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 dismissed 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 . 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 disputing 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 specific 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.
4. The observations of the Privy Council in Surendra v. Behari Singh show that the denial has to be in respect of the execution. One of the contentions in the written statement in that case was 'the contesting defendant does not admit the execution and completion of the documents sued on, nor is receipt of any consideration of the same admitted.' It was contended by the o.ther side that this did not amount to a specific denial by Lachman Singli. In this connection, it was observed :
'Their Lordships cannot accept that contention. It is clear that Lachman Singh in his written statement pleaded that he did not admit the execution of the mortgage deed and it appears from the judgment of the Subordinate Judge that at the trial, the Pleader who appeared for Lachman Singh hotly contended that the execution and due attestation of the mortgage deed in suit was not proved against his client. In these circumstances, in their Lordships' opinion, it must be held that the execution of the mortgage deed by Mt. Jamna Kumar was in fact specifically denied by Lachman Singh.'
5. The learned Advocate for the appellant relies on the decision in Vedachala Chattiar v. Aminabi Ammal : AIR1944Mad121 . Their Lordships held: 'an allegation that the mortgage was a sham and nominal transaction entered into in order to defeat the creditors does not amount to a denial of execution calling, in aid Section 68.' In Yacub Khan v. Guljar Khan ILR 52 Bom 219 : (AIR 1928 Bom 267), the defendants contended that they had no knowledge of the transaction and that, if genuine, it was hollow. Referring to this denial, their Lordships observed :
'The defendants in their written statement had not specifically denied execution within the meaning of Act XXXI of 1926 and therefore it was not strictly necessary for the appellant to call an attesting witness in proof of execution.'
Relying on these authorities, the learned Advocate for the appellant contends that there was no specific denial in the present case. In order to understand the nature of the denial made by defendant 2 in this case, it is necessary to look into the written statement.
6. As already mentioned above, the plaintiff had filed his suit for the mortgage amount basing his claim on the mortgage bond dated 1-4-53 passed by defendant 1 in his favour, as noted in para 2 of the plaint. The denial by defendant 2 is contained in para 1 of his written statement. The material portions of that para may be translated as follows :
'The debt mentioned in para 2 of the plaint is false. This defendant does not admit the mortgage deed referred to in said para .... The suit more-gage deed must have been got up by plaintiff and defendant 1 in collusion for defeating the claim of this defendant. But it is not genuine. It is without consideration.'
The first and last sentences deny positively the debt or consideration. Although the second sentence relates to the mortgage deed, there is no allusion at all to the execution of the document. Thereafter is some un translated portion which mentions that defendant 2 had advanced a loan of Rs. 300/- on 1-5-1951 and that it was in respect of this debt that the 1st defendant passed a mortgage bond in favour of defendant 2 on 4-12-53.
It was to defeat this earlier debt that the plaintiff and defendant 1 are alleged to have colluded and brought into existence the suit mortgage bond. This contention of his practically concedes that defendant 1 must have executed the suit mortgage bond since he and the plaintiff are alleged to have acted in collusion to defeat the earlier debt in favour of defendant 2. This gives a go-bye to any denial of execution by defendant 1.
The penultimate clause, however, mentions that it is not a genuine document. This cannot be understood as meaning a document not executed by defendant I. The want of genuineness alleged is the want of bona fides & creation of a document calculated to defeat the claims of defendant 2. Or it may be that it is not genuine in the sense that it is without consideration. It docs not show that the execution as such has been specifically denied.
7. The learned Advocate for the respondent draws my attention to the decision in Abdul Kahman v. Ghuru Khan, AIR 1944 Oudh 99, where the point under consideration has been discussed. Their Lordships observed ;
'The words 'specifically denied' used in theproviso to Section 68 do not mean more than thisthat the denial in question should relate to thespecific document which is sought to be denied andthat the denial should be unqualified so as to leaveno doubt that the execution of the particular document is denied by the person against whom it issought to be used. It is not necessary that the dedenial to be called a specific denial must be a denialas regards its proper attestation, that is a denial ofthe validity thereof on the ground that it was notproperly attested.'
In this case, the decision of the Privy Council in has been relied upon, and another decision of the Oudh Court reported in Gur Charan v. Ram Bharose Singh, AIR 1943 Oudh 218 has been followed. It is difficult to fellow how this case helps the present respondent 2. As observed by their Lordships, there must be an unqualified denial so as to leave no doubt that the execution of the document is denied by the executant. There is nothing of this sort in the written statement of defendant 2. It is argued by the learned Advocate for respondent 2 that his client alleged that the mortage bond was not genuine which implies that he denied its execution. In order to support this contention, he relies on the decision in Kalicharan v. Surai Rali AIR 1941 Oudh 89. In that case, it was no doubt, held that the denial was specific. His Lordship observed:
'Where, in a mortgage suit the defendant not only denied the execution of the mortgage deed but stated in his written statement that it was not genuine, the denial of execution by the defendant is a specific denial within the meaning of the proviso to section 68 and therefore it is incumbent on the plaintiff to produce at least one of the attesting witnesses.' This clearly shows that there was a denial of execution of the mortgage deed. That is enough to bring the case within the proviso to section 68. If there was a further allegation that it was not genuine, that was an additional contention. This decision does not show that it would be a specific denial if there was a mere allegation that a mortgage deed was not genuine without any denial of the execution ot the mortgage deed. This case does not support the present respondent 2.
8. Turning back to the contentions of defendant 2 in his written statement, it has to be stated that the mere denial of the genuineness of the document is not enough to indicate that the execution of the document was denied. Unless that is denied, there is no specific denial as contemplated by the proviso to Section 68. If so, the plaintiff would be under no obligation to examine an attesting witness in order to prove the mortgage deed. If however, we look to the deposition of defendant 2, who is examined as D.W.I in this case, it will be seen that in clear terms he admits 'with a view to defraud the amounts due to me the 1st defendant has executed the document in favour of the plaintiff.' In the face of this admission ot execution, it would be futile to contend that defendant 2 denied the execution of the document by defendant 1. It would, therefore, be wrong to conclude that the mortgage bond, Ext. P-1, is not proved on the mere ground that an attesting witness has not been examined as required by Section 68 of the Evidence Act The scribe, however, has been examined to prove it in addition to the mortgagee who has been examined as P. W. 2. In my opinion, the document is sufficiently proved by the evidence of the said two witnesses coupled with the admissions of defendant 2.
9. The third question that is urged by the learned Advocate for the appellant is that the scribe of the document who has been examined in this case as P.W. 1 amounts to an attestor. His examination, therefore, satisfies, according to him, the conditions of Section 68. But, in view of the finding arrived at by me, as above, I do not think that it is necessary to consider this aspect ol the case.
10. In the result, the appeal is allowed with costs. The decree of the lower appellate Court is reversed and that of the trial Court is restored.
11. Appeal allowed.