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1950 Supreme(Raj) 171
Rajasthan High Court
Nawal Kishore, C.J. and Bapna, J.
Motilal - Appellant
Versus
Bastimal - Respondents
D.B. Civil Second Appeal No. 24 of 1949
Decided On : November 13, 1950
Indernath, for Appellants; Rikhabraj, for respondent No. 1; Dashrathmal, for Respondent No. 3
Headnote:Document—Execution, proof of— Document drawn under executants instructions.Evidence Act, S. 69—Attesting witness not forthcoming—Execution proof of— Signature of executant and handwriting of attesting witness both must be proved.
Execution of a document means the signature of the executant and even if it has been drawn up under his instructions, unless there is other evidence, this by itself is not sufficient to prove execution of the document. (para 7)
In order that a document may be held to have been executed, where the attesting witness is not forthcoming, two things must be proved as mentioned in S. 69 of the Evidence Act, viz. (1) that the attestation was in the hand writing of the attesting witness and (2) that the document was signed by the executant. Neither of these alone is sufficient proof of the document. Accordingly, where there is no proof of the signature of the executant or of the hand-writing of the attesting witness, the document cannot be said to have been properly proved. (para 7)
2. The suit involves a reference to two mortgage deeds Ex.D1—A and Ex.D1—B. The plaintiff based his suit on Ex.D.1A which was executed on Bhadwa Vad 1 Samwat 1946 by Alamchand and his father in favour of Hansraj, Shrichand ancestors of the defendants for the sum of Rs. 100/-. The defendants admitted this mortgage but pleaded that there were further dealings between the parties and another mortgage Ex.D.1B was executed on Jeth Vad 15 Samwat 1980 according to which the total amount due was fixed at Rs. 480/- as per detail below:-
Rs. 301/- without interest.
Rs.179/ - with interest at -/7/9 per cent per mensem.
Rs 480/- Total
3. On Sawn Vad 8 Samwat 1992 account wen gone into and the plaintiff Alamchand executed a balance in the books of the defendants and admitted that the total amount due Rs. 763/-. that is, Rs. 301/- without interest and Rs. 462/- with interest. On the basis of this Khata, the defendants claimed as below:-
Rs. 301/-
462/- Principal
317/- Interest.
148/7 cost of improvement.
54/6 Interest on improvements.
Total 1282/13
4. The trial court decreed the suit on payment of Rs. 1503/2/6 which also included interest on the total amount. The learned District Judge accepted the appeal preferred by the plaintiff and modified the decree of the trial court by reducing the total amount due, to Rs. 100/-.
5. The learned District Judge while dealing with the appeal found that the defendants had failed to establish that the second mortgage deed i.e. Ex. D. 1B had been executed by Alamchand in their favour. He examined the entire evidence which had been produced by the defendants and came to the conclusion that it was not satisfactory. He further found that the document not having been registered was inadmissible in evidence and rejected the contention of the defendants learned counsel that he could still rely upon it by force of the doctrine of part performance. As regards the account books produced by the defendants, he found that they had not been regularly kept in the ordinary course of business. He also held that evidence to prove Alamchands signatures on the balances alleged to have been struck by him was not satisfactory. As regards improvements, he came to the conclusion that at their best, the repairs alleged to have been carried out by the defendants were ordinary repairs and the mortgagees could not recover their cost. In any case, he found that the cost of improvements had not been proved by satisfactory evidence.
6. The learned counsel for the defendants-appellants has urged in the first instance that the trial court was not justified in closing his evidence on 22nd of October 1946. It appears that this aspect of the case was presented in the court below and on 30th of July of 1949, the statements of two witnesses were recorded and thereafter, the defendants closed their evidence. The learned counsel for the appellants has submitted that on the date the evidence was closed, in the trial court, Hastimal, one of his witnesses, was to be cross-examined and that, in any case, before shutting out his evidence, the defendant himself should have been given an opportunity to enter the witness-box and support his case. The defendants evidence commenced on 21st of November 1945 and continued till 1st of September 1946. On 1st of October 1946, one of the defendants was stated to be ill while the others were absent. Accordingly, the case was adjourned to 22nd of October 1946. It appears from the orders recorded on this date that the court hours were from 12 O clock onwards and that the defendant did not appear in the court till 1-30 p.m. Still he did not bring any evidence with him nor did he urge that even if the rest of his evidence, if any, was not available, at least an opportunity should be granted to him to make his own statement. An application presented by him indeed protested against the closing of his evidence but it
