SALAIK CHAND Vs. MTTAMIZ BANO

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for sale on the basis of a mortgage-deed alleged to have been executed by Abdul Quyum, the predecessor of the defendants, on the 24 September 1913, and registered. The particulars of the mortgage were given in full in the plaint. The written statement of Mt. Tamiz Bano, one of the defendants, first of all merely stated that the allegations in the various paragraphs of the plaint with certain exceptions "were not admitted." It then went on to say in para. 9 that the execution, completion and the consideration of the document sued upon was not admitted by the contesting defendant. I may note here that the translation of this paragraph as printed is not accurate. The defendant meant not to admit either the execution, completion or the consideration. The Court below framed the first issue as follows: Is the hypothecation bond genuine and for consideration?

(2.) The parties led evidence on the question of execution as well as consideration, and the plaintiff produced an attesting witness Sheo Prasad and himself went into the witness-box in trying to prove due execution. The Court below found this issue against the plaintiffs and held that the requirements of the law as laid down in Section 67, Evidence Act, were not complied with and "execution for consideration" was not proved. Hence this appeal. In my opinion, the contention urged before us, which does not find place in the memorandum of appeal, that the execution of the bond had not been specifically denied, cannot be accepted particularly in view of the fact that the parties understood in the Court below that the execution of the bond was in dispute and issue was framed and evidence was led on it. The defendant Tamiz Bano did specifically say that she did not admit it. Even if there was some ambiguity, it was open to the Court under the proviso to Order 8. Rule 5, Civil P.C., to call upon the plaintiffs to prove it.

(3.) The main point for consideration is whether the Court below was right in finding that the execution of the document in dispute had not been fully proved.