http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

PETITIONER: THAKKAR  VRAJLAL  BHIMJEE

       Vs.

RESPONDENT: THAKKAR  JAMNADAS  VALJEE  ANDANOTHER

DATE OF JUDGMENT11/05/1994

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) HANSARIA B.L. (J)

CITATION:  1994 SCC  (4) 723

ACT:

HEADNOTE:

JUDGMENT: ORDER 1.The 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. 2.The 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. 3.In  Kunwar  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. The 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. 4.In  the  result, this appeal succeeds and  is  allowed. The  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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

725