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.