Ayenati Shikdar vs Mohammad Esmail - 1929 Supreme(Cal) 21

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1929 Supreme(Cal) 21

MITTER, JACK
Ayenati Shikdar – Appellant
Versus
Mohammad Esmail – Respondent

JUDGMENT

Jack, J. - The plaintiff in this suit seeks to recover from the defendants the amount due on a mortgage bond. In her written statement defendant 1 says that she executed the bond and admitted execution before the Sub-Registrar understanding it to be a power of attorney in the name of the plaintiff to manage her properties. She contends that the bond was not legally attested and executed. Defendant 2 was a benamidar of the plaintiff. Defendant 3 files a written statement supporting that of defendant 1 and adding that he had purchased the properties to the knowledge of the plaintiff. The Court of first instance decreed the suit except for a deduction of a portion of the claim for interest. The appellate Court dismissed the appeal and, allowing the cross appeal on account of interest, decreed the suit in full. In this appeal it is urged that inasmuch as one of the attesting witnesses to the bond when examined, proved hostile, the remaining attesting witness who is alive should have been examined to prove the bond, and, not having examined him, the Court was not entitled to invoke the provisions of Section 71, Evidence Act, and prove the bond by other evidence.

2. Both the Court

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