JUDGMENT
M.M. Ismail, J.
1. The plaintiff in O.S. No. 29 of 1969 on the file of the Court of the Subordinate Judge of Pudukkottai is the appellant herein. She instituted the suit against the respondent on a mortgage Exhibit A-1, dated 16th November, 1964 said to have been executed by the respondent for a sum of Rs. 8,000. The plaint itself stated that the respondent had repaid four sums of Rs. 50 each on 15th April, 1968; 30th April, 1968. 21st June, 1968 and 30th July, 1968 towards interest and the suit was filed for recovery of the balance. One of the several defences that was put forward by the respondent was that she was not aware of the execution and due attestation of the document and that she had not even seen the appellant herein. She also denied the due execution and valid attestation of the mortgage Exhibit A-l. On this question, admittedly no attesting witness was examined as required by Section 68 of the Indian Evidence Act, in view of the denial of execution by the respondent. P.W. 2, who is the scribe of the document, was examined. Having regard to this position, the learned trial Judge has stated that the effect of Section 68 of the Indian Evidence Act, which requires the examination of at least one attesting witness to a document, which under the law requires to be attested, has been considered in Venkatasubbiah v. Subbamma and Ors. (1956) An.W.R. 632 : A.I.R. 1956 A.P. 195 and that it has been held in that case that ” the proof contemplated under Section 62 can be furnished by the scribe of the document who could speak to the execution of it and it is not essential that it should be proved only by at least one of the attesting witnesses “. It is on this basis only that the learned trial Judge decreed the suit to the extent of Rs. 5,000 on his finding that the mortgage was supported by consideration only to that extent.
2. The plaintiff has filed the appeal contending that she is entitled to the entire mortgage amount due under the mortgage deed and not merely to the sum of Rs. 5,000 as held by the learned trial Judge, while the defendant has preferred a memorandum of cross-objections contending that even the decree for the sum of Rs. 5,000 ought not to have been granted by the learned Subordinate Judge.
3. I am clearly of the opinion that the conclusion of the learned Subordinate Judge on the admissibility of Exhibit A-1 as a mortgage deed is erroneous. As I have pointed out already, in paragraph 2″ of the written statement the respondent categorically denied the due execution and valid attestation of the document. Therefore, Section 68 of the Indian Evidence Act is immediately attracted. According to that section, 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. The section contains a proviso that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied. In this case, as I have pointed out already, the defendant specifically denied the due execution and attestation of the document and therefore the proviso does not apply and the main part of Section 68 : alone applies. I am of the opinion that the requirement of that section has not been satisfied in the present case. P.W. 2 is the scribe of Exhibit A-1 and he has given evidence to his having written the document. Nowhere in the course of his evidence he has stated that he was one of the attesting witnesses to the document in question. It has been held by this Court as well as the Supreme Court that an attesting witness must subscribe his signature with the intention that it should be complete attestation of the document and that if the ammo attestandi is not present, there cannot be a valid, attestation. P.W. 2 does not appear to be a witness in Exhibit A-1 and in his evidence also he has not stated that he attested the document with the intention of attesting the same. Under these circumstances, it is clear that the requirement of Section 68 of the Indian Evidence-Act has not been complied with.
4. With reference to the decision of the Andhra Pradesh High Court relied on by the learned trial Judge, namely, Venkatasubbiah v. Subbamma and Ors. (1956) An.W.R. 632 : A.I.R. 1956 A.P. 195, the very same High Court in a subsequent decision in Gaudkam Rajyalakshmamma and Anr. v. Rayanapati Satyavani (1970) 2 An.W.R. 88 held that the said decision of that High Court was no longer good law after the decision of the Supreme Court in Abdul Jabbar Sahib v. Venkaia Sastri and Sons and Ors. (1969) 2 M.L.J. (S.C.) 107 : (1969) 2 An.W.R. (S.C.) 107 : (1969) 2 S.C.J. 784 : A.I.R. 1969 S.C. 114, wherein the Supreme Court, as I have already pointed out, took the view that the animo attestandi must be present before a person can be said to be an attesting witness.
5. Apart from the above, the language of Section 68 is clear and categorical and therefore once the execution of the document is denied by the alleged executant, the document cannot be admitted in evidence, unless one attesting witness at least has been called for proving the execution of the document, if alive, and subject to process of the Court. In this case, there is no evidence to show that the attesting witnesses were not alive and in such circumstances, it is clear that the requirement of Section 68 of the Indian Evidence Act has not been complied with and that therefore Exhibit A-1 cannot be used in evidence. The suit being one on the mortgage, Exhibit A-1, and that mortgage document being inadmissible in evidence, it will have to be dismissed.
6. Accordingly the appeal filed by the plaintiff is dismissed and the memorandum of cross-objections filed by the respondent is allowed and the suit will stand dismissed on that ground. There will be no order as to costs both here and in the trial Court.
