JUDGMENT Pathak, J. l. Plaintiff No.2 having lost the suit in both the Courts below has filed the present second appeal. 2. The appeal was admitted on the following substantial question of Law: Whether document (Ex. P-3) is valid and supported by consideration, enforceable in law or void wholly or partially ? 3. Narbada Prasad, now respondent No.4, and Chhoteram both are real brothers. Narbada Prasad being eldest filed a suit for cancellation of sale-deed, Ex. P-2; on the allegation that they are Bhumiswami of Khasra No. 132 area 1.898 hectares, here-in-after called suit land, situated in village Badnager, Tahsil Narsingbarh, District Rajgarh. About Rs.750/- was outstanding due against plaintiff No.2 Chhoteram payable to defendant No.1 Kunjbiharilal. Therefore, Kunjbiharilal proposed if Chhoteram delivered possession of survey No. 132 by way of mortgage to him for a period of two years, the loan shall stand liquidated. This was accepted by Chhoteram. Kunjbiharilal obtained his signature on it and also got it registered. Chhoteram signed the document without knowing its contents. No consideration, much less, Rs.1,500/- were paid to them. The Sub-Registrar also did not enquire from him as to the receipt of consideration. On 27-12-1969, the plaintiffs came to know the real nature of the document that it was a sale-deed when Kunjbiharilal applied for mutation for his name on that basis. The document is null and void having been obtained by undue influence and misrepresentation. Attesting witnesses to the sale deed viz. Bal1abhcharan and Chand Khan, were joined as defendants Nos. 2 and 3. 4. On 2-11-1971, the defendants filed a joint written statement opposing the suit. In special pleadings, they submitted that on 25-12-1959, both the plaintiffs came to the shop of defendant No.1 and offered to sell the suit land. On that offer, the defendant No.1 entered into an oral agreement to purchase the suit land on consideration of Rs.1500/-. The plaintiffs delivered possession of the land without the standing crop. The parties agreed that after harvest the plaintiffs will give half the yield, and actually gave one quintal of the wheat in Baisakh. On 26-12-1969, the plaintiffs came along with defendant No.3 Chand khan as their witness and after receipt of Rs.1500/- which was also admitted before Sub-Registrar, executed the sale-deed. On 1-8-74, it was pleaded in alternative that the plaintiff No.2 introduced one person who was personally not known to him, that he was Narbada Prasad. On 26-12-1969, the plaintiffs came along with defendant No.3 Chand khan as their witness and after receipt of Rs.1500/- which was also admitted before Sub-Registrar, executed the sale-deed. On 1-8-74, it was pleaded in alternative that the plaintiff No.2 introduced one person who was personally not known to him, that he was Narbada Prasad. Said Narbada Prasad, put his thumb impression on the sale-deed. If for any reason, the Court comes to the conclusion that plaintiff No.1 did not affix his thumb impression on the deed, the sale-deed to the extent of half of the suit land alone be declared invalid on condition 'that they refund Rs.750/- i.e. half of the consideration. 5. The learned trial Court held that the sale-deed was not obtained by defendant No. 1 by misrepresentation or under influence. The plaintiffs also failed to prove the agreement to mortgage the suit land. Plaintiff No.1 neither appeared before the Sub-Registrar nor he put his thumb impression on the sale-deed. Plaintiff No.2 brought another person and obtained. This thumb impression on the deed by misrepresenting to the defendant No.1, that he was Narbada Prasad. The defendants failed to prove that on 25-2-72, the plaintiffs approached defendant No.1, and entered into an oral agreement or delivered possession of the land to him, or that plaintiff No 2 gave one quintal of wheat to Kunjbiharilal. On these findings, the sale deed (Ex. P-2) was declared to be null and void so far as plaintiff No. 1 Narbada Prasad's 1/2 interest is concerned. The claim for refund of Rs.750 was dismissed. 6. Plaintiff No. 2 Chhoteram filed first appeal which was dismissed. Hence this second appeal. 7. The first question for decision is whether the execution of document (Ex. P-2) is proved. Both the Courts found that the plaintiff No.1 had not put his thumb impression on it. Kunjbiharilal admitted that he was not definite if the thumb impression was put by real Narbada Prasad. Ballabhcharan (D. 2), in examination in-chief, stated that Chhoteram signed and Narbada Prasad put his thumb impression. In cross-examination he admitted that Narbada Prasad had not put his thumb impression on the sale-deed. The witness could not state who scribed the document, or who obtained Chhoteram's signature and the thumb impression purporting to be of Narbada Prasad on the document. No consideration was paid in his presence. In cross-examination he admitted that Narbada Prasad had not put his thumb impression on the sale-deed. The witness could not state who scribed the document, or who obtained Chhoteram's signature and the thumb impression purporting to be of Narbada Prasad on the document. No consideration was paid in his presence. He was merely informed that the land was sold for Rs.1,500/- Even Kunjbibarilal ( D. W. I) nowhere states who typed out the sale deed. All the same, he states that the deed was read over to him. Consideration of Rs.l,500/- was paid to Chhoteram a day before in his house. Chhoteram's brother Narbada Prasad had also come at that time. In cross-examination, the plaintiffs succeeded in extracting his ad mission, that the sale-deed was scribed by his younger brother B.M. Gupta, Advocate, and the thumb impression alleged to be of Narabada Prasad was attested by his clerk Manohar. The other attesting witness Ballabhcharan (D. W. 2) is his uncle. The document was submitted for registration by Vakil Saheb. No other witness was examined to prove the execution of the sale deed (Ex. P. 2) Chhoteram (P. W. 3) stated that in lieu of old dues of Rs.750/- he mortgaged the land and had not sold it to Kunjbiharilal. Narbada Prasad was not there nor he or any person as Narbada Prasad to put his thumb impression in Ex. P-2. The deed was not read over to him. No question was put to him, if he signed the deed. 8. On scanning the statements of all these witnesses, I do not find any poor of the fact that Chhoteram signed the deed after knowing the contents of Ex. P. 2 thereof. Kunjbiharilal (D. W. 1) failed to state that Chhoteram signed it or that he accepted the contents as correct. D.W.2-Ballabhcharan's statement is only with regard to the signature of Chhoteram. He too has nowhere stated that the document was either read over to him or Chhoteram personally read it and signed thereafter. 9. At this stage it may also be examined whether the plaintiffs executed Ex. P. 2 as a sale-deed or as a mortage-deed. In Mandas v. Manbai [ 1972 JLJ 632 ] it was held that the vendor is entitled to prove that the sale was nominal and no interest passed to the purchaser under the deed. 9. At this stage it may also be examined whether the plaintiffs executed Ex. P. 2 as a sale-deed or as a mortage-deed. In Mandas v. Manbai [ 1972 JLJ 632 ] it was held that the vendor is entitled to prove that the sale was nominal and no interest passed to the purchaser under the deed. The onus in such a case will be on the person who pleads contrary to the tenor of the document. The plaintiffs attempted to discharge their onus by proving that no consideration was paid to them nor they delivered possession of the suit land. Defendant's defense viz. the possession for the suit land was delivered and one quintal wheat was also given, was found to be false. Both the Courts below held that Narbada Prasad did not put his thumb impression on Ex. P. 2, Kunjbiharilal D. W. 1 stated that Rs.150/-was paid to Chhoteram on 25-2-72 at his residence, which is contrary to his plea in para 8 of W. S., that the amount was paid in Narsingargh on 26-12-72. He further admitted that the sale-deed was scribed by his younger brother, an Advocate and the disputed thumb impression was attested by his clerk Manohar. The document was presented for registration by Vakil Saheb. The plea that Chhoteram brought a stranger with him as Narbada Prasad, was raised for the first time by amendment after about three years of the filing of the written statement Thus, prima facie burden stood discharged by the plaintiffs and it was for defendant No.1 to establish due execution of the deed. 10. In Bulakidas Hardas v. Chotu Paikan [AIR 1942 Nag. 84], it was held that mere proof of the fact that certain document was scribed certain person can hardly go to prove that the document was executed by the person whose name appears in it as an executant The certificate of registration cannot serve as substantive evidence of execution but may be considered for the purpose of corroboration. In Gopaldas and others v. Thakurji and others [AIR 1943 PC 83], it was held that the registration endorsement cannot prove validity of execution. In the light of these cases, an the evidence adduced by the parties it must be held that the execution of the sale deed is not proved. 11. Both the Courts below did not examine the real point in controversy. In the light of these cases, an the evidence adduced by the parties it must be held that the execution of the sale deed is not proved. 11. Both the Courts below did not examine the real point in controversy. They did not even marshal the evidence led by both the sides. Defendant No. 1's statement that a person was brought as Narbada Prasad by Chhoteram, was accepted too readily even without considering Chhoteram's denial and that the plea to the effect was introduced through an amendment long after filing of the written statement. Defendant No. 1 is a businessman and would not stake Rs.1,500/- without obtaining any receipt to that effect, even though the possession of the land was not delivered to him. It is also difficult to accept that having paid Rs.1500/-, defendant No. 1 would not bother to verify whether the person accompanying Chhoteram was impersonating as Narbada Prasad. It appears that since the document was scribed and typed out by his own younger brother an Advocate and the forged thumb impression was attested by his clerk, defendant No 1 introduced a story through amendment that the other person was brought by Chhoteram and he introduced him a Narbada Prasad whom he did not know personally, as a shield in the event of a criminal prosecution. 12. Prima facie the execution of the sale deed is shrouded in suspicious circumstances and it must be held that defendant No. 1 failed to prove due execution. The Courts below attached much significance to Chhoteram's failure to raise any objection in the mutation proceedings. This omission on his part will not prove the genuineness of the transaction. The other circumstance taken note of is the endorsement made by the Sub Registrar. That is a circumstance to corroborate execution but is not a substantive evidence. None of the material facts and the probabilities of the case was borne in mind by the Courts below. Therefore, the finding that the sale-deed was executed by Chhoteram must be set aside. 13. Assuming the sale-deed is taken as validly executed by Chhoteram, the next question for determination is whether a partial declaration of the sale-deed as void will result in vitiating the entire transaction. In Umar Baksh v. Mul Raj [AIR 1942 Lah. Therefore, the finding that the sale-deed was executed by Chhoteram must be set aside. 13. Assuming the sale-deed is taken as validly executed by Chhoteram, the next question for determination is whether a partial declaration of the sale-deed as void will result in vitiating the entire transaction. In Umar Baksh v. Mul Raj [AIR 1942 Lah. 86] it was held as under :- "If the intention of the parties to an agreement to sell is that nobody would agree to sell his share unless all the: others also agree to sell their shares, it cannot be held that where one of them had failed to sign the document it was a complete document. On the other hand, if the sale are not interdependent in the sense that each vendor might well have sold his share of the property without reference to the sale by others and what really should have been a number of separate sales are rolled into one because of convenience, then the fact that in the agreement to sell one of the vendors had not joined would not affect Its validity as between the vendee and the vendor who had signed the agreement to sell. The question of intention has to be settled by reference to the terms of the document and to the circumstances of the case." 14. In Nethir Menon v. Gopalan Nair [ILR 39 Mad. 597] it was laid down that if a document is drawn up in the names of several persons and it is the intention of the parties that all should execute it, it will be incomplete and inoperative till all have done so. It was further added that it is a question of fact in each case as to what was the intention of the parties Most of the case laws bearing on this point, has been reviewed by Govinda Menon, J. in Kannia Gupta v. Subbarami Reddi [(1949) II MLJ 390] wherein it was held as under: "If a document is drawn up in the name of several persons and it is the intention of the parties that all should execute it, it will become incomplete and inoperative till all have done so but it is a question of fact in each case as to what was the intention of the parties,. 15. 15. Kunjbiharilal pleaded that both the plaintiffs entered into the agreement to sell the suit land held by them jointly. Both approached him a day before the execution of the deed. Unless both the plaintiffs signed, the sale-deed cannot be held valid. Once it is found that Narbada Prasad was not a party to the sale-deed Ex. P. 2 although he is described as a vendor No. 1 and that the land is jointly owned by them, the execution by one alone must invalidate the deed. On the findings of the Courts below, it must be held that whole transaction evidenced by Ex. P. 2 must fail. 16. The appeal is allowed with costs. The judgment and decree passed by the Court below are hereby set aside instead, the plaintiffs' suit is decreed in full by declaring the sale-deed (Ex. P. 2) as null and void. Counsels fee Rs.200, - if certified.