S RATNA NAIDU Vs. PRAIYANACHARIAR

JUDGEMENT

(1.) We think that, on the pleadings, the question was not raised whether the document Exhibit B was invalid as a mortgage, on the ground that it was not attested by two persons who saw the executant sign the document. Taking it that it was raised by the defendants during the trial, the District Munsif ought to have framed a supplemental issue on this new question, given an opportunity to the parties to adduce evidence thereon and then decided it.

(2.) In the case of Shamu Patter v. Abdul Kadir Rowlhan 16 Ind. Cas. 250 : 35 M. 607 : 16 C.W.N. 1009 : 23 M.L.J. 321 : 12 M.L.T. 338 : (1912) M.W.N. 935 : 10 A.L.J. 259 : 14 Bom. L.R. 1034 : 16 C.L.J. 596 : 39 I.A. 220, a supplemental issue wis raised by the Court (though at a late stage) and there was no contention that the plaintiff had not been given sufficient opportunity to let in evidence on the supplemental issue.

(3.) We request the lower Appellate Court to frame the necessary issue and to give a finding thereon allowing both sides to adduce fresh evidence. [We might remark that neither of the lower Courts has definitely pronounced whether it believes the 1st defendant, the plaintiff s witness No. 2 and defendant s witness No. 1, when they deny that they (plaintiff s witness No. 2 and defendant s witness No. 1) saw the 1st defendant sign the mortgage-deed.