KUMBARA NARASIMHAPPA Vs. LAKKANNA AND

JUDGEMENT

(1.) This second appeal arises out of a suit on a mortgage bond "filed by the appellant against defendant 1 who is the mortgagor. Defendant 2 was impleaded as he is a subsequent mortgagee, Defendant I remained ex parte while defendant 2 alone contested the suit. He denied the mortgage deed and contended that the plain- tiff and defendant 1 brought about the mortgage deed by collusion with a view to defraud him. He urged that it was not supported by consideration. The trial Court decreed the plaintiffs claim while, on appeal, the civil Judge dismi sed his suit, on the ground that the mortgage bond in suit was not duly proved by the plaintiff. In this appeal also respondent 1 who is the mortgagor remains absent; respondent 2 alone contests this appeal.

(2.) The main contention on behalf of the appellant is that there is no specific denial of the execution of the mortgage bond and hence it was not incumbent on the plaintiff to prove that document by calling an attesting witness. As a result of this contest, three subsidiary questions arise for consideration. Section 68 of the Evidence Act requires that one attesting witness at least has to be called for the purpose of proving the execution of a document which is required by law to be attested. It is indisputable that a mortgage bond is such a document, vide Section 59 of the Transfer of Property Act. But the proviso to Section 68 of the Evidence Act exempts the necessity of calling an attesting witness to prove the execution of such a 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". In the present case, defendant 1 who is the mortgagor has not put in any written statement, with the result that he cannot be deemed to have specifically denied the execution of the document. The contention against the document, if any, is only raised by defendant 2 who is a subsequent mortgagee. The first question to be considered therefore, is whether the denial contemplated in the proviso is one that should bo made by the executant alone or whether it could as well be done by some other defendant. The first appellate Court has, however, held that if any of the defendants to a suit denies the execution, the plaintiff must produce one of the attesting witnesses as required by Section 68. All that the proviso requires in respect of the denial is that it should be a specific denial of the execution of the document. There is nothing to indicate that the denial should be one made by the executant. But the denial should be to the extent that the person by whom the document purports to have been executed has not executed it. The words 'by the person by whom it purports to have been executed' go with the preceding word 'execution' and not with the words 'specifically denied'. What has to be specifically denied is such an execution. It thus follows that the denial need not be necessarily by the executant and that it may be by any one of the defendants interested in the denial of the execution of the document. A similar view has been taken by the Nagpur High Court in the case of Zaharnl Hussain v. Mahadeo Ramji, AIR 1949 Nag. 149. The words 'specifically denied' in Section 68 evidently moan specifically denied by the party against whom the document is sought to be used & not by the executant alone. The denial, there-fore, has to come from the party who is entitled to dispute or is interested in dispating its execution. Hence the denial, if any, by defendant 2 is as good as denial by the mortgagor himself for the purpose of Section 68.

(3.) The next point for consideration is what amounts to a specitic denial and whether there is any such denial in this case by defendant 2. The learned Advocate for the appellant contends that a mere denial of the mortgage transaction is not enough and that there must be specific words to convey that the party denies the execution by the executant and also its attestation by the attestors. As against this, the learned Advocate for respondent 2 urges that all that is needed is that the party should indicate that he does not admit the mortgage. Looking to the wording of the proviso, it is apparent that what the law requires is not a mere denial but a specific denial, which means, not only that the denial must be in express terms but that it should be definite and unambiguous. What has to be specifically denied is the execution of the document. Other contentions not necessarily and distinctly referring to the execution of the document by the alleged executant cannot be covered by the denial contemplated in this proviso. Such contentions may be, for instance, in respect of the consideration for the document or the sham or colourable nature of the transaction evidenced by the document.