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Dashrath Prasad Bajooram Pltf-Applt. v. Lallosingh Sanmansingh And Another Defts-Resps.
Factual and Procedural Background
This appeal arises from a suit on a mortgage dated 3-10-1930. The plaintiff is the mortgagee of the defendants' property. The defendants raised several defenses, including challenges to the execution and attestation of the mortgage deed. The trial court framed an issue regarding whether the first defendant executed the mortgage deed with proper attestation and for consideration. The trial court decreed the claim, but the lower appellate court dismissed it, holding that the evidence was insufficient to prove due attestation. The present appeal challenges that dismissal.
Legal Issues Presented
- Whether the evidence presented by the plaintiff was sufficient to prove due execution and attestation of the mortgage deed despite the defendants' general denial.
- Whether a general denial by the defendants amounts to a specific denial under Section 68 of the Evidence Act, thereby requiring stricter proof of execution and attestation.
- Whether the discharge of debt by the Debt Conciliation Board operates as a discharge of the mortgage debt against both defendants or only the one who appeared before the Board.
- Whether the first defendant had the authority to mortgage the property of the second defendant, a minor, given the parties' status as Rajgonds and the applicability of Hindu law.
Arguments of the Parties
Defendants' Arguments
- The defendants generally denied paragraphs 1, 2, and 3 of the plaint, which included the plaintiff's status as mortgagee and details of the mortgage.
- They contended that the mortgage deed was not properly executed or attested, challenging the sufficiency of the plaintiff's evidence.
- They argued that the discharge of debt by the Debt Conciliation Board under Section 8(2) of the Debt Conciliation Act operated as a discharge of the mortgage debt, thus barring the plaintiff's claim.
- They claimed that the first defendant acted in a representative capacity before the Debt Conciliation Board, which would affect the discharge's applicability.
- They asserted that as Rajgonds, the defendants were not governed by Hindu law, and therefore the first defendant could not mortgage the property of the minor second defendant.
Plaintiff's Arguments
- The plaintiff relied on the form of the plaint as prescribed by the Code of Civil Procedure, asserting that it sufficiently stated the mortgagee's status and mortgage particulars without separately alleging due execution and attestation.
- The plaintiff argued that under Section 68 of the Evidence Act, where there is no specific denial of execution and attestation, the presumption of due execution and attestation arises once execution is proved or admitted.
- The plaintiff contended that the general denial by the defendants did not amount to a specific denial requiring attesting witnesses to be called.
- The plaintiff maintained that the discharge by the Debt Conciliation Board applied only to the first defendant who appeared before the Board and did not affect the second defendant.
- The plaintiff asserted that Hindu law applied to the Rajgonds in this case, and the first defendant, as Karta of the joint family, had the authority to mortgage the property.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Seth Mulehand v. Mt. Janki, 2 NLR 65 | Presumption of due attestation when execution is proved and attestation is not specifically denied. | Supported the view that attestation can be presumed absent specific denial and cross-examination. |
| Narainrao v. Hanumantram, 26 NLR 277 at p. 281 (AIR 1930 Nag 273) | Same as above: presumption of due attestation under Section 68 Evidence Act. | Followed to support presumption of attestation without specific denial. |
| Kuwarlal v. Rekhlal, ILR (1950) Nag 321 (AIR 1950 Nag 83) | Proof of attestation sufficient if witness states document was attested and is not cross-examined. | Applied to hold that the plaintiff's witness testimony was sufficient in this case. |
| Bhimsingh v. Fakirchand, ILR (1947) Nag 649 (AIR 1948 Nag 155) | General denial of knowledge of bond does not amount to specific denial under Section 68. | Used to illustrate that general denials are insufficient to rebut presumption of due execution and attestation. |
| Jhillar v. Rajnarain, AIR (1935) All 781 | Distinction between general and specific denial of execution. | Referenced but held to have gone too far in light of Privy Council decisions. |
| Laehman Singh v. Surendra Bahadur Singh, 54 All 1051 (AIR 1932 All 527 FB) | Specific denial required for Section 68 to be attracted. | Discussed and distinguished by the court in favor of a more flexible approach. |
| Surendra Bahadur v. Behari Singh, AIR (1939) PC 117 | Specific denial includes non-admission of particular fact; strict proof required in such cases. | Held as authoritative, but distinguishable as the present case involved only general denial. |
| Kundan Lal v. Mt. Musharrafi Begam, 63 IA 326 (AIR 1936 PC 207) | Support for presumption of due execution and attestation absent specific denial. | Quoted to support the court's holding on presumption of attestation. |
| R.M.A.R.M Chettyar Firm v. U. Hataw, 11 Rang 26 (AIR 1933 Rang 6) | Even without specific denial, attestation must be proved. | Distinguished on the basis that the method of proof was not specified; court favored presumption in appropriate cases. |
| Lachman Singh v. Surendra Bahadur Singh, 54 All 1051 (AIR 1932 All 527 FB) | Requirement of specific denial for proof of attestation. | Noted that this case did not deal with absence of specific attack on attestation or due execution. |
| Zaharul Hussain v. Mahadeo, ILR (1948) Nag 621 (AIR 1949 Nag 149) | Proviso to Section 68 applies even if denial is not by mortgagor. | Held not applicable here as there was no specific denial. |
| Hardas v. Ramguljarilal, ILR (1947) Nag 1 (AIR 1947 Nag 61 FB) | Discharge by Debt Conciliation Board operates only against the debtor who appeared before the Board. | Applied to hold that discharge affected only the first defendant and not the minor second defendant. |
| Rajah Chattarsingh v. Roshan Singh, ILR (1946) Nag 159 (AIR 1946 Nag 277) | Presumption that Rajgonds are governed by Hindu law unless proved otherwise. | Applied to hold Hindu law governed the defendants, thus validating the first defendant's authority as Karta. |
Court's Reasoning and Analysis
The court analyzed the sufficiency of evidence regarding execution and attestation of the mortgage deed. The plaintiff's witness testified to advancing money to the defendants who executed the deed, but was not cross-examined on attestation details. The defendants' pleadings contained only a general denial, not a specific denial as required under Section 68 of the Evidence Act to mandate calling attesting witnesses. The court adopted the Nagpur view that in the absence of specific denial and cross-examination, the presumption of due execution and attestation arises once execution is admitted or proved.
The court distinguished cases requiring strict proof where specific denial existed and held that the plaintiff's evidence was legally sufficient to establish due execution and attestation. Regarding the Debt Conciliation Board's discharge, the court held that discharge operates only against the debtor who appeared before the Board, not against co-defendants who did not participate. The first defendant's claim to have acted in a representative capacity was rejected based on evidence of partition and separate holdings among brothers.
On the question of applicable law, the court noted the presumption that Rajgonds are governed by Hindu law unless the contrary is shown. Given the defendants' own pleadings that they formed a joint family with the first defendant as Karta, the court held Hindu law applied, and the first defendant had the authority to mortgage the property, including that of the minor second defendant.
Accordingly, the court upheld the decree dismissing the claim against the first defendant due to discharge but allowed the suit to proceed against the second defendant.
Holding and Implications
The court's final decision was as follows:
The appeal succeeds against the second defendant but fails against the first defendant. The decree of the lower appellate court dismissing the claim against the first defendant is upheld, while the decree of the trial court is reinstated against the second defendant. The plaintiff is entitled to a mortgage decree against the second defendant, and the first defendant is given an opportunity to redeem as per established precedent.
Consequently, the discharge by the Debt Conciliation Board operates only against the first defendant who appeared before it, leaving the second defendant liable. Hindu law governs the transaction, validating the first defendant's authority as Karta to mortgage the property. No new legal precedent is set; the decision applies the Nagpur view on presumptions under Section 68 of the Evidence Act and established principles regarding debt discharge and authority in joint families.
1. 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. 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.”
3. 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.”
4. 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 of 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 of the Transfer of Property 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, (S. 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……”
8. Then follows this proviso:
“Provided that it shall not be necessary to all 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.”
9. 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 stablish due attestation according to law as soon as execution is proved or admitted. That was the view taken in ‘Seth Mulehand v. Mt. Janki’, 2 NLR 65 & ‘Narainrao v. Hanumantram’, 26 NLR 277 at p. 281 : (AIR (17) 1930 Nag 273), also in ‘Kuwarlal v. Rekhlal’, ILR (1950) Nag 321 at pp. 323, 324 : (AIR (37) 1950 Nag 83). 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 pleadings, to cross-examine the witness along those lines.”
10. It is true that case is not precisely in point, but the principle in my opinion applies. What is, said there about attestation applies in my judgment equally to execution because when a witness says a document has been executed & his statement is not challenged regarding the details it would be presumed that there was due execution according to law in just the same way as when a witness says a document was attested it will be presumed that if was attested with all the formalities which the law prescribes for that particular type of document. Much to the same effect is ‘Bhimsingh v. Fakirchand’, ILR (1947) Nag 649 at pp. 654, 655 : (AIR (35) 1948 Nag 155).
11. That however raises the question whether a mere general denial of a mtge or not admitting it can be regarded as a specific denial. It will be observed that the proviso to Section 68 of the Evidence Act speaks of a specific denial. Some meaning must be given to the word ‘specific’. It must mean something over & above a general denial. Accordingly in my judgment it is not sufficient to have a mere general denial to; attract the provisions of S. 68. That was the distinction drawn in ‘Jhillar v. Rajnarain’, AIR (22) 1935 All 781 at p. 784 : (156 IC 45) & in ‘Laehman Singh v. Surendra Bahadur Singh’, 54 All 1051 at p. 1058 : (AIR (19) 1932 All 527 FB). But those decisions must in my opinion be held to have gone too far in view of the decision of their Lordships of the P.C in ‘Surendra Bahadur v. Behari Singh’, AIR (26) 1939 PC 117 : (ILR 1939 KAR 222). In view of what their Lordships have stated it must now be accepted that if a party specifically says that he does not admit a particular fact that amounts to a specific denial within the meaning of the proviso to Section 68 of the Evidence Act. But the P.C decision is, in my opinion, distinguishable.
12. In the P.C case both execution & attestation were expressly not admitted. It was not a case of a mere general denial of the mtge. The written statement there was in these terms:
“The contesting deft. does not admit the execution & completion of the document sued on” & at the trial, the P.C said
“it was contended on behalf of Lachman Singh that the execution & ‘due attestation’ of the mtge bond……had not been proved.”
13. The case is in my opinion different when there is no specific denial or when the fact of execution is not specifically not admitted but there is a mere general denial. As I have said, some meaning must be given to the words ‘specifically denied’. So also some meaning must be given to the provisions of O. 8 R. 3 of the CPC which state that
“It shall not be sufficient for a deft. in his written statement to deny generally the grounds alleged by the pltf., but the deft. must deal specifically with each allegation of fact of which he does not admit the truth……”
14. I do not wish to throw any doubt on the fact that when a deed is required by law to be attested in a particular way attestation must be proved. But each case will depend on its own facts. If attestation, or even if due execution is specifically attacked, then there must be proof & the Cts. will probably require something more than the presumption. But when there is only a general denial & there is no cross-examination of a witness who comes forward to swear to execution regarding attestation then the presumption can be called in aid. As I have said, it all depends on the Circumstances of each case. So far as the law is concerned I hold that given the proper conditions, attestation can be presumed when there is no specific attack on due execution. I stress ‘due’. I am supported in this by the observations of the P.C in ‘Kundan Lal v. Mt. Musharrafi Begam’, 63 IA 326 : (AIR (23) 1936 PC 207), which I have quoted in my judgment in ‘Kuwarlal v. Rekhlal’, ILR (1950) Nag 321 : (AIR (37) 1950 Nag 83). In ‘Bhimsingh v. Fakirchand’, ILR (1947) Nag 649 at p. 654 : (AIR (35) 1948 Nag 155), the plea was that the mtgor “had no knowledge of the bond”. That was held not to be a specific denial of it within the meaning of Section 68 of the Evidence Act.
15. Of the other rulings cited on behalf of the defts.-resps., ‘R.M.A.R.M Chettyar Firm v. U. Hataw’, 11 Rang 26 : (AIR (20) 1933 Rang 6), is the one which goes furthest in their favour. But all that decision holds is that even when there is no specific denial attestation must be proved. The learned Judges do not however say how it can be proved. As I have said, I fully agree that due execution, which in a mtge case includes attestation, must be proved. But the whole question is, how? In some circumstances the presumption would not be sufficient, but that would be for the Ct. of fact to decide. In other circumstances, as here, when there is no real challenge to the fact of due execution it is right to call the presumption in aid.
16. The F.B in ‘Lachman Singh v. Surendra Bahadur Singh’, 54 All 1051 at p. 1058 : (AIR (19) 1932 All 527 FB), on which reliance was also placed does not deal with the case where there is no specific attack on attestation or on ‘due’ execution. As regards ‘Zaharul Hussain v. Mahadeo’, ILR (1948) Nag 621 : (AIR (36) 1949 Nag 149), there was a specific denial, but it was not by the mtgor; & the learned Judges held that the proviso to S. 68 applied even to a case of that kind. That decision therefore has no application here.
17. Hare Krishna Panigrahi…Defendant No. 1, v. Jogneswar Ponda…Plaintiff, *’, AIR (26) 1939 Cal 688 : (187 IC 644); ‘Uttam Singh v. Hukam Singh’, 39 All 112 : (AIR (4) 1917 All 89) & ‘Venkataramayya v. Gattayya’, AIR (14) 1927 Mad 662 : (101 IC 498), they were cited for the proposition that the presumption can be raised only when an attesting witness cannot be found & when attestation is proved by other means, for example by proving the handwriting of the attesting witness. If the learned Judges go as far as that then it does not accord with the Nagpur view, & as I am bound by the Nagpur decisions I follow our own view.
18. So far as the other cases relied on are concerned, ‘Amir Husain v. Abdul Samad’, AIR (24) 1937 All 646 : (ILR (1937) All 723), is a case where there was no specific denial & one attesting witness was called. It was held that was sufficient proof. That therefore is not a case in point here. So also in ‘Hari Nath Ghosh v. Nepal Chandra’, ILR (1937) 1 Cal 507 : (41 CWN 306). All that was said there was that execution means due execution & imports proper attestation. With that I respectfully agree, but in that case there was an express denial of due execution & of attestation. Accordingly S. 68 was attracted.
19. In the other two cases relied on by the learned counsel for the defts.-resps., namely ‘Jiwan Singh v. Dalip Singh’, AIR (16) 1929 All 389 : (115 IC 450) & ‘Jadunandan v. Surajdeo Narain’, 52 All 434 : (AIR (17) 1930 All 223), the facts are not set out & so we do not know whether there was a specific denial in those cases or not. On the whole although there is considerable difference of opinion regarding this matter I prefer the Nagpur view & in any event I am bound by it & accordingly hold that the evidence of P.W 1 was sufficient in law to establish due attestation. This witness has not been disbelieved. Accordingly I hold that there is sufficient proof in this case of due execution & attestation & therefore hold that these two facts are proved.
20. The mtge was executed by two brothers of whom one, the deft. 2, was a minor at the date of the mtge. Sometime after the execution of the mtge deft. 1 went to the Debt Conciliation Board. The mtgee in this case was joined as a party to the appln. He was creditor No. 1. There was also another creditor. The Debt Conciliation Board applied the provisions of S. 8(2) in the cases of both the creditors & discharged the debt. It is urged that operates as a discharge of the mtge here & puts the pltf. out of Ct.
21. The first point as regards this is that the Chairman of the Debt Conciliation Board said in his order after setting out that the debts of both the creditors were discharged, that “Case is rejected under Section 7 of the D.C Act.” It was argued that the Chairman could not discharge the debt of either creditor under S. 8(2) if he acted under S. 7 because S. 7 says
“Provided that the Board may at any time dismiss the appln. if, for reasons to be stated in writing, it does not consider it desirable to attempt to effect a settlement between the debtor and his creditors.”
22. Whereas S. 8(2) can only be attracted when
“If, after examining the debtor, it is in the opinion of the Board desirable to attempt to effect a settlement between him and his creditors.”
23. It is argued that if the Board considers that it is not desirable to attempt to effect a settlement then S. 8 is not attracted & therefore there can be no discharge under S. 8(2).
24. I am unable to accept this reasoning. The Board was not bound to act in the exact sequence prescribed by Ss. 7 & 8. When the matter is first considered the Board after examining the debtor may reach the conclusion that it is desirable to attempt to effect a settlement & then the Board issues a notice. But if after that has been done the creditors do not appear or do not comply with the provisions of the Act & compel the Board to reject their claims or to discharge the debts then obviously if there is no debt to conciliate the Board must do something, &, the only sections under which it can act are Ss. 7 & 14. Section 14 can have no appln. because it states,
“If no amicable settlement is arrived at under sub-s (1) of S. 12, the Board shall dismiss the appln.”
25. It is evident that it is not possible to reach an amicable settlement when there are no debts which the Board can consider because the provisions of the Act rule them out. Section 7 on the other hand states that the Board may dismiss the appln. “at any time” if it does not consider it desirable to attempt to effect a settlement. Clearly there can be no settlement when there are no debts which the Board can consider. Accordingly it can only act under S. 7, but that would not prevent the operation of S. 8(2). I hold that the debt, so far as deft. 1 is concerned, was duly discharged.
26. The next question is whether this operates against deft. 2 also. Deft. 1 alone went to the Debt Conciliation Board. It has been held in ‘Hardas v. Ramguljarilal’, ILR (1947) Nag 1 : (AIR (34) 1947 Nag 61 FB), that when only one of several debtors goes before the Board the discharge operates only against the person applying to the Board & not against the others & that the mtgee can proceed against the others unless of course the person applying applies in a representative capacity.
27. The defts urged in their written statement that deft. 1 went to the Board in a representative capacity. According to the defts.
“The deft. 1 is the Karta of the family & had applied to the D.C Board Murwara in a representative capacity.”
28. That position however is negatived by the evidence of deft. 2 because he says that “During Our father's time we 3 brothers partitioned. We hold -/2/8 share separately in our names.” Now I do not believe this witness altogether. There is nothing to justify the position that there was a partition at the date of the mtge, but this shows clearly that deft. 1 could not have been representing the other because whether there was a partition or not & whenever it took place their attitude was that there was; a partition & therefore one brother could not represent the other. Accordingly I hold that deft. 1 is not proved to have gone to the Board in a representative capacity. Accordingly, though the debt is discharged against deft. 1 the suit can continue against the 2nd.
29. It was then argued that the parties are Rajgonds & are accordingly not governed by Hindu Law. Therefore deft. I could not mtge for the minor brother. That position however is sufficiently negatived by the plea of the defts. here that they formed a joint family of which deft. 1 was the Karta. It can be accepted that Rajgonds are not Hindus but the presumption is that they are governed by Hindu law unless the contrary is shown. That is the presumption applied in ‘Rajah Chattarsingh v. Roshan Singh’, ILR (1946) Nag 159 : (AIR (33) 1946 Nag 277). The other rulings cited, namely ‘Vithoba v. Lalsingh’, 19 NLR 104 : (AIR (10) 1923 Nag 317); ‘Miran v. Hanslal’, 26 NLR 111 : (AIR (17) 1930 Nag 57) & ‘Mt Sarjabai v. Gangaram’, AIR (17) 1930 Nag 35 : (118 IC 871), are not in point because there the parties were Gonds & not Rajgonds. I hold therefore that the Hindu law applied in this case & consequently deft. 1 had the right & power to mtgs the property because on the defts' own showing he was at the time the Karta of the family.
30. The appeal succeeds so far as deft. 2 is concerned but fails so far as the 1st is concerned. Accordingly I uphold the decree of the lower appellate Ct. dismissing the claim as against deft. 1 only but it will now be decreed against deft. 2. The usual mtge decree will follow. The result is that the decree of the first Ct. will now apply as against deft. 2 only but deft. 1 will be afforded an opportunity of redeeming as was pointed out in the F.B in ‘Hardas v. Ramguljarilal’, ILR (1947) Nag 1 : (AIR (34) 1947 Nag 61 FB). The pltf. will receive his costs of all three Cts as against deft. 2 out he will pay deft. 1 his costs in all three Cts.
31. Order accordingly.
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