Hason Ali vs Gurudas Kapali - 1928 Supreme(Cal) 471

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1928 Supreme(Cal) 471

MALLIK, CUMING
Hason Ali – Appellant
Versus
Gurudas Kapali – Respondent

JUDGMENT

Mallik, J. - This appeal arises out of a suit for recovery of money on a mortgage bond. Both the Courts below decreed the suit in full. Defendants 2, 4 ka, 4 kha, 4 gha, 4 uma have appealed to this Court.

2. There were two points taken before us on behalf of the appellants. First of all it was said that the decree was not sustainable inasmuch as the mortgage bond had not been proved in accordance with law. It appears that at the time of the trial of the suit three of the attesting witnesses were alive and it appears also that the plaintiff called one of these three witnesses and when this witness resiled the plaintiff proceeded to prove the document by other evidence. It was contended before us that as there were other attesting witnesses alive at the time it was incumbent on the plaintiff to try them before he was allowed to prove execution of the document by other evidence. I do not think there is much substance in the contention. As observed before the plaintiff did actually call one of the attesting witnesses then alive and it was only when that attesting witness resiled the plaintiff proceeded to prove the document by other evidence. This in my opinion was a full compli

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