Madras High Court
S.Selvaraj vs Mary Charlet on 19 April, 2021
1 S.A.(MD)NO.163 OF 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.04.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.163 of 2012
S.Selvaraj ... Appellant/Appellant/
Plaintiff
Vs.
Mary Charlet ... Respondent/Respondent/
Defendant
Prayer: Second appeal filed under Section 100 of
C.P.C., to set aside the Judgment and Decree dated
22.10.2009 passed in A.S.No.61 of 2008 on the file of the
Subordinate Judge, Padmanabhapuram, confirming the
Judgment and Decree dated 13.12.2007 passed in O.S.No.375
of 2005 on the file of the Principal District Munsif,
Padmanabhapuram and allow this second appeal.
For Appellant : Ms.J.Anandhavalli
For Respondent : Mr.R.Nandakumar
***
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JUDGMENT
The unsuccessful plaintiff in O.S.No.375 of 2005 on
the file of the Principal District Munsif Court,
Padmanabhapuram, is the appellant in this second appeal.
2. The suit was filed for realising a sum of Rs.36,450/-
with interest. It was instituted on the strength of Ex.A.1
mortgage deed dated 01.12.1993. According to the plaintiff,
his brother Cyril borrowed a sum of Rs.15,000/- by mortgaging
the suit property and executed the said mortgage deed. It was
also duly registered. The defendant purchased the suit
property from Cyril on 28.02.2001. Cyril passed away on
23.07.2002. According to the plaintiff, neither his brother nor
the subsequent purchaser, namely, the defendant cleared the
mortgage debt. That necessitated the institution of the
aforesaid suit. The defendant filed written statement denying
the suit claim. She also specifically denied the execution of the
mortgage deed. The plaintiff examined himself as P.W.1 and
marked Ex.A.1 to Ex.A.4. The defendant's husband Rajendran
was examined as D.W.1 and Ex.B.1 and Ex.B.2 were marked.
After considering the evidence on either side, by Judgment
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3 S.A.(MD)NO.163 OF 2012
and Decree dated 13.12.2007, the trial Court dismissed the
suit. The ground for dismissal of the suit was that the plaintiff
failed to examine atleast one of the attestors of the document.
A.S.No.61 of 2008 filed before the Sub Court,
Padmanabhapuram, also met the same fate. Questioning the
same, this second appeal came to be filed.
3. The second appeal was admitted on the following
substantial question of law:-
“Whether the Judgment and Decree of
the Courts below in dismissing the suit is
sustainable in law for non-compliance of Section
68 of the Indian Evidence Act, ignoring the fact
that the person disputing the document is
incompetent to question the same?”
4. The learned counsel appearing for the appellant
submitted that Ex.A.1 mortgage deed which is the sheet
anchor of the suit is a registered document and its validity
cannot be impeached. She contended that the defendant had
notice of the mortgage and knowingly purchased the suit
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4 S.A.(MD)NO.163 OF 2012
property. Ex.A.4 encumbrance certificate marked by the
plaintiff contains the entry regarding mortgage. The foremost
argument advanced by the learned counsel appearing for the
appellant was that the Courts below erred in not taking note
of the proviso to Section 68 of the Indian Evidence Act, 1872.
According to her, it is only the mortgagor/ executant of Ex.A.1
who could have denied the execution. It is not open to the
subsequent purchaser or a third party to the transaction to
challenge or deny the execution of Ex.A.1. Reliance was
placed on the decision reported in (2015) 8 SCC 615
(JAGDISH CHAND SHARMA V. NARAIN SINGH SAINI).
Emphasis was placed on paragraph No.15.2 in which it was
noted that the main proviso to Section 68 of the Indian
Evidence Act, 1872 will be triggered only if the execution of
the document is denied by the person who executed the same.
The learned counsel called upon me to answer the substantial
question of law in favour of the appellant, reverse the
impugned Judgment and allow the second appeal.
5. Per contra the learned counsel appearing for the
respondent submitted that the defendant was a bonafide
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purchaser for value without notice of the suit mortgage. In
support of this defence, the defendant had marked Ex.B.2
encumbrance certificate in which the mortgage had not at all
been reflected. In any event, when the defendant had
challenged the execution of Ex.A.1, it was incumbent on the
part of the plaintiff to call at least one of the attestors of the
document to prove its execution. Since the plaintiff failed to do
so, the trial Court rightly dismissed the suit. He would submit
that the Courts below have correctly applied the principles of
law and that the impugned Judgment does not call for any
interference. He prayed for dismissal of the second appeal.
6. I carefully considered the rival contentions and the
went through the evidence on record.
7. The suit is one for enforcing a mortgage. According
to Section 59 of the Transfer of Property Act, 1882 where the
principal money secured is 100 or upwards, a mortgage (other
than a mortgage by deposit of title deeds) can be effected only
by a registered instrument signed by the mortgagor and
attested by atleast two witnesses. As per Section 68 of the
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Indian Evidence Act, 1872, if a document is required by law to
be attested, it shall not be used as evidence until one attesting
witness 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. But
the proviso to Section 68 of the Act reads 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(XVI of 1908), unless its execution by the person by
whom it purports to have been executed is specifically denied.
8. In the case on hand, the execution of Ex.A.1
mortgage has been specifically denied by the defendant. In
fact the first issue framed by the trial Court was whether on
01.12.1993 Cyril borrowed a sum of Rs.15,000/- from the
plaintiff and as security executed the mortgage in respect of
the suit property. The contention put forth by the learned
counsel appearing for the appellant is that it is only the
executant who is competent to deny the execution and that
the plea of denial of execution cannot be put forth by the
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subsequent purchaser. In the decision reported in (2015) 8
SCC 615 (JAGDISH CHAND SHARMA V. NARAIN SINGH
SAINI) that has been pressed into service, I am unable to
notice any such proposition as claimed by the learned counsel
appearing for the appellant.
9. The issue on hand is no longer res integra. In the
decision reported in (1956) 69 L.W. 815 (Periakaruppa
Moopan V. Adaikkala Mooppan and another), a learned Judge
of the Madras High Court held that the denial of execution
need not necessarily be by the person executing the document
but by any one who is affected by the mortgage or against
whom certain rights are claimed under the mortgage. The
learned Judge noted that the very same view was taken by the
other High Courts in the decisions reported in AIR 1925 All.
56, AIR 1949 Nag. 149 and AIR 1932 All. 320. The Hon'ble
Division Bench of the Kerala High Court in the decision
reported in 1984 KLJ 627 (Vavil Kannan Nambiar V.
Othayath Narayani Amma) had also taken the very same view.
In Brij Raj Singh V. Sewak Ram ((1999) 4 SCC 331), the
Supreme Court held that the Proviso to Section 68 of the
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Evidence Act dispenses with the necessity of calling an
attesting witness in proof of any document, except a Will,
which has been registered in accordance with the provision of
the Indian Registration Act when there is no specific denial by
the party against whom the document is relied upon.
Therefore, I have to necessarily reject the argument put forth
by the learned counsel appearing for the appellant.
10. However, the fact that Ex.A.1 was allowed to be
marked without any objection troubled my mind. It was
because the Privy Council in the decision reported in (1962) 3
WLR 374 (Govindji Popatlal V. Nathoo Visandji) in an appeal
arising from Kenya had held as follows:-
“The only other point argued before the Board was a
contention by the defendant that the plaintiff had failed to
prove the execution or attestation of the charge upon which
his claim was founded by his failure to call one attesting
witness. This contention was based on section 68 of the Indian
Evidence Act which is in the following terms:-
“68. If a document is required by law to be attested, it
shall not be used as evidence until one attesting witness at
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9 S.A.(MD)NO.163 OF 2012
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:
Provided 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.”
It is to be observed that this point was not taken
before the Supreme Court but only arose out of an additional
ground of appeal lodged on the day on which the case came on
for hearing before the Court of Appeal. The Court of Appeal
allowed this additional ground of appeal to be argued, but
they rejected it. Their Lordships consider that they were right
in so doing.
If the appellant had objected under Section 68 to the
admission of the charge when this document was tendered in
evidence by the respondent, the learned Judge would then
have had to consider whether the objection was well founded.
If he had sustained the objection, the respondent would then
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have had an opportunity of complying with the terms of
Section 68 by calling one of the attesting witnesses or by
resort to Section 69. But no objection was taken by appellant's
counsel and no cross examination was directed to the
respondent. The case thereafter proceeded upon the footing
that the charge had been validly executed and the appellant's
argument before the trial Judge was principally directed to the
point that the charge itself was not in proper form having
regard to the terms of Section 46 of the Registration of Titles
Ordinance and that it could not therefore be registered. The
appellant was therefore relying on the form of the charge in
order to justify his objection to its validity and his argument
involved the assumption that it was validly executed. This
point was dealt with by the trial Judge adversely to the
appellant, but there is no trace in his judgment or in the
arguments of counsel that the execution of the charge was
ever challenged. Their Lordships consider that where a case
has been conducted before the trial Judge by both parties
upon the footing that a document has been properly admitted
in evidence, it is not open to a party on appeal to argue that
owing to some defect in the proof the document ought not to
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11 S.A.(MD)NO.163 OF 2012
have been admitted. The principles governing this matter
were stated by this Board in Gopal Das V. Sri Thakurji
AIR(30) 1943 Privy Council 83 at page 87 “Where the
objection to be taken is not that the document is in itself
inadmissible, but that the mode of proof put forward is
irregular or insufficient, it is essential that the objection
should be taken at the trial before the document is marked as
an exhibit and admitted to the record. A part cannot lie by
until the case comes before a Court of Appeal and then
complain for the first time of the mode of proof.” The charge
was not inadmissible, but could according to Section 68 and
69 be proved in a certain manner. The objection could only be
to the mode of proof.
This principle was given effect to by Dawson
Miller, C. J., in Baijnath Singh V. Brijraj Kuar AIR 1922 Patna
514 at pages 523-4(disapproving of an earlier case of Shib
Chandra Singha V. Gour Chandra Pal (1921) ILR 45 Calcutta
160 at 167). In the whole circumstances their Lordships are
satisfied having regard to the conduct of the trial the appellant
must be held to have waived any objection to the admissibility
of the charge.”
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12 S.A.(MD)NO.163 OF 2012
11. Of course unlike in the aforesaid case, the
execution of the document had been specifically denied by the
defendant. I wondered if because of her failure to object to the
marking of Ex.A.1, the plea of non-execution can be said to
have been waived. My mental oscillation was arrested by the
decision of the Madras High Court reported in (1975) 2 MLJ
155 (Rajammal V. Chinnathal), which held as follows:-
“ 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 atleast 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
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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.”
The Hon'ble Judge treated the issue as one pertaining to
admissibility of the document itself and not merely one of
mode of proof. Therefore, it is not possible for me to hold that
the defendant by not opposing the marking of document at the
time of trial had waived her plea of non-execution of Ex.A.1.
12. The defendant being the subsequent purchaser is
entitled to deny the execution of the mortgage, as the
document is sought to be used against her. Therefore, in view
of Section 68 of the Indian Evidence Act, 1872, the appellant
ought to have proved its execution only by calling atleast one
of the attesting witnesses. It is not the case of the appellant
that those witnesses are not alive. Therefore, the Courts below
rightly applied Section 68 of the Indian Evidence Act and
dismissed the suit. The substantial question of law is answered
against the appellant.
13. This second appeal is dismissed. No costs.
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19.04.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
G.R.SWAMINATHAN,J.
PMU
To:
1. The Subordinate Judge,
Padmanabhapuram.
2. The Principal District Munsif,
Padmanabhapuram.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
S.A.(MD)No.163 of 2012
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