1949 (8) TMI 27

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....eal 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. 3. 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 Order 8, Rule 3, Code of Civil Procedure, 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 d....

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....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 Section 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, T.P. Act. It is not enough to say that the document was attested and executed. With this we cannot agree. 6. When attestation is not specifically challenged and when a witness is not Cross-examined regarding the details of the attestation it is sufficient for hi....

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....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 dead, we agree with the lower Court and hold that the document was validly attested. 7. Of the ruling relied on by the learned Counsel for the Defendant-Appellant Bhikari Charan v. Sudhir Chandra A.I.R 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 attestati....

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....hips were not the same as hero, 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, T.P. Act and Section 68, 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. Paragraphs 10 to 13 are omitted in the certified copy-Editor. 10. We were then asked to afford relief against the foreclosure which has been decr....