Regular Second Appeal No. 2573 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2573 of 2008 Date of decision : May 10, 2011 Pritam Kaur and others ....Appellants versus Ram Chander and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Amit Jain, Advocate, for the appellants Mr. Pritam Saini, Advocate, for respondent nos. 1 to 8 L.N. Mittal, J. (Oral) Defendants no. 1 to 9 have filed the instant second appeal having failed in both the courts below. Suit was filed by Hukmi Devi plaintiff no. 1 (since deceased and represented by respondents no. 1 to 7) and Krishna Devi plaintiff no. 2/respondent no. 8 against appellants/defendants no. 1 to 9 and Sindhu Kaur defendant no. 10/respondent no. 9. Plaintiffs' case is that Avtar Singh predecessor of the defendants mortgaged the suit land with plaintiffs Hukmi Devi and Krishna Devi vide mortgage deed 20.6.1990 for Rs 55,000/- and subsequent mortgage deed dated 19.6.1991 for Rs 16,000/- i.e. for total Regular Second Appeal No. 2573 of 2008 -2- mortgage amount of Rs 71,000/-. After creation of mortgage, the suit land was given to Avtar Singh for cultivation as tenant on 1/3rd batai. However, neither Avtar Singh nor defendants, who succeeded him after his death, paid any batai to the plaintiffs. Accordingly, the plaintiff sought possession of the mortgaged land in suit and in the alternative, claimed recovery of Rs 71,000/- as mortgage amount and Rs 73,340/- as interest @ 1% per month i.e. total amount Rs 1,44,340/-. Defendants broadly denied the plaint averments. It was pleaded that Avtar Singh never mortgaged suit land nor received any mortgage money. Avtar Singh had been taking other land of plaintiffs on batai and the plaintiffs might have obtained his thumb impressions by fraud and misrepresentation. Various other pleas were also raised. Learned Civil Judge (Junior Division), Kurukshetra vide judgment and decree dated 25.3.2006 decreed the plaintiffs' suit for recovery of Rs 1,44,340/- with interest @ 6% per annum from the date of filing of suit till recovery. First appeal preferred by the defendants has been dismissed by learned Additional District Judge, Kurukshetra vide judgment and decree dated 16.5.2008. Feeling aggrieved, defendants no. 1 to 9 have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants contended that mutation Ex. P7 of the first mortgage dated 20.6.1990 was sanctioned in the year 1994 after the death of Avtar Singh without notice to the defendants and in their Regular Second Appeal No. 2573 of 2008 -3- absence. However, this circumstance would not invalidate the mortgage because mutation is not the basis or document of rights and liabilities of the parties. Mutation is sanctioned to update the revenue record. The basis of title and rights and liabilities of the parties is deed of alienation i.e. sale deed, mortgage deed, gift deed etc. In the instant case, mortgage deeds are the basis of claim of the plaintiffs. Consequently, aforesaid contention of relating to mutation is not sufficient to negative the claim of the plaintiffs. Learned counsel for the appellants also contended that first mortgage was allegedly for Rs 55,000/- but sum of Rs 15,000/- only was paid before the Sub Registrar at the time of registration of the mortgage deed whereas no amount was paid before the Sub Registrar at the time of registration of second mortgage deed for Rs 16,000/-. It was contended that payment of balance amount as recited in the mortgage deeds has not been proved. This contention also cannot be accepted. Payment of Rs 15,000/- before the Sub Registrar stands established from the endorsement of the Sub Registrar whereas payment of the balance amount was accepted by the mortgagor by recitals in the mortgage deeds. Learned counsel for the appellants also contended that the suit is barred by limitation as the suit for recovery was filed more than three years after the execution of the mortgage deeds, the suit having been filed on 22.4.1999. It was contended that limitation for filing the suit is governed by residuary Article 113 of the Schedule to the Limitation Act, 1963 prescribing three years as the limitation period. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court Regular Second Appeal No. 2573 of 2008 -4- in Monimala Devi vs. Indu Bala Debya and others, AIR 1964 SC 1295. The contention is completely untenable. The suit is governed by Article 62 of the Schedule to the Limitation Act, 1963, which is reproduced as under:- 62 To enforce payment of money secured by a mortgage or otherwise charged upon immovable property. Twelve years When the money sued for becomes due. From bare perusal of the aforesaid provision, it is crystal clear that limitation period for suit to enforce payment of money secured by a mortgagee or otherwise charged upon immovable property is 12 years. Consequently, the instant suit cannot be said to be barred by limitation as it was filed within nine years of the first mortgage deed and within eight years of the second mortgage deed. Learned counsel for the appellants lastly contended that mortgage deeds in question have not been proved as no attesting witness has been examined to prove the same although defendants specifically denied the execution of the mortgage deeds in question. It was contended that it was essential to examine at least one attesting witness of the mortgage deeds to prove the same. Reliance in support of this contention has been placed on judgments of Hon'ble Supreme Court in Bhagat Ram & Anr. vs. Suresh & Ors., 2004(1) Civil Court Cases 297 and Thakkar Vrajlal Bhimjee vs. Thakkar Jamnadas Valjee & Anr., 1996(1) Civil Court Cases 15C). On the other hand, learned counsel for the respondents contended that scribe of both the mortgage deeds has been examined and he has proved due execution of the mortgage deeds. Fingerprint Expert has Regular Second Appeal No. 2573 of 2008 -5- also been examined as witness to depict that disputed thumb impressions of Avtar Singh on both mortgage deeds matched with his standard thumb impressions. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in Ishwar Dass Jain (Dead) through LRs vs. Sohan Lal (Dead) through LRs., 1999(2) RCR (Rent) 714. I have considered the rival contentions. Section 59 of the Transfer of Property Act, 1882 (in short, TP Act) stipulates that mortgage for principal money of Rs 100/- or upwards can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Thus, mortgage securing principal money of Rs 100/- or upwards is required by law to be attested by at least two witnesses. Section 68 of the Evidence Act postulates that 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, provided that it shall not be necessary to call an attesting witness if the document is registered and its execution is not specifically denied. In the instant case, Ram Chander PW4 husband and one of the legal representatives of plaintiff no. 1 admitted that both the witnesses of the first mortgage deed are alive. There is also no evidence that none of the attesting witnesses of the second mortgage deed is alive. However, no attesting witness of either mortgage deed has been examined by the plaintiffs to prove the same. Consequently, mandatory requirement of section 68 of the Evidence Act read with section 59 of the Regular Second Appeal No. 2573 of 2008 -6- TP Act has not been fulfilled and therefore, the mortgage deeds have not been proved. Judgments of Hon'ble Supreme Court in the cases of Bhagat Ram (supra) and Thakkar Vrajlal Bhimjee (supra) are fully applicable. The scribe of mortgage deeds did not know the mortgagor personally and therefore, he cannot be a substitute for the attesting witness to satisfy the mandatory requirement of section 68 of the Evidence Act. Similarly testimony of Fingerprint Expert regarding existence of thumb impressions on mortgage deeds is also not sufficient to satisfy the mandatory requirement of section 68 of the Evidence Act. There is no explanation for non-examination of any attesting witness of the mortgage deeds so as to satisfy the mandatory requirement of section 68 of the Evidence Act. In view thereof, the mortgage deeds have not been proved in accordance with law. Judgment in the case of Ishwar Dass Jain (supra) cited by counsel for respondents is not applicable because in that case execution of mortgage deed was admitted by the opposite party. In the instant case, however, execution of the mortgage deeds in question has been specifically denied by the defendants. Consequently, it was essential for the plaintiffs to have examined at least one witness each of both the mortgage deeds to prove the same. However, it has not been done. Learned counsel for the respondents contended that Dalel Singh one of the legal heirs of plaintiff no. 1 while appearing in the witness box admitted the execution of the mortgage deeds. The contention is untenable. Dalel Singh did not admit the execution of mortgage deeds by Avtar Singh. He rather stated specifically that the mortgage deeds have Regular Second Appeal No. 2573 of 2008 -7- been fabricated by the plaintiffs in collusion with scribe and attesting witnesses. For the reasons aforesaid, I find that plaintiffs have not proved due execution of the mortgage deeds in question in accordance with law. Finding of the courts below to the contrary is thus perverse and illegal and against the mandatory provisions of law. Substantial question of law to this effect, therefore, arises for adjudication in this second appeal regarding satisfaction of requirement of section 68 of the Evidence Act read with section 59 of TP Act to prove due execution of the mortgage deeds. The said question is accordingly answered in favour of the appellants for the reasons recorded hereinbefore. Since the mortgage deeds have not been proved, plaintiffs' suit for recovery of mortgage money cannot be decreed. As a necessary upshot of the discussion aforesaid, the instant second appeal is allowed and judgments and decrees of the courts below are set aside and suit filed by the plaintiffs stands dismissed. The parties are, however, left to suffer their respective costs throughout. ( L.N. Mittal ) May 10, 2011 Judge 'dalbir'