A mortgage deed must be proved by examining at least one attesting witness, failing which the document cannot be considered valid under the Evidence Act.

JUDGMENT :

P. VADAMALAI, J.

This Appeal is directed against the judgment and decree dated 26.03.2019 passed in O.S.No.155 of 2015 on the file of the learned Fifth Additional District Judge, Madurai.

2. The appellant is the defendant in O.S.No.155 of 2015 on the file of the learned Fifth Additional District Judge, Madurai. The respondent is the plaintiff in that suit. The respondent/plaintiff filed the suit for recovery of money based on the mortgage deed against the appellant/defendant. The appellant/defendant contested the suit. The suit was decreed by the trial Court.

3. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

4. The brief facts are as below:

(a) The case of the plaintiff is that the defendant borrowed Rs.10,00,000/- (Rupees Ten lakhs only) from the plaintiff on 09.01.2013 and executed a registered mortgage deed bearing No.108/2013 in respect of the suit property in favour of the plaintiff, agreeing to repay the same with interest at 2% p.m. But the defendant has not repaid the loan amount in spite of several demands. The plaintiff issued a legal notice, dated 08.06.2015. The defendant received the notice, but he has not chosen to repay the loan amount and has also not sent any reply. Hence, the plaintiff has filed the suit.

(b) The case of the defendant is that the defendant neither borrowed a loan of Rs.10,00,000/- at any point of time nor executed the alleged mortgage deed, dated 09.01.2013, agreeing to repay with interest at the rate of 24% p.a. The defendant never signed the alleged mortgage deed in favour of the plaintiff. The alleged mortgage deed is fabricated and concocted document. The claim of interest is exorbitant and illegal, and the plaintiff is punishable under the provisions of the Tamil Nadu Prohibition of Charging Exorbitant Interest Act. The defendant is a retired teacher and he has no necessity to borrow huge amount. The defendant’s friend one P.K.Balasubramanian, borrowed loan from the plaintiff, at the time, the plaintiff insisted him to produce any title deed. Only to help his friend, the defendant handed over his title deed to his friend, who in turn handed over the same to the plaintiff. Taking advantage of the possession title deed, the plaintiff forged the signature of the defendant and created the concocted mortgage deed. So, the said P.K.Balasubramanian is a necessary party. There is no cause of action for the suit. The plaintiff has falsely filed this vexatious suit.

5. The trial Court framed the following issues upon the pleadings of both parties.

(1) Whether the plaintiff is entitled to preliminary decree for mortgage to recover the plaint amount from the defendant?

(2) Whether the suit mortgage deed is based on consideration?

(3) Whether the interest is exorbitant?

(4) To what other relief the plaintiff is entitled to?

6. Before the trial Court, the plaintiff examined himself as P.W.1 and marked Ex.A.1 to Ex.A.3. On the defendant's side, the defendant entered into the witness box and examined himself as D.W.1, however, no exhibit was marked.

7. On appreciation of evidence and considering the arguments of both the parties, the trial Court partly decreed the suit and preliminary decree was passed, awarding interest at the rate of 9% from the date of borrowal till the date of judgment and thereafter at the rate of 6% till realization.

8. The judgment and decree of the trial Court is under challenge in this appeal.

9. The points for consideration in this appeal is:

Whether Ex.A.1 is proved by the plaintiff as required by Sec.68 of Evidence Act?

10. Point:

The learned counsel for the appellant/defendant has argued that the defendant is a retired teacher, and he had no necessit