The execution of a document required by law to be attested cannot be proved by other evidence unless the attesting witness is called and denies or does not recollect the execution of the document.

( 1 ) THE question raised in this second appeal by the defendant is an interesting one. A mortgage deed is executed. When it comes to the proof of the deed the only surviving attesting witness is not examined. Instead the plaintiff examines the lawyer who drafted the mortgage deed and helped in the execution of the deed. Admittedly, the lawyer had not signed the deed as an attesting witness. Both the courts below held the execution of the deed duly proved and also justified the absence of the attesting witness on the ground of his having been won over. The suit on the basis of the mortgage deed has been decreed by the courts below.

( 2 ) IN this appeal learned counsel for the appellant contended that the execution of the mortgage deed has not been duly proved and the evidence of other witnesses could not be looked into or relied upon by the court below unless the case came under the proviso to Section 68 or fell within the ambit of Section 17 of the Evidence Act. Learned counsel also contended that the provisions of Section 68 are mandatory and cited certain reported decisions. Learned counsel also contended that it was incumbent on the appellant to have summoned the attesting witness and if he denied the execution of the mortgage deed or declined to give evidence of the execution on the ground of the loss of memory then and then only other evidence could be led. As such the other evidence relied upon by the court below is not relevant. If the attesting witness denied the execution of the mortgage deed he would be liable to be declared hostile and cross-examined under Section 154 of the Evidence Act. Learned counsel for the respondent strenuously argued that the case came within the proviso of Section 68 of the Act as the document, the mortgage deed was a registered document and it was not necessary to call an attesting witness in proof of the execution of the document. He also contended that unless the execution of the document had been denied by the person concerned, it was not necessary to call an attesting witness. It was further contended by the learned counsel that since the plaintiff was fully aware that the attesting witness had been won over it was not necessary to call such a witness for he would have in any event denied the execution of the document. The Court was, therefore, justified in looking into other evidence.

( 3 ) HAVING heard the learned counsel for the parties I am satisfied that there has been a miscarriage of justice in this case. Section 68 of the Evidence Act is mandatory. It reads. :-

"68. Proof of execution of document required by law to be attested -- 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. "

I am omitting the proviso at the moment. The above provision makes it clear that the document which is required by law to be attested, should be proved by one of the attesting witnesses. Secondly, where at least one of the attesting witnesses is alive, he has to be examined provided he is subject to the process of the court and is capable of giving evidence. In the case of Jiwan Singh v. Dalip Singh (AIR 1929 all 389) a Division Bench of the Court has expressed an opinion that a document which is required by law to be attested cannot be used as evidence until at least one attesting witness has been called. This view still holds good and on law to the contrary has been shown. A mortgage deed is required to be attested by at least two attesting witnesses where the principal money secured is one hundred rupees or upwards.

( 4 ) THERE is no dispute that Bansidhar, one of the attesting witnesses, is very much alive and is subject to the process of the Court and is also capable of giving evidence. He has not been examined. It is stated that Bansidhar was a brot