Muni Akhayyamma vs Matstry Papaiah

Padmakabhiah, J.—This is a revision petition preferred by the Petitioner-Plaintiff against the order of the learned Subordinate Judge, Civil Station, Bangalore, Allowing Respondent-Defendant''s application, I. A. No. T. for the amendment of the second issue in Original Suit No. 117 of 1954.

The Petitioner is the Plaintiff ind the respondent the defendant in the lower Court. Plaintiff''s suit was for the recovery of about Rs. 8,931/-due under a hypothecation deed executed by the what the Defendant has stated in para 2 of written in statement The learned Subordinate judge framed the following issue covering this point:

Is the suit document legally defective and icrefoi''o is iho suit claim not maintainable?" icreaiter the Defendant Died an application, I. A NCSJ under Order 14 Rule 5 Civil Procedure praying for the amendment of the second issue. He contended that, the burden of-proof on Issue 2 as framed was wrongly thrown on him, that the same should have beet:, thrown on the Plaintiff and that the issue must be so amended as to throw the burden of proof on the Plaintiff. The learned Subordinate judge allowed this application, and the issue as now framed as a result of allowing tills application runs thus:

Has the mortgage deed been validly attested according to law, and if so, is it binding on the Defendant as a mortgage?

As against this order on I. A, No. I, this revision petition is filed.

It appears to me that the order of the learned Subordinate Judge allowing I. A. No. I can not be sustained. The pleadings in the case did not warrant the amendment for the issue as originally framed. From a perusal of the written state ment of the Defendant, it is seen hat he does not deny the execution of the suit document. He limas by implication admitted execution of the document and his signature in it.

The learned Counsel for the Petitioner also not dispute this point. What he has pleaded is that the attestation to the document is not valid. We also see nothing on the face of the document to doubt its genuineness or the attestation it, bears, The document Is attested by two witnesses:.

As a matter of fact, the learned Counsel for the Petitioner also conceded that the document Is attested by two witnesses but his contention vex that those witnesses who have attested the suit document were not present when the Defendant put his signature to it and that, therefore, the said attestations are not valid attestations.

Now the point that arises for consideration is whether the learned Subordinate Judge was right in allowing L A. No. I and in amending Issue 2 as originally framed in the case. The point involved ed is one of burden of proof. The general rule as- to onus of proof of any particular fact that it lies on the party who alleges it and not on''hirn who denies it; in other words, the issue must be proved by the party who states an affirmative and not fry, a party who states a negative.

It is the Plaintiff that is bound, In the first instance, to show that he has a prima facie case. But a Plaintiff on whom the Initial burden of proof lies will be relieved of such burden where the Defendant does not deny what is alleged against him but relies on some new matter which, if true, is an answer to the, claim of the Plaintiff, in which case the burden of proof would lie on the Defendant.

If under the law or on facts, either admitted or proved, a presumption arises in favour of any party, the burden of proof will lie on the adverse party to rebut It. The Plaintiff''s case is that the Defendant borrowed money and executed the suit hypothecation deed. It is a registered document admittedly bearing the signature of the Defendant, and the attestations of two witnesses. As pointed before, there is nothing suspicious on the face of the document to doubt these facts.

Under these circumstances, a presumption arises in favour of the Plaintiff that the suit document has been validly executed and attested, observing all the formalities as required by law. In such a case, it is the person who challenges the genuineness or the validity of the execution and attestation that has to establish his contentions.

In view of the admissions made by the Defendant and the presumptions arising in Plaintiff''s favour, I am of opinion that the learned Subordinate Judge had no justification in allowing I. A. No. I and thus throwing the burden of proof on. the second issue on the Plaintiff.

Reliance was placed on Section 59, Transfer of Property Act and Section 68, Evidence Act. The learned Subordinate Judge has also relied upon these two provisions in allowing I. A. No. I. It appears to me that neither of these sections can be of any avail l:o the Defendant. Section 59. Transfer of Property Act runs thus:

Where the principal money secured is one hundred rupees or upwards a mortgage other than a mortgage by deposit of title-deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.

Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed & attested ae aforesaid or except in the case of a simple mortgage by delivery of the property.

It is not clear how this section helps the Defendant. Its scope is that a mortgage is not effectual or operative unless, it conforms to the requirements of that section. In the present case, the document is admittedly registered signed by the executant and attested by two witnesses. The requirements of Section 59 Transfer of Property Act have prima facie been satisfied in the present case.

Again, Section 68, Evidence Act runs thus:

If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.

This section evidently deals with proof of execution of documents required by law to be attested i.e. the principle underlying this section is that any document not properly proved is not admissible in evidence and should not be used. The learned Counsel for the Defendant was not able to cite any provision or case law directly dealing with burden of proof in such cases.

I am of opinion that the Issue as originally framed throwing the burden on the Defendant was correct and that the learned'' Subordinate Judge was not right in allowing I. A. No. I to amend the said issue.

In the result, the order of the learned Sub-ordinal e Judge on I. A. No. 1 is set aside and this revision petition is allowed with costs.