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TMI Blog1949 (8) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... d before us in appeal 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 ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is case to call one of 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 attestatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signing of the document by 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... again the facts bolero their Lordships 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 again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ef of this kind can be given is when the mortgage is an anomalous mortgage. After discussing the mortgages before them they held that as the point had not been taken in the Court below and as there was some difficulty in the matter they felt themselves free to assume, as the lower Court did, that the type of mortgage which they were considering was anomalous. It is because the mortgages before them we to considered to be anomalous mortgages that they folt free to exercise their discretion. As we have said, they point out at p. 94 very plainly that the discretion cannot be exercised when the mortgage is by conditional sale. 12. The mortgage before us is by conditional sale. It is not an anomalous mortgage. Accordingly, following the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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