1. This is a defendant's appeal in a suit for foreclosure of a mortgage dated 9th July 1926 executed by the defendant's father on behalf of himself and a minor son who is now dead. The defendant is an after-born son. He challenged the mortgage on a number of grounds but failed in the lower Court, and the suit was decreed against him.
2. The only points raised before us in appeal are as follows: First it is argued that the due attestation of the mortgage is not proved. The lower Court holds that it has been established. In his written statement the defendant denied only the execution of the mortgage and the consideration. He did not state that there was any want of due attestation. Under O. 8, R. 3 of the CPC, it is necessary for a defendant who seeks to challenge any particular fact raised in a pleading to deal with that specifically. The rule runs:
“It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.”
3. But even leaving that on one side, in point of fact one of the attesting witnesses, P.W 1, has been called and he states that the mortgage “has been attested by me and Suganmal.” There is evidence apart from this to show that the father of the defendant signed the mortgage and therefore execution by the mortgagor is established, and that is not contested here. The only point raised here is about the due attestation. It is argued in respect of this evidence first, that the passage quoted, which is all that we have in the evidence, is not sufficient to establish attestation and secondly, that the other attesting witness, P.W 5, was not asked any question about attestation; therefore the attestation has not been duly proved.
4. Section 3 of the Transfer of Property Act, defines what attestation is and Section 68 of the Evidence Act states that where 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 executing, if there be an attesting witness alive…,”
5. But there is an important proviso to this section which runs as follows;
“Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document… unless its execution by person by whom it purports to have been executed is specifically denied.”
6. The execution of the document was specifically denied in the written statement, therefore it was necessary in this case to call one of the attesting witnesses to prove the execution. But that has been done. P.W 1 is one of those witnesses. He has been called and he states that the document was attested by Suganmal and himself and that the mortgagor was present when they both attested the deed. It was argued that this is not sufficient to prove execution as required by S. 68 because when a witness is required to prove due execution he must set forth each of the details of attestation as required by Section 3 of the Transfer of Property Act. It is not enough to say that the document was attested and executed. With this we cannot agree.
7. When attestation is not specifically challenged and 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 and 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. As that was not done here the plaintiffs were entitled to assume that the mode of attestation was not being attacked and there, fore that it was enough for their witness merely formally to prove attestation. Sarkar in his Law of Evidence (Edn. 7, p. 651) quotes Brahmadat Tewari v. Chaudan Bibi, 20 C.W.N 192 : (A.I.R (3) 1916 Cal. 374) where it is said that when a will has been proved to have been duly executed in the presence of witnesses the presumption is that the requirements of the law of attestation were satisfied. Later he refers to a Privy Council ruling in Kundan Lal v. Mt. Musharrafi Begam, 63 I.A 326 : (A.I.R (23) 1936 P.C 207) in support of the view that;
“Where execution was admitted but it was never suggested at the trial Court that the attesting witnesses had not signed in the presence of the executant, such a contention cannot be reasonably raised before the appellate Court.”
8. Of course execution was not admitted in the written statement but it was proved and, as we have Slid, the fact of execution, meaning thereby the signing of the document by the mortgagor, has not been challenged before us. The only point argued is that it was not duly attested. In the circumstances set out above and on the evidence of P.W 1, particularly as he says that the mortgagor was present when both he and the other attesting witness attested the deed, we agree with the lower Court and hold that the document was validly attested.
9. Of the ruling relied on by the learned counsel for the defendant-appellant Bhikari Charan v. Sudhir Chandra, A.I.R (25) 1938 Cal. 702 : (178 I.C 992) is not in point because there first, the fact of attestation was specifically denied in the written statement and secondly, there was no evidence whatever to prove attestation. In such a case of course it will follow that attestation is not proved. The learned counsel for the appellant also relies on an observation where the learned Judge says that attestation has to be proved whether the mortgagor objects or not. Whether that is correct in view of the proviso to Section 68 of the Evidence Act and of the normal rules of pleading, when execution and attestation are either admitted or not denied, is a matter we need not go into because we find here as a matter of fact that there is proof of attestation. As we have said, we hold that the evidence of P.W 1, which we have referred to, is sufficient to establish attestation.
10. In the other ruling Jadunandan v. Surajdeo Narain, A.I.R (17) 1930 All. 223 : (52 All. 434), there was only one attesting witness. That appeared on the very face of the document. Accordingly it was held that the attestation was not proper. With that of course we would agree though as a matter of fact there is a further point which arose in that case on which we need not express any opinion, namely, whether the scribe of a document who does not sign as an attesting witness can be considered to be an attesting witness. On that there is some difference of judicial opinion. However, those facts are not present in the case before us, so all we need hold as regards this decision is that it is not in point.
11. A decision of their Lordships of the Privy Council in Surendra Bahadur v. Behari Singh, A.I.R (26) 1939 P.C 117 : (ILR 1939 KAR 222) was also relied on. There again the facts before their Lordships were not the same as here, and all that the learned counsel wished to rely on was the enunciation of the law regarding attestation which their Lordships set out in their decision. But that carries us no further than the two sections, Section 3 of the Transfer of Property Act and Section 68 of the Evidence Act, to which we have already referred. The problem with which we are dealing, namely, whether it is sufficient to prove attestation if one attesting witness is called and swears that the document was attested by himself and the other attesting witness in the presence of the mortgagor, was not before their Lordships.
12. [Paragraphs 10 to 13 are omitted in the certified copy—Editor.]
13. We were then asked to afford relief against the foreclosure which has been decreed. It was said that as this is a foreclosure mortgage the Court has power to order either sale or foreclosure and should exercise this discretion in favour of the mortgagor and direct that the property be sold instead of being foreclosed. It was brought to our attention that a sum of as 10,000-0-0 has been deposited in Court after the date of the final decree.
14. A Court has no power to direct sale on a foreclosure mortgage unless the mortgage is an anomalous mortgage When it is a mortgage by conditional sale, no option is left to the Court and the decree must be for foreclosure. This is explained in a Division Bench case of this Court Bhagwant Rao v. Damodhar, I.L.R (1938) Nag. 91 : A.I.R (25) 1938 Nag. 112). This, incidentally, was relied on by the learned counsel for the appellant but it is against him. The learned Judges point out at P. 93 that the whole basis of the argument before them was that the mortgages they were considering were anomalous mortgages and not mortgages by conditional sale and, therefore, the Court had a discretion. Again at p. 94 the learned Judges point out that the discretion which the lower Court exercised in directing sale in place of foreclosure
“could only have been done on the assumption that the Court was free to give either one relief or the other. In the case of mortgages by conditional sale, the only remedy is foreclosure.”
15. The learned Judges then point out that the only case in which relief of this kind can be given is when the mortgage is an anomalous mortgage. After discussing the mortgages before them they held that as the point had not been taken in the Court below and as there was some difficulty in the matter they felt themselves free to assume, as the lower Court did, that the type of mortgage which they were considering was anomalous. It is because the mortgages before them were considered to be anomalous mortgages that they felt free to exercise their discretion. As we have said, they point out at p. 94 very plainly that the discretion cannot be exercised when the mortgage is by conditional sale.
16. The mortgage before us is by conditional sale. It is not an anomalous mortgage. Accordingly, following the decision we have quoted, we hold that we have no discretion in the matter and that, therefore, a decree for foreclosure was rightly passed.
17. The last point urged was that the learned counsel for the appellant has not been paid his fees. We were, therefore, asked to award him fees in spite of his not having filed a certificate for it. We would not have been able to do this in any case, but the question does not arise now because his client has failed. The appeal fails and is dismissed with costs.
18. Appeal dismissed.