Case Note & Summary
The appeal arose from a civil suit on a mortgage deed dated 22-4-1958. The appellant was a guarantor who had signed the deed; the respondent was the plaintiff seeking to enforce the mortgage. The appellant had been held liable by the courts below despite no attesting witness being examined. The respondent-plaintiff filed a suit against the appellant-guarantor and another, likely the principal debtor or mortgagee. The trial court decreed the suit against the appellant, taking the view that because the appellant admitted his signature on the mortgage deed and did not specifically deny execution, proof by attesting witness was unnecessary. The High Court affirmed this reasoning. In his written statement, however, the appellant had in paragraph 11 specifically stated that he did not admit the document dated 22-4-1958. The mortgagee did not appeal against the decree passed by the two courts below. The sole question of law was whether the mortgage deed was proved in accordance with law in the absence of examination of any attesting witness. The appellant contended that a mortgage deed must be proved by at least one attesting witness and that his specific denial placed the execution in issue. The respondent and the High Court reasoned that admission of signature and absence of specific denial dispensed with the need to call an attesting witness. The Supreme Court relied on Kunwar Surendra Bahadur Singh v. Thakur Behari Singh, which held that reading Sections 58 and 59 of the Registration Act, 1908 and Sections 3 and 59 of the Transfer of Property Act, 1882 together left no escape from the conclusion that a mortgage deed is required to be proved by producing at least one attesting witness. The Supreme Court also found that the High Court's observation about absence of specific denial was incorrect because the appellant had expressly disavowed the document in paragraph 11 of the written statement. Following the Privy Council, the Court held that without production of any attesting witness, the document could not be deemed proved in accordance with law. The appeal succeeded and was allowed. The orders and decrees against the appellant-guarantor were set aside, and the suit against him was dismissed. The Court clarified that since the mortgagee had not appealed in the High Court against the decree passed by the two courts below, it had become final against him. Parties were left to bear their own costs.
Headnote
A) Evidence - Proof of Mortgage Deed - Requirement of Attesting Witness - Transfer of Property Act, 1882, Sections 3 and 59; Registration Act, 1908, Sections 58 and 59 - Appeal concerned whether mortgage deed was proved in absence of any attesting witness. Supreme Court held that a mortgage deed must be proved by producing at least one attesting witness, applying the principle that attesting witnesses must sign in presence of executant. The High Court's finding that admission of signature by the guarantor dispensed with proof was set aside because the appellant had specifically denied the document in written statement. Held that without an attesting witness, the document could not be deemed proved in accordance with law, and the suit against the guarantor was dismissed (Paras 1-4).
Issue of Consideration
Whether the mortgage deed was proved in accordance with law in absence of examination of any of the attesting witnesses.
Final Decision
Appeal allowed; orders and decrees against appellant-guarantor set aside; suit against him dismissed; decree against mortgagee who did not appeal made final; parties to bear own costs.
Law Points
- mortgage deed must be proved by at least one attesting witness
- admission of signature does not dispense with proof
- specific denial in written statement puts execution in issue
- provisions of Sections 58 and 59 of Registration Act and Sections 3 and 59 of Transfer of Property Act require attestation proof
