Full Judgment Text
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PETITIONER:
THAKKAR VRAJLAL BHIMJEE
Vs.
RESPONDENT:
THAKKAR JAMNADAS VALJEE ANDANOTHER
DATE OF JUDGMENT11/05/1994
BENCH:
SAHAI, R.M. (J)
BENCH:
SAHAI, R.M. (J)
HANSARIA B.L. (J)
CITATION:
1994 SCC (4) 723
ACT:
HEADNOTE:
JUDGMENT:
ORDER
1.The only question of law that arises for consideration
in this appeal is whether the mortgage deed was proved in
accordance with law in absence of examination of any of the
attesting witnesses.
2.The High Court held that since the appellant, who was a
guarantor, having admitted his signature on the mortgage
deed and he having not Specifically denied in the written
statement the execution of the document it was not necessary
for the respondent-plaintiff to examine any attesting
witness to prove the execution of the mortgage deed.
3.In Kunwar Surendra Bahadur Singh v. Thakur Behari
Singh’, it has been held that one of the essentials of
mortgage deed is that each of the attesting witnesses must
have signed the document in the presence of the executant.
The Court held that if the provisions of Sections 58 and 59
of the Registration Act and Sections 3 and 59 of the
Transfer of Property Act are read together, there was no
escape from the conclusion that a mortgage deed was required
to be proved by producing ;it least one of the attesting
witnesses. In view of this decision the judgment of the
High Court cannot be upheld. The observation of the High
Court that there was no specific denial by the appellant in
his written statement also does not appear to be correct as
the appellant in paragraph 11 clearly stated that he did not
admit the document dated 22-4-1958. There was thus a
specific denial and as held by the Privy Council in absence
of production of any attesting witness the document could
not be deemed to have been proved in accordance with law.
4.In the result, this appeal succeeds and is allowed.
The order and decree of the courts below against the
appellant-guarantor is set aside and the suit against him
shall stand dismissed. We may make it clear that the
mortgagee having not appealed in the High Court against the
decree passed by the two courts below, it has become final
against him. Parties shall bear their own costs.
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