 1 to 3, appellants, in favour of the plaintiff-respondent in each of the suits. The deeds were mortgage deeds without possession and they contain a personal covenant to pay the amount due on the mortgage. In each of the suits the plaintiff, after setting out the mortgage and the consideration, prayed for a decree for the amounts due. The plaintiff in Appeal No. 100 prayed for the usual mortgage decree for Rs. 38,975-8-9 with costs and further interest and the plaintiff in Appeal No. 101 for Rs. 39,515-15-8 with costs and further interest. Execution of the mortgage document was admitted by the defendants, but the defences raised were that the documents were not properly attested as required by law in that the attesting witnesses were not present when the executants executed the documents and that there was failure of consideration as regards a portion of the sums claimed, that the endorsements of payment by defendants 2 and 3 would not bind the 1 defendant so as to attract the provisions of the sections of the Limitation Act regarding acknowledgments of payment and that the personal remedy is barred as over 3 years have elapsed from the date of the mortgage documents. The Subordinate Judge overruled these objections and passed the usual mortgage decree in each of the suits and hence these appeals.
(2.)As regards the objection as to the mortgages being invalid as not Having been properly attested, the Subordinate Judge declined to accept the evidence of P.Ws. 8 and 9, the attestors of the document, who state that they were not present when the deeds were executed. He accepted the evidence on the plaintiffs side that they were present at the execution. As regards P.Ws. 8 and 9, it is clear from their evidence that they are not worthy of any credit when they say that they were not present when the documents were executed. As pointed out by the Subordinate Judge, both these witnesses were, very reluctant witnesses for the plaintiffs. They had to be brought to Court under arrest. P.W. 9 is the karnam of the village which belongs to the 1 defendant. He is practically her servant. He says he is the karnam of Chittedu which belongs to the defendants. He says the writer of the document is his brother. When asked to say why he attested the documents not executed in his presence, he began by saying that he attested because he knew the signatures of the defendants and he says that the signatures in Exhibits A and D are those of defendants 1 to 3. He says his house is quite near the house of the defendants, being only a hundred yards off. Then he turns round and says he cannot say the signatures in Ex. D-1 are those of defendants 2 and 3, because he cannot identify the signatures. The Subordinate Judge rightly discredited the evidence of this witness. The other witness P.W. 10 who attested both the deeds is the Village Munsif of a village which belongs to the defendants. He also says that the documents were not signed in his presence. He began by saying that he can identify the signatures of defendants 2 and 3 but then he says he cannot say whether the signatures in Exs. H-1 and D-1 were theirs or not and that he cannot say they are not theirs. The defendants have not ventured to go into the witness-box to deny the statements of the plaintiff and his witnesses that the documents were executed by them in the presence of attesting witnesses, nor do they deny that they received full consideration. Having regard to these circumstances I see no reason to differ from the Subordinate Judge when he holds that the documents were properly attested.
(3.)The next question is whether there was any failure of consideration. Here again the Subordinate Judge points out that there was nothing in the evidence to show that there was any failure of consideration and Mr. Lakshmanna for the defendants states that he would not press this objection.