Patna High Court
Lakshman Sahu vs Gokhul Maharana on 1 December, 1921
Equivalent citations: 70IND. CAS.298, AIR 1922 PATNA 415
JUDGMENT Das, J.
1. This appeal arises out of a suit instituted by the appellant to enforce a mortgage-bond. There were two attesting witnesses to the mortgage-bond. One of them is admittedly dead but the other was called by the plaintiff to prove that he did attest the mortgage-bond. The attesting witness, who was called by the plaintiff, stated in Court that he attached his signature to the document without knowing what it was and without seeing the executants sign it and that he did so at the request of the plaintiff who was his friend. The Court of first instance thought that he was a witness unworthy of credit, and, relying upon the evidence of the plaintiff and the scribe, gave a decree to the plaintiff substantially as claimed by him. The lower Appellate Court has differed from the view which was taken by the Court of first instance The lower Appellate Court; however, admits that the memory of this witness in all probability would, be quite blank regarding the circumstances after the expiry of 13 years from the date of the execution of the mortgage bond. I regard the finding of the lower Appellate Court on this point as a finding that the attesting witness who was called by, the plaintiff denied or did not recollect the execution of the document.
2. If that be so, then Section 71 of the Evidence Act provides that the execution of the document must be proved by other evidence. The learned Vakil, who has argued this case on behalf of the respondent, urges before us that the proof of execution will not help the plaintiff : it must be proved that the document was properly attested. In my opinion, so far as Section 71 of the Evidence Act is concerned, execution includes attestation, for Section 71 only operates if the attesting witness denies or does not recollect the execution of the document. We have, therefore, to see whether the plaintiff has proved the due execution of the document. Now, on this point again the learned Judge says that there is again a strong probability that neither the plaintiff nor the scribe can in fact remember the details after so long a lapse of time. In my opinion the evidence of the plaintiff and the scribe should be re-considered by the learned District Judge. The suit is on a mortgage and, as I read the judgments of the Courts below, there is no doubt that the money was advanced and the document was executed at any rate by the defendants; and, as the learned District Judge did not examine the evidence of the plaintiff and the scribe from the point of view which I have suggested in my judgment, I think it only fair that their evidence should be re-considered by the learned District Judge.
3. I would allow the appeal, set aside the judgment and decree of the Court below and remand the case to that Court for decision. Costs will abide the result and will be disposed of by the learned District Judge.
Adami, J.
4. I agree.