- (1.) THIS is a defendants' second appeal and arises out of a shop redemption on payment of Rs. 100/-.
(2.) THE suit involves a reference to two mortgage deeds Ex. D1 - A and Ex. D1 - B. THE plaintiff based his suit on Ex. D. 1a which was executed on Bhadwa Vad 1 Samwat 1946 by Alamchand and his father in favour of Hansraj, Shrichand ancestors of the defendants for the sum of Rs. 100/ -. THE defendants admitted this mortgage but pleaded that there were further dealings between the parties and another mortgage Ex. D. 1b was executed on Jeth Vad 15 Samwat 1980 according to which the total amount due was fixed at Rs. 480/- as per detail below:- Rs. 301/- without interest. Rs. 179/ - with interest at -/7/9 per cent per mensem. Rs 480/- Total On Sawn Vad 8 Samwat 1992 account wen gone into and the plaintiff Alamchand executed a balance in the books of 'the defendants and admitted that the total amount due Rs. 763/ -. that is, Rs. 301/- without interest and Rs. 462/- with interest. On the basis of this Khata, the defendants claimed as below:- Rs. 301/- 462/- Principal 317/- Interest. 148/7 cost of improvement. 54/6 Interest on improvements. Total 1282/13 The trial court decreed the suit on payment of Rs. 1503/2/6 which also included interest on the total amount. The learned District Judge accepted the appeal preferred by the plaintiff and modified the decree of the trial court by reducing the total amount due, to Rs. 100/ -. The learned District Judge while dealing with the appeal found that the defendants had failed to establish that the second mortgage deed i. e. Ex. D. 1b had been executed by Alamchand in their favour. He examined the entire evidence which had been produced by the defendants and came to the conclusion that it was not satisfactory. He further found that the document not having been registered was inadmissible in evidence and rejected the contention of the defendants' learned counsel that he could still rely upon it by force of the doctrine of part performance. As regards the account books produced by the defendants, he found that they had not been regularly kept in the ordinary course of business. He also held that evidence to prove Alamchand's signatures on the balances alleged to have been struck by him was not satisfactory. As regards improvements, he came to the conclusion that at their best, the repairs alleged to have been carried out by the defendants were ordinary repairs and the mortgagees could not recover their cost. In any case, he found that the cost of improvements had not been proved by satisfactory evidence. The learned counsel for the defendants-appellants has urged in the first instance that the trial court was not justified in closing his evidence on 22nd of October 1946. It appears that this aspect of the case was presented in the court below and on 30th of July of 1949, the statements of two witnesses were recorded and thereafter, the defendants closed their evidence. The learned counsel for the appellants has submitted that on the date the evidence was closed, in the trial court, Hastimal, one of his witnesses, was to be cross-examined and that, in any case, before shutting out his evidence, the defendant himself should have been given an opportunity to enter the witness-box and support his case. The defendants' evidence commenced on 21st of November 1945 and continued till 1st of September 1946. On 1st of October 1946, one of the defendants was stated to be ill while the others were absent. Accordingly, the case was adjourned to 22nd of October 1946. It appears from the orders recorded on this date that the court hours were from 12 O' clock onwards and that the defendant did not appear in the court till 1-30 p. m. Still he did not bring any evidence with him nor did he urge that even if the rest of his evidence, if any, was not available, at least an opportunity should be granted to him to make his own statement. An application presented by him indeed protested against the closing of his evidence but it was not urged that in any case the court should have permitted him to make his own statement. The learned counsel for the appellants argued that the case was taken up at the house of the Judicial Officer without notice to the defendants and accordingly, an opportunity should have been granted to them to produce their witnesses and also one of them to make his own statement. From the application preferred by the defendant and referred to above, it appears that the defendant was present in court and continued to wait there but that is all. He did not bring his account-books or his witnesses and, therefore, it was immaterial whether the case was taken up in court or at the house of the Judicial Officer. Further, as stated above, the defendant never offered to make his own statement. Not only this, when the lower appellate court showed its willingness to allow the defendants to produce his evidence in that court on 4th of May 1949, he only prayed that the receipt for the return of the general power of attorney which was contained in the register of the Registration Department, may be summoned for the purpose of comparing the signature of Alamchand. In this application also he did not urge that after the signature had been compared and before the evidence was closed again, an opportunity should be granted to him to make his own statement. In the circumstances, we are of the view that the defendant is not entitled to further opportunity being granted to him for this purpose and accordingly, the case cannot be re-opened in view of what has been stated above. The next contention raised by the learned counsel for the appellants related to the execution of Ex. D. 1b, the second mortgage deed of Jeth Vad Amavas Samwat 1980. The burden of proving execution of this document lay upon the defendants and out of the 12 witnesses produced by them, four witnesses, namely, D. W. 1 Bhikamchand, D. W. 4 Harakh-chand, D. W. 5 Anantraj and D. W. II Amolakhchand related to this particular question. The learned District Judge considered the statements of Bhikamchand, Harakhchand and Anantraj and discussed them in detail and together with this evidence also considered the fact that none of the defendants appeared in the witness-box. The learned counsel has made no comment so far as the discussion of the statements of D. W. 4 and D. W. 5 is concerned. He has only urged that so far as D. W. 1 Bhikamchand's statement is concerned, there was no reason why it should not have been relied upon. He submitted that the entire document had been written by Bhikamchand at the instance of Alamchand. That no doubt is true. But the important aspect of the statement which was taken into consideration by the learned District Judge was that while he was not a disinterested witness, as he was a close relation of the defendant, Alamchand had not signed in his presence, nor was the witness able to identify Alamchand's signature on the document. The learned counsel urged that the mere fact that Bhikamchand had written the document under the instructions of Alamchand should be taken to mean that the document had been executed by him. We are, however, unable to accede to this contention. Execution of a document means the signature of the executant and even if it has been drawn up under his ins-tructions,unless there is other evidence this by itself is not sufficient to prove execution of the document. The only other point urged by the learned counsel was that the learned District Judge had not referred to the statement of D. W. 11 Amolakhchand who had identified the signature of the attesting witness Motilal. The latter could not be produced as he was stated to be out of Marwar. In order that a document may be held to have been executed, where the attesting witness is not forthcoming, two things must be proved as mentioned in section 69 of the Evidence Act, viz. (1) that the attestation was in the handwriting of the attesting witness and (2) that the document was signed by the executant. Neither of these alone is sufficient proof of the document. Accordingly, where there is no proof of the signature of the executant or of the handwriting of the attesting witness, the document cannot be said to have been properly proved. In other words, mere proof of attestation being in the handwriting of the attesting witness is no proof of the document having been signed by the executant. In the circumstances, the statement of D. W. 11 Amolakhchand does not take the case any further. As it is, the finding of the learned District Judge is one of fact and the learned counsel for the appellants has not succeeded in showing that it was not justified. Lastly, the learned counsel contended that the view taken by the learned District Judge regarding the cost of improvements was not correct. It is true that the learned District Judge has not discussed the evidence which has been produced in connection with it and all this evidence has been placed before us by the learned counsel. While we agree with the learned District Judge on the whole that the evidence does not establish the cost of improvements carried out in the shop during the period of the mortgage, there is, however, something to be said for the case made out by the defendants with regard to this question. In the first instance, it does stand to reason that during the long period of over fifty years, some repairs must indeed have been carried out and during this period the defendants must have incurred some expense. The burden of proving, however, of what this expense was lay heavily upon the defendant and, in our opinion, beyond what is stated below, it has not been discharged. The plaintiff P. W. 1, however, admitted that the defendant had, till the date he was making the statement, broken a wall and also got the shop plastered with lime and must have spent about Rs. 20/- to Rs. 25/ -. This is one factor. The other arises out of the statement of D. W. 6 Surajmal supported by Khata C. 7/12 and Rokar dated Mah Vad 5 Samwat 1999. The Khata and the Rokar, however, have not been proved. But it does appear from the statement of the witness that he had prepared two pairs of doors for two shops, one of these belonged to the defendant himself and the other was the shop in dispute and that the price of one pair of doors was Rs. 50/- to Rs. 60/ -. This door was admittedly fixed in the shop while the suit was pending inasmuch as the plaintiff had filed an application in court and prayed that the defendant should be restrained by means of an injunction from making improvements in the property during the pendency of the litigation. It is thus clear from the above that a new door was fixed in the shop at a cost of not less than Rs. 50/ -. If the plaintiff wishes to retain this door, it is obvious, he must pay for it. There is nothing on the record to show that the value of the door was not at least Rs. 50/- The learned counsel for the respondents, Mr. Rikhabraj, has stated that the sum of Rs. 50/- may be allowed to the defendants on account of the costs of this door. The result is that this appeal succeeds partially and is hereby accepted as such and the decree passed by the lower appellate court modified by the amount being increased by Rs. 50/ plus Rs. 25/-, that is, Rs. 75/ -. Costs in this Court will be borne by the parties according to their success and failure. The plaintiff-respondent shall deposit the sum of Rs. 75/-included in the decree passed by this court on or before the 13th of December 1950. . ;