A. Kumaraswami Pillai vs N. Ramasami Konar

Govinda Menon, J.—Mr. K.S. Desikan for the appellant defendant contends that the mortgage which is sought to be redeemed has not

been proved. In the written statement of the defendant what is stated is that the plaintiff is put to the proof of the truth of the mortgage and the

assignment of the mortgage mentioned in paragraphs 4 and 5 of the plaint. The question is whether this allegation is a specific denial of the truth of

the mortgage. Under proviso to S. 68 of the Indian Evidence Act it is not necessary to call an attesting witness in proof of the execution of any

document which has been registered in accordance with the provisions of the Indian Registration Act unless its execution by the person by whom it

purports to have been executed is specifically denied. What I have to decide is whether putting the plaintiff to proof of the truth of the mortgage is a

specific denial of the execution. I have no doubt whatever that the dubious way in which the written statement is couched cannot in any term be

called a specific denial. What is meant by a specific denial is an unambiguous and categorical statement that the defendant has not executed the

document. If the plaintiff is asked to show that he has got a right to sue, it does not mean that the defendant denies the plaintiff''s right. Learned

Counsel relied upon certain observations of the Judicial Committee at page 767 in Surendra Bahadur Singh v. Thakur Behari Singh (1939) 2

M.L.J. 762=50 L.W. 58. I do not think that these observations in any way help him because their Lordships considered in that particular case

whether it was necessary for the plaintiff to prove the execution and attestation of the document because the learned trial Judge had stated in the

judgment that the pleader who appeared for the defendant hotly contended that the execution and due attestation of the mortgage bond was not

proved against his client, relying upon a portion of the written statement where the defendant had stated that he did not admit the execution of the

mortgage deed. No elaborate discussion is necessary to show that when a person denies the execution of a mortgage it is a specific denial whereas

in the present case there can be no question of any specific denial at all. The lower appellate Court is right on the point. The second question is as

regards the applicability of Art. 134 of the Limitation Act. The transfer which was the first in the chain of transactions was as a result of a Court

sale and therefore Art. 134 cannot be attracted as there is no transfer by the mortgagee. If at all there is a transfer it is only under Ex. B. 4. The

learned Subordinate Judge says that under Ex. B. 4 there is no assertion of any absolute right in the property. The Article applicable is Art. 144

and not Art. 134 of the Limitation Act. The decision of the lower appellate Court is therefore right. The second appeal is dismissed with costs. No

leave.