This appeal arises out of a suit instituted by the plaintiff-appellant to en­force a mortgage bond dated 3rd June, 1946. (2) The bond in suit purports to have been executed by defendants Nos. 1 and 2 for selves and as guardians of the other defendants, the first two defendants being husband and wife and the other defendants, being their minor sons. The deed was in favour of the Sylhet Industrial Bank Ltd.; but the plaintiff's case is that the said bank was amalgamated under the orders of the High Court of Judica­ture at Fort William in Bengal, with the plain­tiff Mahaluxmi Bank Ltd., which is a schedul­ed bank, having its registered head office at Calcutta, with a branch also at Shillong. The total consideration mentioned in, the document is a sum of Rs. 1,41,000/- and the defendants having made payments towards the satisfaction of the mortgage dues, the plaintiff sued to re­cover a sum of Rs. 1,29,251-15-0 only. The rate of interest mentioned in the bond is 6 per cent per annum and the schedules to the plaint specify the mortgaged securities in­cluding holding No. 29 in the Shillong Cantonment area. The suit was filed on 29-1-1948, the plaint having been presented by the Manager of the plaintiff-bank, who signed and authenti­cated the same. The plaintiff prays that a de­cree for the amount in claim should be pass­ed against the defendants with pendente lite interest at the bond rate until the expiry of the period of grace and in default of payment with­in that period, the dues may be satisfied by sale of the mortgaged properties. (3) The defendant No. 1, Kamakhyalal Goenka, in his written statement admitted hav­ing executed the document, but he said that he did so under pressure and undue influ­ence, because, he was in need of money at the time for running his business- He alleged that he borrowed money from the Sylhet Industi ial Bank Ltd., not as the Kaita of the family or for the benefit of his wife and children, but in his own personal capacity. " He also disputed the amount of consideration mentioned in the document. His contention was that the Bank gave him only Rs. 54,133-12-9, but mentioned am exaggerated amount in the document. " He also disputed the amount of consideration mentioned in the document. His contention was that the Bank gave him only Rs. 54,133-12-9, but mentioned am exaggerated amount in the document. He fur­ther stated that he was not given any copy of the account of his dues payable to the Bank, nor did he have an opportunity of scrutinising the accounts and that it was not true that, as recited in the deed, the defendant owed a sum of Rs. 86,866-3-3, to the bank, which was set off towards the consideration amount. He also took the plea that some of the properties under mortgage, namely, Holding No. 29 of the Cantonment area in Shillong had been gifted by him to the defendant No. 2 as far back as 24th August, 1938, over which he bad no disposing power and the mortgage, therefore, could not be enforced against that property. He also disputed the existence of any legal necessity for taking any loan. There was a further point of non-joinder of one of his sons Sajjan Kumar Goenka as a party to the suit raised by the defendant, but that de­fect has since been cured. (4) The written statement of defendant No. 2 is substantially in the same terms. She also raised the plea that the defendant No. 1 had no authority to raise any loan on the mort­gage of holding No. 29 of the Shillong Canton­ment, which had been gifted to her and over which the mortgagor had no power of disposal. She further averred that the bond in suit was not voluntarily executed by her and that her signature was obtained on a stamped paper on misrepresentation of facts and under coercion alleging that the defendant No. 1 was heavily indebted to the Sylhet Industrial Bank Ltd., and that if she did not sign the stamped paper, her husband would not be able to get any money from the bank, which he badly requir­ed. She also denied having received any con­sideration under the document arid further stat­ed that she had no knowledge of any legal pro­ceeding under which she was appointed a guar­dian of the minors. (5) The minor sons of the above defendants were represented by a guardian ad litem, who filed a separate written statement in which he controverted the material allegations in the plaint. (5) The minor sons of the above defendants were represented by a guardian ad litem, who filed a separate written statement in which he controverted the material allegations in the plaint. It was stated on their behalf that these defendants did not admit that they were in need of money so as to necessitate borrowing from the Sylhet Industrial Bank Ltd. They also de­nied the execution of the bond in suit. They asserted that the defendants Nos. 1 and 2 had no authority to represent these defendants in the said transaction and had no right to encumber the properties affecting the interest of these minors. They also alleged that the bond was without consideration and there was no necessity whatsoever for any loan at any time to be taken by the defendants. According to them, the pro­perties mortgaged were ancestral properties and as such their; interest could not be affected by the transaction. (6) At the trial the plaintiff examined its Manager and also +wo other witnesses. In ad­dition to some other documentary evidence, it also produced extracts of accounts to prove the loan on the bond and the various payments, which were from time to time made by the de­fendant No. 1 towards the mortgage dues accord­ing to the stipulations contained therein. On behalf of the defendants, the defendant No. 1 alone examined himself. The learned Subor­dinate Judge, who tried the suit, appears to have framed various issues in the case, all or almost all of which he answered against the plaintiff and dismissed the suit, leaving the parties to bear their own costs. (7) The very first issue relates to the ques­tion whether the plaintiff is competent to sue. An objection was taken during the pendency of the suit that the person entitled to sue was one S. K. Dutta, who had the authority to realise' the dues of the bank. This fact was also admitted by the Manager of the Bank, Ranendra Narayan Purkayastha (P. W. 1). The plaintiff was, there­fore, called upon to produce in Court the scheme approved by the High Court of Judicature a1j Fort William in Bengal for the working of the-bank. This fact was also admitted by the Manager of the Bank, Ranendra Narayan Purkayastha (P. W. 1). The plaintiff was, there­fore, called upon to produce in Court the scheme approved by the High Court of Judicature a1j Fort William in Bengal for the working of the-bank. From this scheme it is clear that the Sylhet Industrial Bank Ltd., was amalgamated with the plaintiff bank on 27-6-1947, and under the terms thereof, the whole of the under­taking assets, properties and liabilities of the transferor company, the Sylhet In­dustrial Bank Ltd., were transferred to and did vest in the said transferee company, the plaintiff Mahaluxmi Bank Ltd. The plaintiff bank was further held entitled to continue legal proceedings instituted by or against the said transferor company. The transferee com­pany was also authorised to carry on the busi­ness of the transferor company at its existing branches and had also the authority to close down such of the branches of the transferor company, as it considered necessary. The Court sanctioned this scheme under section 153 of the Indian Companies Act, by an order under dated the 1st April, 1950. It further ordered that Mr. S. ,K. Dutta, an Advocate of the Court, who wag a share-holder of the Sylhet Industrial Bank Ltd., prior to its amalgamation, should be in charge of the assets of the said Bank and the books of account relating thereto and realisa­tion and disbursement of the said assets ac­cording to the scheme of amalgamation sanc­tioned by the Court on the 25th day of June, 1947. It is, therefore, contended that the plain­tiff was not competent to sue any longer. This contention found favour with the learned Sub­ordinate Judge, who held that it was necessary to make Mr. S. K. Dutta, a party to the suit. In view of the objection to defect of party taken in the course of arguments, the plaintiff, on the 4th of September, 1952, filed an applica­tion praying that, if necessary, Mr. Dutta may be added as a party to the suit; but the Court refused to accede to the prayer, on the ground that the petition had been filed late. This was not an adequate justification to refuse the pra­yer, if the Court considered that the presence of Mr. Dutta was necessary for a proper adju­dication of the suit. There was no question of limitation involved so as to affect the defen­dants prejudicially. This was not an adequate justification to refuse the pra­yer, if the Court considered that the presence of Mr. Dutta was necessary for a proper adju­dication of the suit. There was no question of limitation involved so as to affect the defen­dants prejudicially. It is well established that subject to just equities, a party may be added at any stage of the proceedings. Even at this stage, we would have direct­ed Mr. Dutta to be brought on the record; but, we do not think that the suit could be dis­missed on that account. Even on the terms of the scheme, the transferee company, which was the plaintiff bank, was held entitled to conti­nue legal proceedings instituted by or against the transferor company. The plaintiff trans­feree was legally entitled to the assets of the transferor and had a right to recover the as­sets, irrespective of the obligation which rest­ed on Mr. Dutta to act for the plaintiff and take charge of the assets. There can be no doubt, therefore, that the plaint had been valid-ly presented by the Manager of the plaintiff bank and there was no legal bar to the conti­nuation of the proceedings, in respect of assets, which had vested in the plaintiff. The bank is a juristic entity and is entitl­ed to sue and be sued. Therefore, the omission to implead Mr. Dutta is not fatal to the suit. All that the order provides is that Mr. S. K. Dutta was to be in charge of the assets of the said Sylhet Industrial Bank Ltd., and the books of account, etc.; but it does not take away the right of the plaintiff bank to sue for the reali­sation of those assets. In our opinion, there­fore, the learned Subordinate Judge was in er­ror in holding that the plaintiff was not compe­tent to sue. (8) The Court below also framed an addi­tional issue about the legal consequences of: some supposed failure on the part of the plain­tiff to produce the accounts called for By the defendants 3 to 5. It is somewhat interesting to examine how and when this additional issue came to be framed. The evidence in the case was closed on 7-9-1951. Thereafter the case adjourned for arguments on several dates. It is somewhat interesting to examine how and when this additional issue came to be framed. The evidence in the case was closed on 7-9-1951. Thereafter the case adjourned for arguments on several dates. Then on 23-4-1952 the Court below recast the issues and framed the additional issue observ­ing that "as non-suiting the plaintiff would be an extreme penalty, I give the plaintiff time till 23-5-52 to produce the documents". There was no petition filed by the defen­dants on that day to show what documents were wanted and the order itself does not specify what those documents were, which the plain­tiff was asked to produce. Reference has, how­ever, been made by the learned Subordinate Judge in the judgment to "a petition" filed by the defendants Nos, 3 to 5 on 28-1-1950 calling "for a statement of accounts relating to the loan in question". On the "date in question the records show that various petitions were filed. One is a petition filed by the defendant No. 2 in which she wanted the plaintiff to produce "all books, papers, letters, copies of letters, and other writings and documents, etc.," particular­ly the deed of gift dated 24-8-1938, the register­ed mortgage deed dated 3-6-1946, the deed of lease dated 20-12-1938 and all share certificates, in original. The guardian ad item also filed three petitions on that date. In one, he wanted the defendant No. 1 to produce all books of accounts and all documents and writings relating to the properties connect­ed with the mortgage in suit. The second was a petition to the Court asking for a direction that the plaintiff should supply the copies of the entire accounts, including all loans to and payments made by the defendant, forming the consideration of the mortgage deed and all transactions subsequent thereto, etc. The third petition is addressed to the Advocate of the plaintiff asking him to produce all books, papers, letters, etc., relating to matters in ques­tion in the suit. As the subsequent orders of the Court indicate, the petition for production of documents against the plaintiff does not ap­pear to have been seriously pressed either by the defendant No. 2 or by the minor defendants. It is only the defendant No. 1, who took vari­ous adjournments to produce the papers and accounts required and ultimately failed to do so on the ground that he had none to produce. It is only the defendant No. 1, who took vari­ous adjournments to produce the papers and accounts required and ultimately failed to do so on the ground that he had none to produce. The matter thus ended on 5-4-1950, when the Court ordered that the case may be report­ed ready for hearing. Thereafter, nobody ap­pears to have raised the question of production of accounts by the plaintiff until the stage of argu­ments. Nor were the petitions filed on 28-1-1950 of such consequence that non-compliance thereof would entail the extreme penalty of dismissal of the suit. The petitions demanding production of papers and accounts are altoge­ther vague. Indeed some of the documents called for from the plaintiff, for example, the mortgage bond, the deed of gift and the deed of lease, are already on the record. There is also the statement of accounts, Exhibit 2 series. In the circumstances, I am quite unable to find any justification for the additional issue framed by the learned Subordinate Judge in the course of arguments and deciding the same against the plaintiff. (9) Reliance has been placed on section 7 of the Assam Money-Lenders Act, 1934 (Act V of 1934), and it is argued that the required statement of accounts not having been supplied, the plaintiff was not entitled to continue the suit. This contention again was upheld by the learned Subordinate Judge and in our opinion, quite wrongly. It is not disputed that the point of section 7 being a bar to the continua­tion of the suit, was never specifically raised in the written statement of the defendants nor is there an averment in the pleadings of the defendants, whether major or minor, that at any stage a statement of account as provided un­der section 7 of the Act was not supplied to (them on demand. The petitions, which were filed in Court, therefore, could not be a substitute for the de­mand for statement of account contemplated under section 7 of the Money-Lenders Act. The case of the plaintiff on the other hand is that the defendant No. 1 scrutinised the accounts and being satisfied, executed the mortgage bound in question. Ranendra Narayan Purkayastha, the Manager, says that the defendant Kama-khyalal Goenka had current and overdraft ac­counts under which there were outstanding dues of Rs. 86,866-3-3. The case of the plaintiff on the other hand is that the defendant No. 1 scrutinised the accounts and being satisfied, executed the mortgage bound in question. Ranendra Narayan Purkayastha, the Manager, says that the defendant Kama-khyalal Goenka had current and overdraft ac­counts under which there were outstanding dues of Rs. 86,866-3-3. That amount was incor­porated in the mortgage deed and the account in the name of the defendant No. 1 was closed. The defendant No. 1 accepted that position, when the mortgage deed was executed. The evidence further shows that the balance of the consideration was paid in cash. Section 7, even if the section applies to the bank, shows that the money-lender shall on demand in writing made by the borrower at the time of executing the contract or at any time during the continuance thereof, supply to the borrower or if the borrower authorises, to any other person in that behalf a statement sign­ed by the money-lender or his agent. It fur­ther provides that on demand being made and on tender of the prescribed sum for expenses, the money-lender should supply a copy of any document relating to the loan made by him, and where the money-lender fails to comply without any reasonable excuse within one month after the demand, he shall not so long as the default continues, be entitled to sue for or recover any sum under the contract. Here, there is no case at any stage prior to the suit, any such demand had been made by the defendants and refused by the plaintiff. The applications filed by the defendants on 28-1-1950, which was during the pendency of the suit, are vague applications made for produc­tion of all accounts and papers, which in no sense can be regarded as an application under section 7, of the Money-Lenders Act. We are therefore, unable to see how the plaintiff's suit could be defeated on the ground of non-compli­ance with the provisions of section 7 of the Act. It appears to us that this issue was entire­ly out of place. If the defendants actually wanted that certain account books should be produced, the petition should have specifically referred to them and called for those accounts; and if the plaintiff refused to produce them, such inference could be drawn against the plaintiff from their non-production as was per­missible under the law. If the defendants actually wanted that certain account books should be produced, the petition should have specifically referred to them and called for those accounts; and if the plaintiff refused to produce them, such inference could be drawn against the plaintiff from their non-production as was per­missible under the law. The Manager of the plaintiff admits that the old accounts had not been filed, because, they were all lying in Court. It cannot be doubted that proceedings were pending in the Calcutta High Court and there might have been legitimate delay in the produc­tion of those account books. The learned Subordinate Judge appears to have overlooked the consideration that if there was any substance in the demand for produc­tion of accounts, it should have been made much earlier, preferably even before the filing of the written statements. Besides, the defen­dants should have referred to the specific ac­counts, which they wanted and not filed mere­ly vague petitions calling for all kinds of pa­pers and accounts. It is not even clear from the judgment of the learned Subordinate Judge as to whether it was the statement of accounts contemplated by section 7 that was required to be filed or it was the production of certain documents on which according to him the de­fendants were insisting and for the produc­tion of which time had been taken by the plain­tiff. We have already held that on the facts as they are, section 7 of the Act had no applica­tion to the case and the additional issue framed was quite unfounded. (10) The next contention is in regard to the execution of the bond in suit. On this point the main argument has been addressed to us by the learned Advocate General on behalf of the minor defendants. He contended that these minors were entitled to a strict proof of the case. Now so far as defendant No. 1 is concerned, he admits execution of the docu­ment; but he pleads that he executed it under coercion or undue influence. The mother, de­fendant No. 2, does not deny her signature. She pleads that she was made to sign on a stamp­ed paper. There is, however, no evidence given on her behalf, while the evidence of the husband is to the contrary. Kamakhyalal Goenka in his deposition says that the mortgage deed was executed in his house. The mother, de­fendant No. 2, does not deny her signature. She pleads that she was made to sign on a stamp­ed paper. There is, however, no evidence given on her behalf, while the evidence of the husband is to the contrary. Kamakhyalal Goenka in his deposition says that the mortgage deed was executed in his house. He was given the document, which he took inside and got her signature thereon and when he brought it out, the witnesses signed. I will presently con­sider whether this part of the statement as to when the witnesses signed is correct in the light of the evidence given by the plaintiff. It is, however, apparent from the evidence of her husband that the lady did not sign on mere­ly a stamped paper. The husband proves his i signature and that of his wife. In proof of valid execution and registration of the docu­ment, we have the evidence of not only the Manager and the Accountant of the bank, but also of an independent witness, Satyendranath ; Dutta, a school teacher. It is clear from the admission of defendant Kamakhyalal that the j execution and attestation took place at his house. He also admits that the Sub-Registrar ; went to his house for registration of the docu­ment. The evidence of the school teacher, ! Satyendranath Dutta is that he was present when the mortgage deed was executed by de- I fendantg Nos. 1 and 2. The others present in­cluded Hariram Goenka and Durga Goenka. He further says that in the presence of all of them, the defendants Nos. 1 and 2 executed the docu­ment. The witness proves his own signature and those of the other two witnesses, who had signed in his presence. He also states that the defendant No. 1, Hariram and others ex­plained the contents of the document to defen­dant No. 2. According to the witness, execution and registration took place at the same time, when both the defendants Nos. 1 and 2 admitted receipt of the consideration amount. He says that a sum of Rs. 55.000/- was paid in his pre­sence by one Nikhil Dam, who was an employee of the bank. According to the witness, execution and registration took place at the same time, when both the defendants Nos. 1 and 2 admitted receipt of the consideration amount. He says that a sum of Rs. 55.000/- was paid in his pre­sence by one Nikhil Dam, who was an employee of the bank. As to the execution by the lady, defendant No. 2, the witness clarifies in his answer to Court question that the defendant No. 2 was sitting behind a purdah, but the purdah was re­moved when she signed and the money was paid. He also speaks of witness Sailesh Chan­dra Aditya, an employee of the bank and other bank orderlies being present at the time of the execution and attestation of the document by the witnesses. Sailesh Chandra Aditya also says that the document was executed in his pre­sence by defendants Nos. 1 and 2, when defen­dant No. 1 explained the contents to defendant No. 2 before execution. He is the accountant of the bank and he corroborates the evidence of the Manager that before the document was executed, the defendant No. 1 scrutinised his accounts with the bank. The witness also saw the other witnesses, Hariram, Durga and Satyendranath Dutta, wit­nessing execution. He also speaks of the con­tents of the document being explained by the Sub-Registrar to the lady in mixed Hindi and Bengali, while defendant No. 1 had explained the document in his own language. Satyendra­nath Dutta is an independent witness and I see no reason to distrust his testimony as to the execution of the document in his presence and as to the document being explained to the defendant No. 2 by her husband. The fact that the witness himself does not know Hindi is im­material. The point of importance is that he saw the husband explaining the document to his wife before execution. He is further corro­borated by Sailesh Chandra Aditya whom I see no reason to disbelieve. I can quite understand his deposition when he says that the Registering Officer 'Suresh Babu' explained the document in broken Hindi to the lady. It is not an uncommon experience to hear people talking in mixed Hindi and Bengali when they do not know Hindi ade­quately. I can quite understand his deposition when he says that the Registering Officer 'Suresh Babu' explained the document in broken Hindi to the lady. It is not an uncommon experience to hear people talking in mixed Hindi and Bengali when they do not know Hindi ade­quately. The evidence of Satyendranath Dutta is certainly preferable to the evidence of the defendant No. 1 who, though admitting execu­tion by defendant No. 2, says that she did it behind purdah and that the witnesses did not see the actual execution. As to the non-exami­nation of the other two witnesses, it has been found that they are brothers of the defendant No. 1 and in fact, Hariram was present in Court, while the defendant No. 1 was depos­ing. If the defendant wanted to contradict the evidence of Satyendranath, he could have exa­mined Hariram. The defendant admits their presence at the time of execution, but he fences when asked about their signatures on the docu­ment. Evidently, he has not the courage to deny the signatures of those witnesses in proof of execution. The learned Subordinate Judge was wrong in assuming that the statement of Kamakhyalal Goenka, the defendant No. 1, on the point of execution by defendant No. 2 in­side the house had not been challenged. He should have been slow to discard the indepen­dent evidence of Satyendranath and give pre­ference to the interested testimony of Kama­khyalal Goenka. There can be no reasonable doubt on this state of the evidence that the execution of the document by the two defen­dants for themselves and on behalf of the minors and the attestation thereof by the wit­nesses were established. (11) Mr. Lahiri, has however, contended that there is nothing to show in the evidence that the witnesses also signed the document in the presence of the executants. One of the essential ingredients of attestation as required by its definition in S. 3 of the Transfer of Pro­perty Act, 1882 (Act IV of 1882) is that the witnesses must not only see the executant sign or affix his mark to the instrument or receive from him a personal acknowledgment of his signature or mark, but that the witnesses should also sign the instrument in the presence of the executant, though no particular form of attestation is necessary. This is of course not merely a rule of proof, but a rule of substantive law; because, a mort­gage, if it is to be admissible as a mortgage within the meaning of S. 59 of the Transfer of Property Act, it has to be shown that where the principal money secured is one hundred rupees or upwards, and the mortgage is other than a mortgage by deposit of title-deeds, it can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. It is, therefore, contended that attestation had to be duly proved in this case before the document could be treated or acted upon as a mortgage bond; and in the absence of specific evidence that the witnesses also signed in the presence of the executants, attestation cannot be said to have been duly proved. Reliance has been placed on several deci­sions in support of the contention. It would be relevant, however, to refer to only two of them. In Mst. Hira Bibi v. Ram Hari Lai, 52 Ind App :362 : (AIR 1925 PC 203) (A), the suit was to enforce a mortgage and it appeared from the facts found that one of the executants was a pardanishin woman, who had signed the deed behind the purda and that the persons, who signed as attesting witnesses were outside the parda and did not see her affixing the signa­ture; at the trial, however, she admitted hav­ing signed the document. It was contended in those circumstances that under S. 70 of the Indian Evidence Act, 1872, the admission of the party should be sufficient proof of its execution as against that person, though the document might be required by law to be attested. It was held that S. 70 applies only to a document, which is duly attested and that as the mortgage deed was not attested within the meaning of S. 59 of the Transfer of Property Act, it was invalid as against her in spite of her admission. On the same analogy it is contended that the proviso to S. 68 of the Evidence Act also will have no application so as to cure the defect of the omission to prove due attesta­tion of a mortgage bond. Another decision to which I need refer is the decision in Surendra Bahadur Singh v. Thakur Behari Singh, AIR 1939 PC 117 (B). Another decision to which I need refer is the decision in Surendra Bahadur Singh v. Thakur Behari Singh, AIR 1939 PC 117 (B). It was held there that where there is no evidence that the witnesses signed in the pre­sence of the executant, even assuming that it was legitimate to look at the proceedings relat­ing to the registration of the mortgage deed for the purpose of proving the due execution and attestation thereof, it cannot be said that due attestation as required by S. 59 of the Act had been proved. Therefore, the proviso to S. 68 or S. 70 of the Evidence Act could not cure the defect when due attestation of the mortgage bond had not been proved. The learned Advo­cate-General further points out that in the pre­sent case the validity of the execution of the mortgage bond had been definitely challenged in the written statement of the minors. It was, therefore, incumbent on the plain­tiff to prove its execution and attestation ac­cording to law. It must be conceded that the witnesses required to prove attestation has not categorically stated that he and the other at­testing witnesses put their signatures (after having seen the execution of the document) in the presence of the executants. Nevertheless, the fact that they actually did so can be easily gathered from the circumstances disclosed in the evidence. It appears that the execution and registration of the document all took place at about the same time in the house of the defen­dants. The witnesses not only saw the execu­tants put their signatures on the document, but that they also saw the document being explain­ed to the lady by the husband as also by the registering officer. They also saw the executants admit receipt of the consideration, which was paid in their presence. As all this happened at the same time, it can be legitimately inferred that the witnesses also put their signatures in the pre­sence of the executants after having seen them signing the instrument. The sequence of events as narrated by Satyendranath Datta is that in the presence of the witnesses, the defen­dants Nos. 1 and 2 executed the document and Hariram and Durga as well as the witness then signed the same. Two of the witnesses Satyen­dranath and Hariram appear to have signed on every page of the mortgage bond as have the executants themselves. 1 and 2 executed the document and Hariram and Durga as well as the witness then signed the same. Two of the witnesses Satyen­dranath and Hariram appear to have signed on every page of the mortgage bond as have the executants themselves. Registration of the docu­ment, as the evidence shows, followed almost in quick succession thereafter. On these materials it can be safely held that the witnesses must have signed in the pre­sence of the executants, as any other possibi­lity on the facts is reasonably excluded. An illustration in point is supplied by the decision of the Nagpur High Court in Bhiniasingh Kishorsingh v. Fakirchand Nandlal, AIR 1948 Nag 155 (C). In that case, on the evidence it ap­peared that the executant signed in the presence of the two attesting witnesses and the witnesses signed in the presence of each other and there was nothing to show that execution and attestation was not done in the same sit­ting. It was held that there was valid attesta­tion as the witnesses must be deemed to have signed the document in the presence of the executant. There is no suggestion here that the execu­tion and attestation was not done at the same sitting. In fact, the definite evidence here is that the execution and registration took place at the same time. It is, therefore, almost cer­tain that the witnesses must have signed the document in the presence of the executants. The other decision in Kuwarlal Amritlal v. Rekhlal Koduram, AIR 1950 Nag 83 (D), cited by Mr. Dam is not quite apposite. In that case, Bose, C. J., as he then was, held that when attestation is not specifically challenged and when a witness is not cross-examined regarding the details of the earlier attestation, it is suffi­cient for him to say that the document was attested by the other witnesses and himself. That is enough to prove the attestation, which means attestation according to law. If the other side wanted to challenge the state­ment, it was their duty to cross-examine the witnesses along those lines and where this is not done, the party proving attestation is entitl­ed to assume that the mode of attestation was not attacked. That is enough to prove the attestation, which means attestation according to law. If the other side wanted to challenge the state­ment, it was their duty to cross-examine the witnesses along those lines and where this is not done, the party proving attestation is entitl­ed to assume that the mode of attestation was not attacked. It must be remembered here that the defendant No. 1 himself did not challenge the execution of the document, nor is the case of the defendant No. 2 that she signed on a blank stamped paper substantiated. Regard be­ing had to these factors, it can be safely held on the above evidence that the witnesses had duly attested the bond in suit and when Satyen­dranath Dutta and the other witnesses put their signatures on the instrument in proof of attes­tation, they did so in the presence of the execu­tants. (12) The next contention of Mr. Lahiri re­lates to the validity of the registration of the mortgage deed. It is contended that the docu­ment not having been duly presented, the Regis­trar had no jurisdiction to register it. The point that the document had not been duly presented to the Registrar was also never specifically rais­ed in the pleadings; otherwise, it would have been possible for the plaintiff to give adequate evidence on the point. On the face of the instrument, there is of course no endorsement showing who had presented it for registration. But the fact remains that the Sub-Registrar went to the house of the executants, as admit­ted by the defendant No. 1 himself, to register the document and thereafter, the document was admitted to registration. The endorsements on the deed show that a commission was issued under S. 33 of the Indian Registration Act, 1908 (Act XVI of 1908), to the Sub-Registrar of Shillong, for the purpose of enquiring whether the document had been executed by Kamakhyalal Goenka and Biraj-bala, wife of Kamakhyalal Goenka, for them­selves and their minor sons "by whom it purports to have been executed". The endorse­ments further show that having visited the resi­dence of defendant No. 1 on 3rd June, 1946, the Sub-Registrar examined the executants and was satisfied that the deed had been executed by them for themselves and their minor sons, who were identified before him by Hariram Goenka and then the Sub-Registrar admitted the document to registration. The endorse­ments further show that having visited the resi­dence of defendant No. 1 on 3rd June, 1946, the Sub-Registrar examined the executants and was satisfied that the deed had been executed by them for themselves and their minor sons, who were identified before him by Hariram Goenka and then the Sub-Registrar admitted the document to registration. A visit to the residence was perhaps necessary, because one of the executants happened to be a purdanashin lady. Although, therefore, there may be no en­dorsement on the document itself as to who presented it, it must have been presented by some one competent to do so, presumably by Kamakhyalal, who wanted the Sub-Registrar to visit his house for the purpose of registering the document. He admits that the Sub-Regis­trar did go to his house for that purpose and the presumption in the circumstances is that the document was handed over to the Sub-Regis­trar by the husband or both the major execu­tants. This presumption is strengthened by the certificate of registration, as required by sec­tions 59 and 60 of, the Registration Act. The endorsements and the certificate of registration as given under S. 60 of the Act are clearly ad­missible to prove that the document had been duly registered in the manner provided by the Act. It is true that due presentation of the docu­ment is necessary to give jurisdiction to the Registrar to register the same; but mere omis­sion to note on the body of the document as to who presented it to the Registrar does not affect his jurisdiction. At best, it may be re­garded as a case of irregularity and the point not having been specifically raised, it must be assumed that the document had been validly presented to the Registrar who, after due enqui­ries, proceeded to register the same. It is al­ways important to distinguish between a case of illegality affecting the jurisdiction of the Registrar and a mere case of irregularity. If a document is presented by a person not autho­rised to present, it may constitute an illega­lity. There is nothing to show in this case that the document had been handed over to the Re­gistrar by someone not authorised to do so. The circumstances on the other hand indicate that the defendant No. 1 himself presumably handed over the document to the Registrar. There is nothing to show in this case that the document had been handed over to the Re­gistrar by someone not authorised to do so. The circumstances on the other hand indicate that the defendant No. 1 himself presumably handed over the document to the Registrar. In any case, the absence of any note to that effect on the document will not invalidate the regis­tration thereof. Defects in the procedure of the registration and lack of jurisdiction are two different things. Where the Registrar has no jurisdiction to register, as where a person not entitled to do so presents for registration, or where there is lack of territorial jurisdiction or where the presentation is out of time, the regis­tration would be invalid and S. 87 of the Regis­tration Act will not have any effect. On the other hand, if the Registrar having jurisdiction has made some error in the exercise of it, S. 87 takes effect. The principle is borne out by the dictum of the Privy Council in Ma Pwa May v. Chettiar Firm: AIR 1929 PC 279 (E). More­over, in the absence of any evidence to the contrary, it must be presumed that the person presenting the documtnt was competent under the law to do so. (13) Mr. Lahiri has next suggested that on the face of the endorsement it should be assumed that the document must have been executed earlier before it was placed in the hands of the Sub-Registrar and therefore, all the evidence about execution and attestation at the same time as given by the witnesses is falsi­fied. The endorsement "by whom it purports to have been executed" cannot be taken lite­rally to mean that the document had been ac­tually executed and attested. Indeed, this is nobody's case. It merely means that the document purport­ed to have been executed, as the recital show­ed, by the husband and the wife, the two major defendants, for themselves and on behalf of their minor sons, which led the Sub-Registrar to go to the house of the defendants and there as the evidence shows, both execution and re­gistration took place. These contentions there­fore, have to be rejected.. I must observe that even before the learned Subordinate Judge, this question that the document had not been duly presented was not canvassed. These contentions there­fore, have to be rejected.. I must observe that even before the learned Subordinate Judge, this question that the document had not been duly presented was not canvassed. (14) Another point, which is a point of some importance urged by the learned Advo­cate-General, particularly on behalf of the minors, is the question of want of legal neces­sity for the mortgage transaction. He points out that in the plaint itself, there is nothing to show that the mortgage bond was for valid necessity. It is said that some of the proper­ties mortgaged are not the self-acquired proper­ties of the defendant No. 1, but ancestral proper­ties. The defendant No. 1 admits that the parties live in a joint family, and have common mess and that the sons have no separate properties of their own, except what belongs to the family, and he got lands and houses, but no business on partition with his brothers. It is, therefore, argued that legal necessity for the document had to be strictly proved to justify the aliena­tion in question. The consideration for the mortgage bond is Rs. 1,41,000/- out of which a sum of Rs. 86,000/- appears to have been the outstanding dues from the defendant No. 1 pay­able to the bank, which was set off towards the mortgage and another sum of Rs. 55.000/- wag paid in cash. It is true that the accounts of the previous dues payable to the bank have not been produced. But there is definite and reliable evidence to show that this was the outstanding amount in the current and overdraft accounts of the defen­dant No. 1 with the bank, which was later in­corporated in the mortgage bond. This was done after the defendant No. 1 had scrutinised the accounts of the bank and thereafter, the old accounts were closed. The position was thus accepted by the defendant No. 1 and the old accounts were not filed, because they were then lying in the Calcutta High Court. These accounts do not appear to have been challenged at any stage earlier. The bond was executed and registered in June, 1946, and the suit was filed in January, 1948. During all this period there is nothing to show that the defen­dant No. 1 ever challenged the correctness of the accounts. These accounts do not appear to have been challenged at any stage earlier. The bond was executed and registered in June, 1946, and the suit was filed in January, 1948. During all this period there is nothing to show that the defen­dant No. 1 ever challenged the correctness of the accounts. On the contrary, the statements of accounts, which have been filed and duly proved and certified to be true copies from en­tries in the ledger of the Bank (Exhibit 2 series) support the case of the plaintiff. They show that on the date of the mortgage, a sum of Bs. 1,41,000/- was paid to the plaintiff. The amount of course is shown in the ac­counts as having been paid in cash, but this was because it was a fresh account of the defendants with the Bank on the consideration of the mortgage bond in suit. It also shows the various payments from time to time made by the defendants, which were credited in the ac­count, leaving a balance of Rs. 1,29,251/15/- as claimed by the plaintiff. Nothing has been shown to disbelieve this evidence. The evidence further shows that a sum of Rs. 55,000/- was paid in cash as deposed to- by an independent witness Satyendranath Dutta. Though it must be said that the evidence to prove the passing of consideration might have been fuller, but as it is, the evidence is quite definite and reli­able and cannot be discredited. The failure to produce some of the old accounts may have been due to the fact that they were not easily avail­able at the time and were then lying in the Calcutta High Court. It is true that a few petitions were filed on behalf of the minors for production of accounts, but no petition was filed until 28-1-1950. I have already shown that the petitions were quite vague and no definite action could be taken on them. In fact, no serious effort was made to call for the old accounts and the defendants appear to have been satisfied with the statement of accounts as filed. Obviously, the plaintiff could not be expected to produce account books and papers of all kinds on vague applications of that nature and therefore, the plaintiff could not be legiti­mately accused of failure to produce any rele­vant account, which was required by the defen­dants. Obviously, the plaintiff could not be expected to produce account books and papers of all kinds on vague applications of that nature and therefore, the plaintiff could not be legiti­mately accused of failure to produce any rele­vant account, which was required by the defen­dants. Petitions of the kind, which were merely in the nature of a roving enquiry and not meant for production of specific documents or accounts could not be seriously taken notice of. In the circumstances, the evidence of passing of consideration given by the plaintiff must be held to be sufficient. (15) The fact that the amount of considera­tion mentioned in the bond in suit is true and correct is further borne out by the petitions for guardianship filed by the major defendants themselves, just previous to the mortgage transaction. As to what is the legal effect of this proceeding is a different matter; but the genuineness of the petitions are out of question. Kamakhyalal admits having filed the petition for guardianship. The recital in the petition very clearly shows that in the interest of the joint family, namely the major defendants and their minor children, it was essential to take a loan of Rs. 1,41,000/- to save all the family business, which also necessitated, according to the defendants, the filing of the petition for guardianship of the person and property of the minors, including, holding No. 29, Cantonment, Shillong. This petition is dated 28-5-1946 and has been signed by both the defendants Nos. 1 and 2. It is on the above petition that on 31-5-1946 the Additional Deputy Commissioner ap­pointed the parents as guardians of the person and property of the minors and Puthorised them to take a loan of the above sum of Rs. 1,41,OOO/- on the mortgage of the property in question on behalf of the minors also and as their guardians. This was followed by ano­ther petition on the same day, making a similar recital for obtaining a loan of Rs. 1,41,000/- on the mortgage of property No. 29, Cantonment, Shillong, for the benefit of the minors and the whole joint family, and asking for a specific permission of the Court to take the loan and mortgage the property, which permission was duly granted by an order recorded on the body of the petition. 1,41,000/- on the mortgage of property No. 29, Cantonment, Shillong, for the benefit of the minors and the whole joint family, and asking for a specific permission of the Court to take the loan and mortgage the property, which permission was duly granted by an order recorded on the body of the petition. These documents strongly cor­roborate the evidence of the plaintiff that the consideration mentioned in the bond in suit was correct and that the loan was meant for the benefit of the minors also and for saving the family business. Defendant No. 1 in his pleading as well as in his evidence tried to show that the amount he owed to the bank was actually only Rs. 35,000/- and not Rs. 86,000/-, and he pretended that he had accounts to prove that fact; but, he did not file any account in Court to substantiate his assertion. In view of all this evidence, it must be held that the con­sideration mentioned in the bond in suit was correct and that the plea of the defendants that it had been in someway inflated could not be entertained, since there was no evidence worth the name to substantiate such a plea. A. Bank of the position of the plaintiff could not resort to any such dealings. At the time of the transaction some of the original documents, for example, the deed of gift, were handed over to the Bank, which also shows that there was no hide and seek in the transaction. (16) In respect of the previous dues of Rs. 86,000/-, there can be no doubt that it was in the nature of an antecedent debt and as such binding on the minors. It was open to the father, who was the managing member of the joint family consisting of himself and his minor sons, to mortgage even the ancestral property for payment of the antecedent debt. No further proof of legal necessity was necessary and it has not been asserted that the loan was taken for any immoral purposes of the father. The well known decision in the case of Brij Narairt v. Mangla Prasad 51 Ind App 129 : (AIR 1924 PC 50) (F), is an authority in point. But here, the evidence further reveals that the loan was taken for the purpose of the family business. Mr. The well known decision in the case of Brij Narairt v. Mangla Prasad 51 Ind App 129 : (AIR 1924 PC 50) (F), is an authority in point. But here, the evidence further reveals that the loan was taken for the purpose of the family business. Mr. Lahiri has argued that the family business was not the ancestral business, inasmuch as the evidence of Kamakhyalal Goenka shows that he separated from his brothers in 1932 and on partition, he got lands and houses, but no business; and that it was he, who had started his own business some five or six years after separation. Even if this is so, there can be no doubt that Kamakhyalal Goenka and the minors are all members of a joint Mitakshara family. The minors have no separate property and the business, though it is claimed as the separate business of the father, was really in the nature of a family business. There is nothing to show that the father was acting to the detriment of the minors' interest in starting this business, profits whereof were evidently shared by the entire family. That being so, it cannot be said that the loan taken from time to time by the father for the purpose of running this business would not constitute legal necessity of the family. As a prudent and businesslike Manager of the fa­mily, it is open to the father to take loans for the purpose of running a business, which is for the benefit of all the members of the family. All that was necessary to show is that family interest justified the loan and the expenditure. The principle appears to have been very elabo­rately discussed in a Full Bench decision of the Allahabad High Court in Ram Nath v. Chiranji Lal, ILR 57 All 605 : (AIR 1935 All 221) (G). Sulaiman, C. J. there observed:- "It has always been a settled law that money borrowed for the purposes of an ances­tral family business is per se a good justifica­tion for alienation of family property. In such a case the presumption is that the carrying on of the ancestral business is necessary and no further inquiry on the part of the creditor is required. In such a case the presumption is that the carrying on of the ancestral business is necessary and no further inquiry on the part of the creditor is required. As a result of their Lordships' prono­uncement, it is now finally settled that the mere fact that money has been required for a busi­ness newly started by a manager or the father is not in itself sufficient to justify an alienation of the family property. But it has never so far been held that the need of a newly started business taints the transac­tion with illegality so much that even if there be other circumstances they would be of no avail in validating the transaction. It seems to me that the question whether a particular transaction, even though the money was requir­ed for the purposes of a new business, was for legal necessity or for the benefit of the estate in the family is a somewhat distinct question. Where the new business is the separate property of individual members of a joint family, it is quite obvious that money required for its purposes can never be for the benefit of the family or of the family estate at all. In such an event, an alienation of the family pro­perty would be wholly unjustified. On the other hand, if the business, though not ancestral, had previously become the joint family business, then there may be circumstances under which' money required for such business may either be for legal necessity or for the benefit of the family and the family estate." This conclusion was arrived at by the learned Judge after careful discussion of several Privy Council and other decisions on the point and respectfully agree with those observations. In this case, therefore, on the evidence, I have no hesitation in holding that the loan taken by the defendant No. 1 was for the benefit of the joint family business and as such constituted legal necessity binding on the interest of the minors. It was, therefore, open to the defen­dants Nos. 1 and 2 to mortgage the interest of these minors in the properties in question. It was, therefore, open to the defen­dants Nos. 1 and 2 to mortgage the interest of these minors in the properties in question. On this point, it appears that although the reasoning's of the learned Subordinate Judge are against the plaintiff, his finding is not so, inas­much as he says that the defendant No. 1 did contract the loan and he did so both for him­self and for the business of the family. This of course is a palpable error in the judgment; and although I agree with the finding that it was for the purposes of the joint family busi­ness that the loan was contracted by the father and the alienation made, I do not accept the reasons advanced by the learned Subordinate Judge to be valid reasons. (17) There are a few other subsidiary ques­tions, which have been urged on behalf of the respondents. It is urged that the guardianship proceedings were invalid, inasmuch as the Ad­ditional Deputy Commissioner had no power to make any order of appointment without be­ing vested with such a power under the Guar­dians and Wards Act, 1890 (Act VIII of 1890), by the High Court. Incidentally, it is also-urged that he had no power to permit the guar­dians to contract the loan. On behalf of the appellant, the position has not been seriously contested for the obvious reasons that even if the guardianship proceed­ings are ignored as invalid, that would not affect the legal position. The bond in suit has also been executed by the defendants Nos. 1 and 2 as natural guardians of the minors. On the evidence also, there is no doubt that the father was the natural guardian and the head of the joint family, consisting of his minor sons, who lived and messed with him. Therefore, as such it was open to the natural guardians to execute the mortgage bond both for selves and on behalf of the minors. (18) The other question, which has been raised, is about the authority to mortgage hold­ing No. 29 of the Cantonment area, Shillong. It was contended - a contention, which also found favour with the learned Subordinate Judge-that under S. 3 of the Cantonments Act, 1924 (Act II of 1924), and the relevant rules, the property, which was vested in a Cantonment Board, could not be transferred by sale or mortgage without the sanction of the Cantonment authorities. It was contended - a contention, which also found favour with the learned Subordinate Judge-that under S. 3 of the Cantonments Act, 1924 (Act II of 1924), and the relevant rules, the property, which was vested in a Cantonment Board, could not be transferred by sale or mortgage without the sanction of the Cantonment authorities. In the first place, the mortgage bond is not chal­lenged by the Cantonment Board authorities at all and therefore, the question of invalidity for want of a sanction did not arise; but, even if it did, it appears that ex post facto sanction was granted by the Cantonment authorities to the mortgage of the property in question as it appears from the letter dated the 28th April,. 1947 (Exhibit 3). There is, therefore, no sub­stance in this contention. (19) It has been also argued that the pro­perties having been gifted to the minors by virtue of a deed of gift dated 24-8-1938, and as such the defendants Nos. 1 and 2 had no dis­posing power over holding No. 29, situated in the Shillong Cantonment area. The deed of gift has been exhibited in the case. It is indeed a curious piece of document. It purports to convey to the defendant No. 2, Shrimati Biraj Balla, wife of defendant No. 1, certain proper­ties, moveable and immoveable, described in the schedule including holding No. 29, Canton­ment bungalow on certain conditions. The first condition is that the donor constitutes himself the attorney of the donee to conduct all matters affecting the property for and on behalf of the donee. Secondly, the donee is not authorised to alienate or mortgage or transfer in any way any interest in the said property. Thirdly, she is entitled to hold the same during her lifetime as trustee for the children of the donee and after her death, the property vests in the donor absolutely. On the face of it, the disposition appears to be quite illegal and conveys no interest either to the donee or to the children, who purport to be the bene­ficiaries. The document, in my opinion, does not create any interest in present or in future in favour of the donee or the beneficiaries. On the face of it, the disposition appears to be quite illegal and conveys no interest either to the donee or to the children, who purport to be the bene­ficiaries. The document, in my opinion, does not create any interest in present or in future in favour of the donee or the beneficiaries. If the children are held to be the beneficiaries, the entire donor's interest should have vested in them on the death of Mossamat Biraj Balla; instead of that, we find that the interest reverts to the donor himself and the children take nothing. It is, in my opinion, a mere device of Some kind created under the instrument, which has no legal effect. But, in any case, the question does not seriously arise for decision at present, because, both the donor and the donee are parties to the document and so are the alleged beneficiaries. Besides, it is the common case of the parties that this holding was a joint family property and as such, it was not open to the defendant No. 1 to make a gift purport­ing to dispose of the interest of the minors. (20) For all these reasons, it must be held that the learned Subordinate Judge was un­justified in dismissing the plaintiff's suit and his judgment and decree cannot be sustained either in law or on facts. (21) The appeal must, therefore, be allow­ed and the plaintiff's suit must be decreed with costs throughout. D.R.R. Appeal allowed.