LODHA, J. - (1.) -
(2.) THIS is a plaintiff's second appeal arising out of a suit for recovery of money by the sale of the mortgaged property. The suit is based on a registered mortgage deed dated 21-4-1955. The mortgagor is the debtor Bastu Singh. The plaintiff's case is that the defendants Nos. 2, 3 and 4 Ramsingh, Hanuman Singh and Ramdeo also signed the mortgage deed as sureties. The original mortgage deed has been placed on the record and marked Ex. 1. It is mentioned therein that if the amount of mortgage including all other claims of the mortgagee are not realised by the sale of the mortgaged property, the mortgagor as well as defendants Nos. 2 to 4 would be liable to pay the balance, if any. The suit was decreed against the mortgagor Bastu Singh as a simple money debt. The mortgaged property was sold through the Court after attachment. Admittedly some amount has still remained due to the mortgagee after the sale proceeds had been paid to him. Both the courts dismissed the plaintiff's suit against defendants Nos. 2 to 4 on the ground that the execution of the mortgage deed by them was not proved. Consequently the plaintiff has come in second appeal to this Court. Learned counsel for the appellant has urged that in view of sec. 60 (2) of the Indian Registration Act (1908) the mortgage deed should be presumed to have been executed by defendants Nos. 2 to 4. His contention is that the burden of issue No. 5 which pertains to the execution of the mortgage deed by the defendant Nos. 2 to 4 should not have been placed on the plaintiff. In the second place he has argued that both on account of certificate of registration as well as other circumstances appearing on the record, the lower courts ought to have held that the execution of the mortgage deed by the defendants Nos. 2 to 4 was fully proved. So far as the question of burden of proof is concerned it is important to note that no such objection was taken in any of the two lower courts. The plaintiff accepted the burden of proving the execution of the mortgage deed by the defendants Nos. 2 to 4. He also led evidence on the point and it is not open to him now to complain that the burden of proof had been wrongly placed on him. Besides that, in Premraj vs. Mishrimal (1) it was held that mere production of the registered deed is not sufficient to prove the execution of the same. The identity of the executant has to be established by oral evidence before the deed can be taken to have been proved. I am, therefore, of opinion that the contention of the learned counsel for the appellant that the burden of proof of issue No. 5 pertaining to the execution of the mortgage deed was wrongly placed on the plaintiff has no substance. It is now to be seen whether execution of the mortgage deed Ex. 1 by defendants Nos. 2 to 4 as sureties for defendant No. 1 Bastusingh has been proved? Learned counsel for the appellant has submitted that there is an endorsement of the Sub Registrar on Ex. 1 to the effect that the executants of the deed, namely, Bastu Singh, and his sureties Ram Singh, Hanuman Singh and Ramdeo appeared before him, and admitted that after having heard and understood the contents of the document they appended their signatures to it, and that all the executants had been identified before him by Rughnath & Gopal Lal. It is further submitted that there appear the signatures of all the four executants below the endorsement of the Sub-Registrar. In this connection my attention has been invited to sec. 60 (2) of the Indian Registration Act (1908) which provides that the certificate of the Registrar shall be admissible for the purpose of proving that the document has been duly registered in the manner provided by the Act, and that the facts mentioned in the endorsement have occurred as therein mentioned. In support of his contention learned counsel has relied upon Gangamoyi Debi v. Trioluckhya Nath (2), Mohanlal vs. Rasula and others (3), Dhansing Yadav vs. Badri Prasad (4), Gopaldass vs. Sri Thakurji (5), Patti Lakshmayya vs. Garlapati Tirupathamma (6), and Narayan vs. The Chamber of Commerce Ltd. , Kishangarh (7 ). He has also submitted that even though the direct evidence led by the plaintiff to prove the execution of the document by defendants Nos. 2 to 4 is not sufficient yet there is enough circumstantial evidence which clearly indicates that defendants Nos. 2 to 4 had executed the document and had also appeared before the Sub-Registrar to get the document registered. On the other hand, learned counsel for the respondent has argued that the endorsement by the Registrar under Sec. 60 of the Registration Act cannot be used as a substantive piece of evidence and the signatures of the defendants Nos. 2 to 4 must be proved by one of the modes laid down in Sec 67 of the Evidence Act. In support of his submission he has relied upon Inder Nath Modi vs. Nand Ram and others (8 ). I may first deal with the evidentiary value of the certificate of the Registering Officer under sec. 60. In Mohanlal vs. Rasula (3) it was held that evidence of due registration may itself be an evidence of the execution of document. This case came up for consideration before another Division Bench of this Court in Inder Nath Modi v. Nand Ram and others (8 ). In the subsequent case Wanchoo G. J. , speaking for the Court observed that, "it may be remembered that this mode of proof cannot take the place of proof as provided by Sec. 67 of the Evidence Act which lays down that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. " It was further observed that, "it is only where it is not possible to take recourse to the method provided in Sec. 67 because of the fact that the execution and the marginal witnesses are either dead or cannot be found that the courts have taken recourse to the presumption under Sec. 60. (2) of the Registration Act" As regards the proposition of law laid down in this connection by their Lordships of the Privy Council in Gangamoyi Debi v. Troiluckhya Nath (2) His Lordship was pleased to observe that, "that was a case of a will executed in April, 1867, and suit was brought in 1897. The original will was produced and so was an attesting witness. It was not necessary, therefore, in that case to rely on the presumption under Sec. 60 (2) of the Registration Act. The remarks of their Lordships to which we have referred above were with respect to another contention in that case, namely that the testator had not a disposing state of mind. It was in that connection that their Lordships observed that registration was a solemn Act, and every thing must be presumed to have been done duly and in order unless a fraud on the Registration Officer was shown to have been committed. " While referring to another Privy Council case Gopaldass v. Sri Thakurji (5) it was observed that, "that was a case relating to a document executed in 1881, and the suit in which the question arose was filed sometime before 1930 more than 40 years after the document had been executed. " It was held that the observation of their Lordships of the Privy Council in Gopal Dass' case that the evidence of due registration is itself some evidence of execution would apply only when evidence to prove execution in the manner provided in S. 67 of the Evidence Act is not available due to the executant or the marginal witnesses be ing dead or for some other reason. It was further observed that the presumption of Sec. 60 (2) cannot take the place of proof as required by Sec. 67 of the Evidence Act when witnesses are available to prove the document in the manner provided by the Evidence Act. In the conclusion Wanchoo C. J. , was pleased to observe, "if we may respectfully say so, the proposition of law laid down in Mohan Lal's case (1) namely, that evidence of due registration may itself be evidence of execution of document is not incorrect if the other circumstances to which we have referred in the present judgment are kept in mind by courts when using the presumption arising under Sec. 60, sub section (2) of Registration Act. " In Govind Ram vs. Abdul Wahab (9) Modi J. , observed that in Inder Nath Modi v. Nand Ram and others (8) the learned Judges were not laying down the law exhaustively on the subject nor they intended to do so, and in the circums-tances before him, namely that the executant although alive, was a blind person, and the defendant did not choose specifically to question the factum of sale, and looking to other circumstantial evidence coupled with the certificate of registration the learned Judge held that the execution of the sale deed was proved. There is yet another Bench decision of this Court on the point: Narayan vs. The Chamber of Commerce Ltd. Kishengarh (7): In this case Mehta J. , speaking for the Court observed as follows: - "consequently, the admission of the executant before the Registrar must be deemed to have been proved by the endorsement of the Registrar in view of the provisions of Ss. 59 and 60 Such being the settled law, we are not prepared to accept the contention of learned counsel for the appellants that the certificate of the sub Registrar under sec. 60 of the Registration Act cannot be considered as a substantive piece of evidence and that S. 68 of the Indian Evidence Act required independent proof that the alleged signature of the executant was in his hand writing and that mere proof of presentation of the document or its admission does not satisfy that requirement. " It was further observed that, It must be regarded as a settled law ever since the decision of their Lordships of the Privy Council in Gopaldas vs. Sri Thakurji (supra) that evidence of due registration is itself evidence of execution against the parties. " Unfortunately the earlier Bench decision of this Court: Indernath Modi vs. Nandram and others 8) was not brought to the notice of the learned Judges. Thus there are two Bench decisions of this Court. The earlier one holds that the presumption of Sec. 60 (2) cannot take the place of proof as required by Sec. 67 of the Evidence Act when witnesses are available to prove the document in the manner provided by the Evidence Act, and latter one holding that the evidence of due registration is itself evidence of due execution.
(3.) HOWEVER for the disposal of the case on hand it is not necessary for me to enter into this controversy lest I might have referred the case to a larger Bench. Even according to the view taken in Indernath Modi's case under certain circumstances presumption of sec. 60 (2) may be raised to hold that the document was duly executed and that the certificate constitutes some evidence. It is, therefore, to be seen whether any such circumstantial evidence has been placed on the record in the present case, which may lead to the inference that the document in question was duly executed by defendants Nos. 2 to 4. The scribe of the document PW-1 Jugal Kishore has stated that he scribed Ex. 1 at the request of the defendants among whom defendant No. 1 Bastu Singh was the debtor and the defendants Nos. 2 to 4 were the sureties. He further states that the defendants Nos. 2 to 4 did not put their signatures on the document in his presence, but they were present, when the debtor Bastu Singh signed the document and made an endorsement admitting the contents thereof. P. W. 2 Yusuf Ali one of the attesting witnesses to the document states that he had attested the document at the request of all the defendants but that the defendants had not signed the document in his presence. In the course of cross examination he stated that he did not know any of the defendants nor he could identify them. The other attesting witness Samsuddin (P. W. 5) has deposed that among the executants of the document he knew Ramsingh only. He further stated that Jugal Kishore brought Ex. 1 to him and asked him to attest it, and that he attested the same, but he did not ask any of the executants as to what for his attestation was being obtained? He has further deposed that he had wrongly mentioned in his attestation that he had attested the document at the instance of the defendants as he had attested the document at the request of the scribe Jugal Kishore, though he admits that he should not have done so, Thus neither the scribe nor the attesting witnesses proved the signatures of the defendants Nos. 2 to 4 on the mortgage deed Ex. 1, as it appears, they wanted to help the defendants. It was, therefore, the bounden duty of the plaintiff to have got the scribe as well as the attesting witness Yusuf Ali declared hostile, and the plaintiff should have sought permission to cross-examine them, but it was not done. The plaintiff could have examined some other evidence also of persons acquainted with the handwriting of these defendants, but that too as not done. Even the plaintiff himself did not come in the witness-box to prove the signature of these defendants on the mortgage deed Ex. 1. The explanation given by the learned counsel for the appellant is that the plaintiff thought that he would appear after the defendants' evidence is over and would make a statement on all the issues. It is submitted that when the plaintiff appeared in evidence after the defendants' evidence was over and wanted to prove the signatures of defendants Nos. 2 to 4 on Ex 1 he was not allowed to do so as his evidence on issue No. 5 the burden of which reased upon him had already been closed. I do not think any just objection can be taken to the refusal of the trial court to allow the plaintiff to make any statement on issue No. 5 when he appeared as a witness after the defendants' evidence on all the issues was over. Thus there is no doubt that the plaintiff was grossly negligent in proving the signatures of defendants Nos. 2 to 4 on Ex. 1. However, he has succeeded in establishing that the document was scribed at the request of all the defendants and that the attesting witnesses had also attested the document at their request. It further appears from the evidence of P. W. 3 Rughnath Singh that he had identified defendant Ramsingh besides Bastu Singh, the main debtor, before the Registrar. On the other hand defendant Bastusingh has appeared as D. W. 1 and has stated that neither he nor defendants Nos. 2 to 4 signed the mortgage deed. He has also denied the endorsement C to D made in his own hand on Ex. 1. The endorsement reads as follows: - "executed by Bastu Singh the main debtor and Ramsingh, Hanumansingh sons of Bhoor Singh Rajput and Ramdeo son of Siruji Rajput, residents of Bikaner. The above contents are correct in lieu thereof. Signed Bastu Singh, Main Debtor No. 1. " It is important to note that P. W. 1 Jugal Kishore, the scribe of the document has stated that this endorsement was made by Bastu Singh in his presence. Just below this endorsement are the signatures of defendants Nos 2 and 4 regarding which Jugal Kishore has said that these signatures of defendants Nos 2 to 4 were not made in his presence, but defendants Nos. 2 to 4 were present, when the above cited endorsement was made by Bastu Singh. It is remarkable that the attestations of Samsuddin and Yusuf Ali appear below the signatures of defendants Nos. 2 to 4 yet the attesting witnesses have deposed that they were neither present when defendants Nos. 2 to 4 put their signatures, nor did they receive any acknowledgement from them of the signatures being theirs It is also noteworthy that in the attestation of these witnesses there is specific mention that the attestation had been made not only at the request of Bastu Singh, the main debtor, but also at the request of the sureties - defendants Nos. 2 to 4, D. W. 2 Ram Singh D. W. 3 Hanuman Singh and D. W. 4 Ramdeo have denied their signatures on the mortgage deed Ex 1 but both Ram Singh and Hanuman Singh, who are real brothers have admitted that Bastu Singh is their first cousin. That is all the evidence on the point led by the parties. In the light of the aforesaid oral evidence led by the parties, it is to be determined whether a presumption should be drawn, in the circumstances of the case that the contents of the endorsement by the registering authority are true and consequently it may be further presumed that the deed was executed by defendants Nos 2 to 4 also. It is not disputed that the endorsement of the Sub-Registrar may constitute some evidence even for the purpose of proving the execution of the document Mention has been made in clear and specific terms in this endorsement that the defendants Nos. 1 to 4 appeared before the Sub-Registrar and admitted before him that they had put their signatures to the document after understanding the contents thereof. There is no suggestion that any fraud was perpetrated on the Registering Authority and fictitious persons were produced before the Registering Authority to get a fictitious deed registered. ;