1. The learned District Judge allowed the appeal of the defendants Nos. 2 and 3 and reversed the decision of the District Munsif on the sole ground that the plaintiff’s mortgage was not duly attested, although the defendants admitted in para. 4 of their written statement that Balasubarayudu executed it and although there was no issue directly on this point of attestation and that the plaintiffs attention was not called to the necessity of his proving that the attestors to the mortgage document saw the executant signing.
2. [A]It was held by a Bench of this Court in Rangaswamy Ayyangar v. Veeraraghavachary 76 Ind. Cas. 1003 : 46 M.L.J. 56 : 18 L.W. 620 : (1923) M.W.N. 789 : 33 M.L.T. 73; A.I. R.1924 Mad. 513 that such an objection should not be allowed to be taken for the first time in the Appellate Court. [A] There was, however, an issue here (Issue No. 2) whether the plaintiff’s mortgage was valid and binding on defendants Nos. 2 and 3; and upon this issue the District Munsif considered the question as to validity of the attestation and decided it in plaintiffs favour as the writer of the document had seen the mortgagor sign and, his statement that the attesting witnesses did not sign in his presence was not believed. It does not follow from this statement, even if it is true, that the attestors did not see the mortgagor sign. If they were present on the spot they may have seen the mortgagor sign, and if the writer signed first, as he says he did, he may have left the place before their signatures were taken. The writer does not say they were not at all present when the document was executed.
3. The attestors are both said to be now dead. Section 69 of Evidence Act provides for the manner of proving documents when the attestors are dead. As there was no clear issue in the first Court upon the point of attestation the plaintiff must now be given an opportunity of examining any witnesses who can prove the signature of the attesting witnesses and the defendants will be permitted to adduce rebutting evidence if they have any.
4. After this evidence has been recorded the District Judge should record a fresh finding upon the question whether the plaint mortgage was duly attested.
5. As his judgment indicates that he is inclined to differ from the District Munsif on the question whether, the transaction was not a colourable one got up to defeat a prior mortgagee, which was the defence put forward in para. 4 of the written statement of defendants Nos. 2 and 3, the District Judge will also record a finding upon this question upon the evidence on record.
6. Two months for finding and 10 days for objections.
7. In compliance with the above order the District Judge of Anantapur submitted the following.
(1) Whether the plaint mortgage was duly attested?
(2) Whether the mortgage was not a colourable one got up to defeat a prior mortgagee?
8. All things considered, I am of opinion that the attestors did witness the execution and that the deed was properly attested. The attestation was not disputed in the written statement. This issue is, therefore, found in the affirmative.
9. 2nd Issue: In the absence of reliable evidence to show that the mortgage under Ex. A was without consideration, I do not consider that the probabilities of the case warrant my coming to a conclusion that Ex. A was not intended to convey what is purported to convey. It is accordingly found that the transaction was not a colourable one got up to defeat a prior mortgagee.
10. This second appeal coming on for final hearing after the return of the finding of the lower Appellate Court upon the issues referred by this Court for trial, the Court delivered the following.
11. I accept the findings. All the parties to the document are dead, but one and it has been found that he gave false evidence. [B] The handwriting of the attestators has been proved and the pre-sumption, in the absence of rebutting evidence, is that they actually witnessed the execution of the deed. Vide, Uttam Singh v. Hukam Singh 38 Ind. Cas. 651 : 39 A. 112 : 15 A.L.J. 167. [B]
11. The second appeal is allowed with costs in this and in the lower Appellate Court.