Madras High Court
Veerappudayan And Anr. vs Muthukarappan Thevan And Ors. on 14 March, 1913
Equivalent citations: (1913)24MLJ534
JUDGMENT
or " I know " used no doubt to denote the fact of attestation by the person to whom the expression refers. We cannot say from Exhibit L. that the expression was intended to refer only to Kuppudayan and not to the writer Veerabudran also. The fact thai Veerabudran has signed his name is as already observed not without importance in deciding the question whether it was not intended to make him an attestor. It is hardly necessary to observe that the description of him as the writer of the document cannot show that he was not also an attestor. We are of opinion that we must hold on the materials avail, able to us that he signed the document as an attestor.
2. It is next urged that it is not proved that Veerabudra was present at the execution of the mortgage, and reliance has been placed on the decision of the Privy Council in Shamu Pattar v. Abdul Khadir Bavuthan (1912) I.L.R. 35 M. 607, in support of the contention that a person cannot be regarded as an attestor of a document unless he witnessed its execution. But on examining the pleadings and the judgment of the 1 District Munsif we must hold that the defendants did not raise this contention in the Munsif's Court; nor did they do so in their memorandum of appeal to the Lower Appellate Court. If they had done so, the plaintiffs might have proved that the writer was present at the execution of the mortgage especially as it is extremely likely that he was present. If the contention had been raised, the onus would no doubt have been on the plaintiffs to prove that he was present. If the contention had been raised, the onus would no doubt have been on the plaintiffs to prove that Veerabadra witnessed the execution of the document. But the defendants confined themselves to the denial of execution altogether and to the contention that Veerabadhra-though present, could not be regarded as an attestor. We must therefore decline to entertain this contention at this stage.
3. The second contention is also, in our opinion, bound to fail. It is admitted that in O. Section No 388 of 1906 there was no decree in favor of the present plaintiffs entitling them to redeem the mortgage. They were not bound to claim a right to redeem before the expiration of the period of 9 years fixed in the mortgage they had given to Karuppudayan. It is indeed doubtful whether such a claim, if made, would have been entitled to succeed. The case of Raman Nam-boodri v. Achuta Pishorodi (1911) I.L.R. 35 M. 40 is a decision in support of the plaintiff's contention that they are not barred by the judgment in O. Section No. 388 of 1906. We do not think that the fact that the 8th and 9th defendants were parties to the previous suit makes any difference. They were impleaded only because they had an interest in the mortgaged property and were therefore necessary parties to the suit. We cannot accept the contention that the court in deciding that suit, was bound to determine the rights of all persons who were parties to the suit to redeem the mortgage in question. It is further argued that as the period of nine years for which the mortgage deed in Karuppa Udayan's favor was executed had not elapsed at the time of the institution of this suit, the plaintiffs could not sustain the suit. But Karuppa Udayan did not convey his mortgage rights to the plaintiffs and the suit is not instituted by virtue of any title vested in the plaintiffs as Karuppan Udayan's representatives in interest. His mortgage was paid off and extinguished; and the basis of the plaintiff's claim is the equity of redemption vested in them. We dismiss the second appeal with costs. Time for redemption will be extended up to 31st July 1913.