Wort, Ag. C.J.
1. This appeal is by the plaintiff in a mortgage action. Both the Courts below have gone into a number of questions including the validity of the mortgage itself. They have held that it was the property of the deity and therefore inalienable as I understand their judgments. The Judge in the Appellate Court expresses himself in these words:
I see no reason to differ from the finding of the learned Munsif that the property mortgaged is debuttar property.
2. The learned Judge has also held that as there was no proof of attestation the action was bound to fail. A further point is argued before me that the defendants are not the legal representatives of the deceased mortgagor. I propose to deal with that point first. Both the Courts below have found as a fact that the defendants are the nearest agnates and heirs. Section 2(11), Civil P.C. describes "legal representative" as a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased.
There is no question of intermeddling with the estate and it does not assist the defendants by contending that they have not got possession, their case being that the deity was in possession; the defendant merely performed the pujaand therefore on the construction of Section 2(11) he is not the legal representative. The fact that the legal representative has not taken possession of the property does not assist the defendant.
3. If he is the legal representative, it is his duty to take possession of the estate, and it is no answer to the proposition that the legal representative has not taken possession of the property. That question is "wrapped up in this case with the other (points whether this is a debuttar property. Their Lordships of the Judicial Committee of the Privy Council in Bholanath Sen v. Balaram Das A.I.R (1922) P.C. 382 "have emphasized what is really an elementary proposition in a mortgage action, namely that a mortgagor is estopped from asserting that he is not in possession of the property mortgaged. One is very diffident to make statement relating to what are elementary and fundamental principles of law, but it seems to be necessary in some cases. Brij Ratan Das v. Raghunandan Gir A.I.R (1923) Pat. 203 a decision of this Court, is another case. I quote the proposition laid down by the then Chief Justice:
If it should hereafter turn out either that the Hindu public or anybody else is interested as proprietor of the mortgaged property or has a paramount title adverse to that of the mortgagor, the decision in this suit will not be binding upon such a person.
4. The next question is that the Judges in the Courts below have quite clearly decided that there was no legal necessity. Now, that issue goes with the one with which I have just dealt. It is only in this case that it is admitted that the execution is on behalf of a person other than the person who actually executed the deed: in other words, if for example the deed was executed by the karta on behalf of the joint family or by the shebait on behalf of the idol, the question of legal necessity would arise. If once that fact is allowed to be established, the issue which the Judge in the Court below has decided against the plaintiff will be conclusive in this action. But as I have already stated the defendant was not entitled to say in this case that it was not the property of the shebait and he certainly did not say that the deed was on behalf of the deity. It is only if he is allowed to say that and if he can establish that the mortgage was. executed on behalf pf the deity that the question of legal, necessity would arise.
5. That argument is therefore overruled. One other question is whether the learned Judge'' in the Court below was right in holding that the mortgage ''document had not been proved. The original was not produced and secondary evidence was given, but that would make no difference to the application of Section 68, Evidence Act, which is mandatory. That Section provides;
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.
The Proviso is that this proof of attestation is not necessary in case of
any document 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.
6. There is no denial by the person who executed The document: indeed that person is dead and no such, evidence could be given. It is a denial by the, legal representative of that person. NW, the contention on behalf of the respondents is that when the words "Indian Registration Act, 1908" were used, it confined the application of the provisions of that particular Registration Act and not any previous Registration Act. Therefore, if the document we Registered, as this was, under the Registration Act which was in force prior to 1908'', the Proviso would not apply. In my judgment that is an impossible contention the clear policy of the law in this regard, is that there is a special sanctity (if I may use the expression) attaching to registration. When the amendment was passed after ten or twelve years ago, the legislation ''mentioned the only Registration Act which was in existence.
7. It is true, they might have said ''or under no previous Registration Act.'' The intention of the Section in my judgment, is perfectly clear and I overrule that point. I would; in the result, allow the appeal and set aside the judgments of the Courts below. The plaintiff would be entitled to a mortgage decree with costs throughout. Leave to appeal is refused.
