The requirement of Section 68 of the Indian Evidence Act, 1872, which mandates the examination of at least one attesting witness to a document that requires attestation, is mandatory and must be strictly complied with. If the execution of a document is denied by the alleged executant, the document cannot be admitted in evidence unless the requirement of Section 68 is satisfied.

JUDGMENT:- The plaintiff in O. S. No. 29 of 1969 on the file of the Court of the Subordinate Judge of Pudukottai is the appellant herein. She instituted the suit against the respondent on a mortgage Ex. A-1 dated 16-11-1964 said to have been executed by the respondent for a sum or Rs. 8000. The plaint itself stated that the respondent had repaid four sums of Rs. 50 each on 15-4-68, 30-4-68 and 21-6-68 and 30-7-68 towards interest and the suit was filed for recovery of the balance. One of the several defences that was put forward by the respondent was that she was not aware of the execution and due attestation of the document and that she had not even seen the appellant herein. She also denied the due execution and valid attestation of the mortgage Ex. A-1. On this question admittedly no attesting witness was examined as required by Section 68 of the Indian Evidence Act, in view of the denial of execution by the respondent P. W. 2, who is the scribe of the document, was examined. Having regard to this position, the learned trial Judge has stated that the effect of Section 68 of the Indian Evidence Act, which requires the examination of at least one attesting witness to a document, which under the law requires to be attested, has been considered in Venkatasubbiah v. Subbamma, AIR 1956 Andh Pra 195 and that it has been held in that case that "the proof contemplated under Section 68 can be furnished by the scribe of the document who could speak to the execution of it and it is not essential that it should be proved only by at least one of the attesting witnesses." It is on this basis only that the learned trial Judge decreed the suit to the extent of Rupees 5,000 on his finding that the mortgage was supported by consideration only to that extent.

2. The plaintiff has filed the appeal contending that she is entitled to the entire mortgage amount due under the mortgage deed and not merely to the sum of Rs. 5,000 as held by the learned trial Judge, while the defendant has preferred a memorandum of cross-objections contending that even the decree for the sum of Rs. 5,000 ought not to have been granted by the learned Subordinate Judge.

3. I am clearly of the opinion that the conclusion of the learned Subordinate Judge on the admissibility of Ex. A.1 as a mortgage deed is erroneous. As I have pointed out already, in paragraph 2 of the written statement the respondent categorically denied the due execution and valid attestation of the document. Therefore, Section 68 of the Indian Evidence Act is immediately attracted. According to that section, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence. The section contains a proviso that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied. In this case, as I have pointed out already, the defendant specifically denied the due execution and attestation of the document and therefore the proviso does not apply and the main part of Section 68 alone applies. I am of the opinion that the requirement of that section has not been satisfied in the present case. P. W. 2 is the scribe of Ex. A.1 and he has given evidence to his having written the document. Nowhere in the course of his evidence he has stated that he was one of the attesting witnesses to the document in question. It has been held by this court as well as the Supreme Court that an attesting witness must subscribe his signature with the intention that it should be complete attestation of the document and that if the animo attestandi is not present,