Vrajlal Bhimjee Vs. Thakkar Jamnadas Valjee and Another  INSC 309 (11 May 1994)
R.M. (J) Sahai, R.M. (J) Hansaria B.L. (J)
1994 SCC (4) 723
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.
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.
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.
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.
the result, this appeal succeeds and is allowed.
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.