The main legal point established in the judgment is the requirement of due execution and attestation for a mortgage under Section 59 of the T.P. Act, and the obligation to call attesting witnesses when attestation is disputed, as well as the scope of admissions under Section 70 of the Evidence Act.

Venkataramana Rao, J.

1. These two appeals arise out of a suit to enforce a security bond dated 3rd August 1924 alleged to have been executed by defendants 1 to 5. The learned District Judge of Trichinopoly passed a decree for the amount claimed against all the defendants. Defendant 2 has not preferred an appeal and the decree against him has become final. Defendant 1 and defendants 3 to 5 have preferred appeals; Appeal No. 304/34 is by defendants 3 to 5 and Appeal No. 305/ 34 is by defendant 1. Defendants 1 to 4 are brothers and defendant 5 is their sister. The case of the plaintiff is that a security bond was taken by him for the purpose of securing advances made by him to defendant 1 for carrying on business wherein all the defendants were interested, and that all the defendants agreed to hypothecate the immovable properties specified in the schedule to the security bond as security for the said advances. Various defences are raised by the defendants. Defendant 1 admitted the execution of the bond, but stated that he had made two payments of Rs. 10,000 and Rs. 5,000 and endorsed the same on the last but one sheet of the bond and the plaintiff remitted the balance and there was therefore a discharge of the suit bond, that the plaintiff had torn away that sheet, substituted another for it and sued upon it, and there, fore the bond sued on was not duly executed and not validly attested and not enforceable against him. Defendants 3 and 4 stated that when they signed the bond purporting to be dated 3rd August 1924 there were no alterations or erasions and there were no attesting witnesses to the bond and therefore it was not a validly attested document. Defendant 5 denied execution of the bond and stated that she knew nothing about it. Save in regard to defendant 5, there was no specific issue as to the execution of the bond and there was a general issue raised in the case, issue 4:

Is the suit document invalid in part or in whole for all or any of the reasons mentioned in the defendants written statement?

2. At an early stage of the case an application was made for raising a specific issue, "(1) whether the security bond was duly attested as required by law", but the application was not granted on the ground that issue 4 would cover it. It may be noticed that no attesting witness has been called to prove the document, but nevertheless the learned District Judge held that the bond was duly executed by all the defendants and the bond is not invalid for all or any of the reasons mentioned in the written statements. It is contended on behalf of defendants 3 to 5 that the document has not been validly proved according to law and no decree can be passed against them; at any rate, so far as defendant 5 is concerned, the validity of the bond has not been established. The case of defendant 5 can be easily disposed of. It is admitted that she is a pardanashin lady. It is settled by more than one decision of the Judicial Committee that if a person seeks to enforce a deed executed by a pardanashin lady, it is incumbent upon him not only to prove that the bond was executed by her but also that it was explained to her and she perfectly understood its contents and that she executed the document of her own free and independent will. The only evidence relating to the validity of the document is the evidence of the plaintiff himself who says that when it was agreed that the bond should be executed by all, he went to defendant 5 who told him that she will execute the bond. Beyond this there is not a scintilla of evidence to show that the bond which is sought to be enforced was the original bond to which she affixed her signature, and that the bond which is alleged to have been executed by her was explained to her and she understood the contents of it. So far as the evidence of the plaintiff is concerned, we think the evidence is such that we cannot act on it; and very rightly the learned District Judge would not base his conclusion in regar