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SUPREME COURT OF INDIA
(BEFORE R.M. SAHAI AND B.L. HANSARIA, JJ.)
THAKKAR VRAJLAL BHIMJEE
Versus
THAKKAR JAMNADAS VALJEE AND ANOTHER
Civil Appeal No. 837 of 1974, decided on May 11, 1994
Mortgage Deed - Proof of Execution - The court held that the mortgage deed was required to be proved by producing at least one of the attesting witnesses, as per the provisions of Sections 58 and 59 of the Registration Act and Sections 3 and 59 of the Transfer of Property Act. The judgment of the High Court was not upheld due to the absence of production of any attesting witness, and the appeal succeeded resulting in the dismissal of the suit against the appellant-guarantor.
Fact of the Case:
The appellant, a guarantor, contested the proof of the mortgage deed, arguing that it was not proved in accordance with the law due to the absence of examination of any attesting witnesses.
Finding of the Court:
The High Court's decision was not upheld as the mortgage deed was required to be proved by producing at least one of the attesting witnesses, and the appellant's specific denial in the written statement was considered. The appeal succeeded, and the suit against the appellant-guarantor was dismissed.
Issues: Proof of mortgage deed in accordance with the law, necessity of examining attesting witnesses, specific denial by the appellant in the written statement.
Ratio Decidendi: The mortgage deed was required to be proved by producing at least one of the attesting witnesses, and the specific denial by the appellant in the written statement was considered.
Final Decision: The appeal succeeded, and the order and decree of the courts below against the appellant-guarantor were set aside, resulting in the dismissal of the suit against him.
ORDER
1. The only question of law that arises for consideration in this appeal is whether the mortgage deed was proved in accordance with law in absence of examination of any of the attesting witnesses.
2. The High Court held that since the appellant, who was a guarantor, having admitted his signature on the mortgage deed and he having not specifically denied in the written statement the execution of the document it was not necessary for the respondent-plaintiff to examine any attesting witness to prove the execution of the mortgage deed.
3. In Kunwar Surendra Bahadur Singh v. Thakur Behari Singh {AIR 1939 PC 117}, it has been held that one of the essentials of mortgage deed is that each of the attesting witnesses must have signed the document in the presence of the executant. The Court held that if the provisions of Sections 58 and 59 of the Registration Act and Sections 3 and 59 of the Transfer of Property Act are read together, there was no escape from the conclusion that a mortgage deed was required to be proved by producing at least one of the attesting witnesses. In view of this decision the judgment of the High Court cannot be upheld. The observation of the High Court that there was no specific denial by the appellant in his written statement also does not appear to be correct as the appellant in paragraph 11 clearly stated that he did not admit the document dated 22-4-1958. There was thus a specific denial and as held by the Privy Council in absence of production of any attesting witness the document could not be deemed to have been proved in accordance with law.
4. In the result, this appeal succeeds and is allowed. The order and decree of the courts below against the appellant-guarantor is set aside and the suit against him shall stand dismissed. We may make it clear that the mortgagee having not appealed in the High Court against the decree passed by the two courts below, it has become final against him. Parties shall bear their own costs.
For Citation : (1994) 4 SCC 723
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