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HIGH COURT OF NAGPUR
Bose
DASHRATH PRASAD BAJOORAM – Appellant
Versus
LALLOSINGH SANMANSINGH AND ANR – Respondent
Second Appeal No. 512 of 1946
Decided on : 22-12-1950
MORTGAGE - EXECUTION AND ATTESTATION - PROOF - PRESUMPTION - SPECIFIC DENIAL - DEBT CONCILIATION ACT, SECTION 8(2) - DISCHARGE OF DEBT - REPRESENTATIVE CAPACITY - HINDU LAW - RAJGONDS - KARTA'S POWER TO MORTGAGE.
Fact of the Case:
Plaintiff filed a suit on a mortgage deed executed by the defendants. The defendants denied the execution and attestation of the mortgage deed. The trial court decreed the claim, but the lower appellate court dismissed it on the ground that the evidence was not sufficient to prove due attestation.
Finding of the Court:
The court held that the evidence of the plaintiff was sufficient to establish due execution and attestation of the mortgage deed. The court also held that the discharge of the debt under Section 8(2) of the Debt Conciliation Act operated only against the defendant who had applied to the Board and not against the other defendant. The court further held that the Hindu law applied in this case and consequently the defendant had the right and power to mortgage the property.
Issues: 1. Whether the evidence was sufficient to prove due execution and attestation of the mortgage deed? 2. Whether the discharge of the debt under Section 8(2) of the Debt Conciliation Act operated against both the defendants? 3. Whether the Hindu law applied in this case and consequently the defendant had the right and power to mortgage the property?
Ratio Decidendi: 1. The court held that the evidence of the plaintiff was sufficient to establish due execution and attestation of the mortgage deed. The court relied on the presumption of due execution and attestation in the absence of a specific denial. The court also held that the defendants had not specifically denied the execution and attestation of the mortgage deed. 2. The court held that the discharge of the debt under Section 8(2) of the Debt Conciliation Act operated only against the defendant who had applied to the Board and not against the other defendant. The court held that the defendant who had applied to the Board did not do so in a representative capacity. 3. The court held that the Hindu law applied in this case and consequently the defendant had the right and power to mortgage the property. The court held that the defendants were Rajgonds, but the presumption was that they were governed by Hindu law unless the contrary was shown.
Final Decision: The appeal succeeded so far as the second defendant was concerned but failed so far as the first defendant was concerned. The decree of the lower appellate court dismissing the claim as against the first defendant was upheld, but it was decreed against the second defendant. The plaintiff was awarded his costs of all three courts as against the second defendant, but he was ordered to pay the first defendant's costs in all three courts.
Bose, C J—This is a pltf's appeal in a suit on a mtge dated 3-10-1930, Ex. P-3.
2. The defts raised several points in defence which I will consider separately. The first relates to execution & attestation. The defts pleaded simply this ''That paras 1, 2 & 3 of the plaint are denied.'' The first para of the plaint sets out that ''The pltf is the mtgee of the deft's property viz.,....'' The 2nd para sets out the details of the mtge including the names of the mtgee & mtgors, & the 3rd para sets out the reason for loan.
3. The trial Ct framed the following issue on that portion of the pleadings:
whether deft 1 executed the mtge deed with proper attestation & for consideration.
4. The only evidence of execution & attestation is that of the pltf as P.W. 1 & all he says is:
I advance Rs. 1450/- to the defts who executed the mtge deed dated 3-10-1930.
The witness was not cross-examined regarding the details of this execution, nor was he asked a single question about attestation. The question I have to decide therefore is whether that is sufficient in the circumstances of this case to prove execution & attestation. The first Ct decreed the claim but the lower appellate Ct held that the evidence was not sufficient to prove due attestation & accordingly dismissed the claim. It is important to state that the learned Judge did not disbelieve the evidence to prove attestation in a mtge case.
5. First as regards the form of the plaint. It is exactly in form No. 45 in Appen A to the Code fo Civil Procedure All that the pltf need state in a mtge case is that he is the mtgee & then set out the particulars of the mtge. It is not necessary according to that form for him to set out separately that the mtge was duly executed & duly attested. Therefore it is impossible to say that this plaint was not in proper form. It complied with all that the law requires in such a case.
6. Section 59, T.P. Act requires that where the principal money secured is Rs. 100 or upwards a mtge other than by deposit of title deeds can be effected only by a registered instrument signed by the mtgor and attested by at least two witnesses.
7. Next we come to the Evidence Act which sets out how execution & attestation must be proved in cases where attestation is required by law. The body of the section states, (Section 68)
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 for the purpose of proving its execution....
Then follows this proviso:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered...unless its execution by the person by whom it purports to have been executed is specifically denied.
8. A large body of case law has grown up around this section. There is for instance a difference of opinion as to what amounts to a specific denial of execution. The Nagpur view is that when attestation is not specifically denied then the presumption can be called in aid to establish due attestation according to law as soon as execution, is proved or admitted. That was the view taken in Seth Mulchand v. Mt. Janki Narainrao v. Hanumantram, 1930 AIR(Nag) 273, also in Kuwarlal v. Rekhlal, 1950 ILR(Nag) 321. In the last of these cases execution was not admitted but it was proved. An attesting witness was called there but he did not say that he had signed in the presence of the executant. It was held:
when attestation is not specifically challenged & when a witness is not cross-examined regarding the details of the attestation it is sufficient for him to say that it was attested by the other witness & himself. That is enough to prove the attestation. The law will then assume that when the witness swears that it was attested the witness means by that 'attested according to the forms required by law'. If the other side wants to challenge that statement it is their duty, quite apart, from raising it in the pleadin
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