KAN SINGH, J. - (1.) THIS is a plaintiffs' appeal directed against the judgment and decree of the learned Additional District Judge, Sirohi dated 28. 4. 69 dismissing the plaintiffs' suit for recovery of money on the foot of a mortgage. It raises the question about the validity of the attestation on the mortgage deed as also regarding the mode of proving the execution of the mortgage deed.
(2.) PLAINTIFF Nos. 1 and 2 were father and son respectively. Deceased Pratap Chand was appellant Tara Chand's father. According to the plaintiffs' defendant No. 1 Kesrimal acting for himself and for and on behalf of his minor sons defendants Nos. 2 and 5 executed a mortgage deed for a sum of Rs. 12,000/- on 23-7-54 in favour of the plaintiffs Nos. 1 and 2 and Tara Chand's father Pratap Chand. The mortgage deed was not registered the same day. According to it, a house and a shop described in para 1 (b) of the plaint were mortgaged and the possession of the mortgaged property was handed over to the mortgagees and the mortgagors executed a rent not the same day agreeing to pay Rs. 60/- per month as rent for the property. It does not appear that there was any stipulation to pay interest. However, as the rent fell in arrears after sometime the plaintiffs brought a suit against the mortgagors-tenants for arrears of rent and eviction in the court of Civil Judge, Sirohi. On 9-12-58 a decree was passed in plaintiffs' favour for an amount of Rs. 2144/- in that suit. In execution of the decree the plaintiffs got attached to the equity of redemption in the aforesaid property and that property was put to sale. Javerchand deceased had purchased the property. As Javerchand had died, defendants No. 6 and 7, who were his brothers were impleaded in place of Javerchand. In the present suit the plaintiffs prayed for Rs. 12000/- and also prayed that the mortgage property be put to sale and further if the mortgage amount remained unpaid a personal decree be passed against the defendants. As against defendants Nos. 6 and 7 it was alleged that they had purchased the property subject to mortgage and with the full knowledge of the plaintiffs' rights and, therefore, they would be deemed to have stepped into the shoes of the mortgagors and were liable to the same extent as the mortgagors. Defendant No. 1 Kesrimal did not appear to contest the suit and the proceedings remained ex parte against him. Defendants Nos. 2 to 5 however contested the suit. They did not admit the execution of the mortgage by their father and pleaded in the alternative that even if that be taken to have been executed, they were not liable for it. They also denied that the possession of the suit property was handed over to the plaintiffs. Some other pleas were also raised by them. The defendants Nos. 6 and 7 also contested the suit. They took the position that the mortgage was invalid for want of proper attestation. They averred that the endorsements of the so-called attesting witnesses appeared above the signature of the executant Kesrimal and as such this was not a valid attestation. The learned Additional District Judge framed the following issues : " (1) Whether the plaintiffs are the legal heirs of Pratapchand deceased? P. (2) Whether defendant No. 1 had executed a mortgage deed of the suit property for Rs. 12,000/ on 23-7-54 in favour of plaintiffs Nos. 1 and 2 and deceased Pratapchand in his own capacity of the manager of joint Hindu family and had handed over possession of the mortgage security and got the deed registered on the same day? P. (3) Whether the defendant No. 1 in his own capacity as well as in the joint Hindu family executed a rent note in favour of the plaintiffs Nos. 1 and 2 and deceased Pratapchand stipulating to pay rent Rs. 60/- p. m. on 23-7-54? P. (4) Whether a decree for arrears of rent and eviction was passed in civil suit No. 38/58 by the Civil Judge, Sirohi against defendants Nos. 1 to 5? P. (5) Whether in execution of that decree only the rights of the mortgagor were sold in execution case No. 79/60 and the said mortgage was duly notified in sale proclamation ? P. . (6) Whether defendants Nos. 6 and 7 are legal heirs of deceased Jevenchand ? P. (7) Whether defendants Nos. 6 and 7 are also liable for the payment of the mortgage money amounting to Rs. 12000/- ? P. (8) Whether the plaintiffs' suit is time barred ? D. (9) Whether the plaintiffs could not bring this suit without obtaining letters of administration and succession certificate? D. (10) Whether the mortgage is without consideration? D. (11) What relief ?" On the side of the plaintiffs six witnesses were examined. P. W. 4 was the plaintiff Tarachand. He stated that the mortgage deed Ex. 1 was executed by Kesrimal as Karta of the family in his favour. It was scribed by Mohanraj P. W. 1 According to Tarachand, Chhaganlal was the first attesting witness to make the attestation & then Kesrimal signed the document. However, as no other person was present there, the plaintiff and Kesrimal went to the office of Shri Pranraj Advocate. There they came across one Achaldas who made the second attestation at the behest of Kesrimal. P. W. 1 Mohanraj was the scribe of the document Ex. 1. He stated that he had written out Ex. 1 as desired by Kesrimal who had his signature A to B on the document in his presence. P. W. 2 Pukhraj was the brother of Achaldas and as Achaldas had died before the institution of the suit, Pukhraj was called to depose that the writing P to Q on the document was that of his brother Achaldas. P. W. 3 was Shri Durga Chand, the Sub-Registrar, who had registered the document Ex. 1 on being presented by Kesrimal. He stated that the endorsement M to N on the document Ex. 1 was in his hand. Kesrimal was asked by him about the execution and he admitted to have signed the document at A to B. Then as the witness did not know Kesrimal he asked him to produce an identifying witness. Accordingly, Kesrimal brought P. W. 6 Shri Parasmal Advocate who identified Kesrimal. Kesrimal then signed the document in his presence at Y to Z. There is some confusion about the making of signatures or attestation. As already noticed P to Q, according to P. W. 2 Pukhraj were the writing of his brother Achaldas, whereas according to Shri Durga Chand it was at P to Q that Kesrimal had put his signatures. He further stated that he had put his own signatures Y to Z in the presence of Kesrimal and Parasmal. P. W. 5 Valchand stated that the suit house had been auctioned and he was one of the Motbirs called by the Amin. He stated that before Javerchand gave his bid he read the sale proclamation in his presence. P. W. 6 Shri Parasmal stated about his identifying Kesrimal in the presence of the Sub-Registrar. The defendants had not produced any evidence in rebuttal.
(3.) THE learned Additional District Judge held (1) that the mortage deed Ex, 1 was scribed by Kesrimal, (2) that it was with consideration, (3) that only one attestation and that too by the Sub-Registrar Shri Durga Chand had been established. THE learned Judge thought that Shri Durga Chand could be treated as an attesting witness in the circumstances. THE learned Judge however did not treat the attestations purporting to be by Chhaganlal and Achaldas respectively to be valid. Consequently he held that the document Ex. 1 cannot be treated as a valid mortgage as could be enforced against the defendant. THE learned Judge further held on the basis of the rent note Ex. D/2 produced by P. W. 4 Tarachand, the plaintiff, that the sons of the mortgagors were bound by the mortgage deed. In the result, the learned Judge dismissed the suit, but left the parties to bear their own costs. In assailing the judgment and decree of the learned trial Judge, learned counsel for the appellants contended that the attestation of Chlaaganlal and Achaldas on the mortgage deed Ex. 1 were valid and further the endorsement made by the Sub-Registrar as well as that by the identifying witness P. W. 6 Parasmal could also be regarded as valid attestation in the circumstances. Learned counsel further contended that one attesting witness Durgachand has been examined by the plaintiffs, but even that too was not required as in accordance with the proviso to sec. 68 of the Evidence Act the defendants had not specifically denied the execution of the mortgage deed by Kesrimal. Learned counsel maintained that Chhaganlal was summoned though he did not appear and that amounted to his being called within the meaning of sec. 68 of the Evidence Act and since the witness had not appeared, the document could be proved by other evidence. In the alternative, learned counsel for the appellants submitted that even if the mortgage deed Ex. 1 is held to be invalid for want proper attestation it could nevertheless be regarded as a valid charge under sec. 100 of the Transfer of Property Act. Learned counsel for the respondents countered the submissions of learned counsel for the appellant and tried to support the judgment of the trial court. ;