Sara Nisha v. S. Babu, 1983 SCC OnLine Mad 167

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1983 SCC OnLine Mad 167 : (1984) 97 LW 378 : (1984) 2 Mad LJ 152
Sara Nisha and others

v.
S. Babu and another
SHANMNKHAM, J.
14th November, 1983

App. No. 100 of 1979
Appeal against the decree of the Sub-Court Coimbatore, dt. 29th August, in O.S.
586/65.
I. Evidence Act, S. 68—Proof of a document which needs attestation (a mortgige) —Examining of
an attesting witness necessary only when execution is specifically denied—Meaning of “specifically”
— Mere denial not sufficient—Putting the plaintiff to strict proof of the alegation does not amount to
denial—Effect of hot contest of execution in the trial—Duty to examine the attesting witness —
Failure — Held, there is no specific denial by the defendants of attestation in this case and
therefore, non-examination of the attesting witness is not fatal.
II. Tamil Nadu Debt Relief Act (38 of 1972), Ss. 2(1)(3) and (6)—Definitions of “debt”, “debtor”,
“creditor” and “mortgagee” — Absence of any definition of “mortgagor”— Legal Representatives of a
Mortgagor, held, are not entitled to benefits of the Act.
I. It is clear from the plain meaning of S. 68 of the Evidence Act that unless its execution by the
person by whom it purports to have been executed is specifically dented, it shall not be necessary to
call an attesting witness in proof of the execution of the said document. The usage of the adjective
‘specific’ to the word ‘denial’, is not superfluous, but is deliberate. According to the Concise Oxford
dictionary, 6th Edn., ‘specific’ means definite, distinctly formulated. The employment of the said word
is therefore to emphasise that ‘mere denial’ would not attract the operation of the said provision. The
averment ‘that the plaint allegations are denied,’ read disjunctively or conjunctively with the other
averment ‘that the plaintiff is put to strict proof of the allegation’, will not am aunt to specific denial.
On the other hand, it is a mere denial.
[Paras 4, 5]
The very purport of the pleadings is to put the other side with reasonable notice of his case or
defence. When the Legislature employed the word ‘specific’ it intended that the defence about denial
of execution should be unambiguous so as to indisputably convey that the execution is denied, so
that the person who relies upon the document is put on guard.
[Para 5]
In this case there had been no specific denial of due execution or attestation by the appellants
(defendants) and therefore the non-examination of any of the attesting witnesses by the plaintiff is
not fatal to his suit claim.
[Para 9]
50 L.W. 58; —Relied on.
57 L.W. 7 (F.B.); 68 L.W. 417; and
1959 Mysore 148: — Referred to.
When execution or attestation is hotly contested an opportunity is made available to the
Page: 379
party who rests his claim on such document to examine any of the attesting witnesses or to prove
the document as provided in law. If, in spite of such opportunity being given, the claimant fails to
comply with S 68, it is but reasonable to hold that the document is not proved.
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[Para 6]
II. While Ss. 2 and 6 of T.N. Act 38 of 1972 contain definitions for the words ‘debt’, ‘debtor’,
‘creditor’ and ‘mortgagee’ there is no definition so far as ‘mortgagor’ is concerned in this Act. In the
absence of express conferment of the benefit on the legal representative of a debtor or the
mortgagor, it is not possible to say that the benefits extended to the debtor under the Tamil Nadu
Act 38 of 1972, will also be available to his legal representatives. As far as Act 4 of 1938 is
concerned, the benefit is extended to an ‘agriculturist’ with no limitation whatever. But Act 38 of
1972 has intended to provide for the relief of certain indebted persons in the State of Tamil Nadu
[Para 16]
In this case, the heirs of the deceased mortgagor are Mohammadans and are governed by the
Mohammadan Law; what they inherit is the residue of the estate of the deceased; that is his whole
estate less his liability. The liability is therefore that of the deceased, but not that of his heirs. Hence,
it is but reasonable to hold that if the debtor himself could not claim any relief under any of the Debt
Relief Acts, his heirs can have no better claim than the deceased himself had. Further the heirs in the
above circumstances can hardly be called debtors, for, they are bound to discharge the debt of the
deceased not personally but out of the respective shares in their respective heads. In the
circumstances, as the defendants (appellants) are the legal representatives of the deceased debtor,
they are not entitled to invoke the protection adumberated in Tamil Nadu Act 38 of 1972.
[Para 16]
1976 T.L.N.J. 456 (Ramanujam, J.);
1953-2-M.L.J. 252; and 55 L.W. 729(D.B.); —Distinguished.
Second Appeal dismissed.
K.M. Santhanagopalan and C.R. Sathiyendran for Applts.

Mr. V.V. Lakshminarayanan for Respt.
JUDGMENT
1. The defendants who are the legal representatives of the deceased mortgagor, are
the appellants in this appeal The appeal is directed against the judgment and decree
of the learned Subordinate Judge of Coimbatore made in O.S. 586 of 1975. The said
suit is by the first respondent mortgagee for recovery of Rs. 14,568,75 due on the
mortgage exhibited as A-1, dated 6th June, 1968 executed by the deceased Pandit
Jayalani in first respondent's favour. At the time of the suit, as the original mortgagor
was dead, the first respondent filed the said suit, as against the legal representatives
of the deceased mortgagor for the recovery of the amount due on the mortgage deed.
2. In the written statement filed by the first defendant, which was adopted by the
other defendants the following defences were raised. The plaintiff is put to strict proof
that the deceased Jayalani borrowed and executed the suit mortgage. In any event the
interest claimed is usurious and untenable. However, the defendants are entitled to
the benefits adumberated in Tamil Nadu Act 38 of 1972, and hence the debts were to
be scaled down under the said Act.
3. On the above pleadings the learned Subordinate Judge framed the following issues:
(1) Whether the interest claimed is excessive?
(2) To what amount the plaintiff is entitled?
(3) To what relief?
4. It is true that out of the pleadings another point for determination did arise and
that is, whether the plaintiff has proved the borrowing and the execution of the
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mortgage. As a matter of fact, it is contended before me that on the averment in the

written statement there is a clear indication that due execution of the mortgage was
denied, that as the plaintiff had not examined any of the attesting
Page: 380
witnesses as per the mandatory provision of S. 69 of the Evidence Act the mortgage
deed has not been proved according to law and that consequently the suit is liable to
be dismissed straightway. It is therefore necessary, to refer to S. 68 of the Evidence
Act which reads as follow:—
“It 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.”
(Provided that it shall not be necessary to call an attesting witness in proof of the
execution of any document, not being a will which has been registered in accordance
with the provisions of the Indian Registration Act, 1908, unless its execution by the
person by whom it purports to have been executed is specifically denied)”
It is clear from the plain meaning of the said provision that unless its execution by the
person by whom it purports to have been executed is specifically denied, it shall not
be necessary to call an attesting witness in proof of the execution of the said
document, (underlining by me).
5. The short question, therefore, is whether there had been a specific denial in the
written statement. Before I advert to the said question, I shall point out that the
usage of the adjective ‘specific’ to the word ‘denial,’ is not superfluous, but is
deliberate. According to the Concise Oxford Dictionary, 6th Edn, ‘specific’ means
definite, distinctly formulated. The employment of the said word is therefore to
emphasise that ‘mere denial’ would not attract the operation of the said provision. The
averment ‘that the plaint allegations are denied, ‘read disjunctively or conjunctively
with the other averment ‘that the plaintiff is put to strict proof of the allegation’, will
not in my anxious consideration amount to specific denial. On the other hand it is a
mere denial. Viewed from another angle, the above construction gains support. That
is, the very purport of the pleadings is to put the other side with reasonable notice of
his case or defence. When the Legislature employed the the word ‘specific’ it intended
that the defence about denial of execution should be unambiguous so as to
indisputably convey that the execution is denied, so that the person who relies upon
the document is put on guard.
6. It is immediately necessary to refer to the decision of the Privy Council reported in

Surendra Bahadur v. Behari Singh1 , which was very much pressed into service by the
learned counsel for the appellants to support his contention that the averment in the
written statement in the instant case is almost similar to the terms in the written
statement dealt with in the Privy Council case. A careful reading of the decision of the
Privy Council will indicate that the Privy Council was influenced by two vital factors to
hold that there was a spesific denial. They are (1) the defence taken in the written
statement is that the defendant did not admit the execution, and (2). There was a hot
contest in the course of trial about the due execution of the deed. In my opinion, when
execution or attestation is hotly contested, an opportunity is made available to the
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party who rests his claim on such document to examine any of the attesting witnesses
or to prove the document as provided in law. If, in spite of such opportunity being
given, the claimant fails to comply with S. 68, it is but reasonable to hold that the
document is not proved. To reiterate, in the Privy Council case, once at the time of trial
there was a hot contest about the due execution of the document, obviously, the Privy
Council took into consideration that besides the averment in the written statement the
claimant did not care to examine the attesting witness even though he had the
reasonable opportunity and therefore, their Lordships of the Privy Council held that
there was no proof of due execution. I must also emphasise that the Privy Council was
not really concerned only with the question whether there was a specific denial in the
written statement. As a matter of tact, in that case one of the attesting witnesses was
examined, but the High Court did not believe his evidence and therefore, held that the
document was not proved. The Privy Council accepting the findings rendered by the
High Court held that there is no proof, of due execution.
Page: 381
7. Immediately it is relevant to notice whether there was any such hot contest in the
instant case about the due execution or attestation of the mortgage deed. While P.W.
1 had spoken in chief examination that the deceased executed the mortgage deed Ex.
A1, that the attesting witness Muthukrishnan attested Ex. A1, that he could not
remember the other attesting witness, that when the attesting witness signed the
executant Pandit Jayalani saw their attesting the document and that the attesting
witness also did witness Jayalani executing the document, in cross examination some
of those vital statements were not challenged at the instance of the defendants
(appellants herein). In such a case, I am unable to comprehend as to how there was a
hot contest, in the instant case as was done in the Privy Council. Had there been a hot
contest certainly the plaintiff would hive had an opportunity to examine the attesting
witness. Therefore, I am clearly of the opinion that the ratio in the Privy Council-case
would not really help the appellant.
8. Learned counsel for the first respondent plaintiff invited my attention to the
following decisions in support of the contention that the averment in the written
statement in the instant case would not amount to a specific denial within the
meaning of S. 68 of the Evidence Act, viz., Vedachala Chettiar v. Ameena Bi Ammal,1
and Kumaraswami Pillai v. Ragaswami Konar,2 while the other side brought to my
notice the case reported in K. Narasimappa v. Lakkappa3 . I must immediately say that
the decision of the Privy Council was not brought to the notice of the learned Judges
who constituted the Pull Bench in the case reported in Vedachala Chettiar v. Ameena
Bi Ammal1 . It was held by the Full Bench that a plea that the mortgage represented a
sham and nominal transaction does not amount to a specific denial of execution as
envisaged by S. 68 of the Evidence Act. It is possible to contend that a such a plea
implied the admission of the execution. The facts in the other case reported in
Kumarasami Pillai v. Ramaswami Konar1 , are on all fours with the facts of the present
case. In that case, in the written statement of the defendants the contention was the
plaintiff is put to strict proof of the truth of a mortgage mentioned in paragraphs 4 and
5 of the plaint. According to the learned Judge, such a plea would not mean that there
was a specific denial of the due execution of the mortgage. With great respect to the
learned Judge, I adopt his ratio. Further even the decision of the Mysore High Court
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does not support the appellant. The relevant averment in the written statement in that
case proceeded that the document is not a genuine document. There were other
averments peculiar to that case, for, it is further alleged that the plaintiff and the first
defendant have colluded and brought into existence the mortgage deed. It is in those
circumstances, the learned Judge of the Mysore High Court held that the above plea
would not amount to specific denial of the execution so as to attract S. 68 of the
Evidence Act.
9. In the foregoing circumstances, I have no hesitation to conclude that there had

been no specific denial of due execution or attestation by the appellants (defendants)
and therefore the non examination of any of the attesting witnesses by the plaintiff is
not fatal to his suit claim.
10. The other question that falls for consideration is whether the appellants are
entitled to the benefits extended to the debtors under Tamil Nadu Act 38 of 1972. At
the outset it is useful to examine whether any guidance can be had from the
provisions rendered under the Madras Act 4 of 1938, i.e., Tamil Nadu Agriculturists
Relief Act. The learned counsel for the appellant strongly relied on the decision of
Ramanujam, J., reported in Rajammal v. Janaki Ammal and others4 . The learned Judge
has held that it can therefore be taken to be well established that the benefit conferted
by the Act will be available not only to the original debtor but also to his legal
representatives and assigns and it is not necessary that the legal representives and
assigns should be personally liable for the debt.
Page: 382
11. The other decision cited by the learned counsel for the appellants is the ruling
reported in Nageswaraswami v. Viswasundara Rao1 . The passage that is pressed into
service is found in page 256 and is as follows:—
“It is not necessary that the applicant for relief himself should be liable for the debt on
the date that the Act came into force. The right to claim relief as is well settled by the
decisions (vide Perkappa v. Sellapa2 , of the Madras High Court is not confined to the
person who originally contracted the debt, but is available to his legal representatives
and assigns as well; nor is it necessary that the applicant should be personally liable
for the debt.”
12. The learned counsel also referred to the definition of ‘person’ found in S. 3(i) of
the Tamil Nadu Act 4 of 1938, and the definition of the word ‘debtor in S. 2(3) of
Tamil Nadu Act 38 of 1972. According to the learned counsel there is practically no
difference between the two. If a legal representative is entitled to claim benefit under
Act 4 of 1938, it would automatically follow that the legal representative of the
‘debtor’ under Tamil Nadu Act 38 of 1972 is also entitled to claim the benefit under
the Act provided every one of them is individually a debtor within the meaning of the
Act. The learned counsel also relied upon the decision of the Division Bench reported in
Kona Hasan Fathima Bivi v. Mohammed Muhaideen Nachiar3 .
13. After my careful consideration, I am of the view that the decisions rendered under
the Tamil Nadu Act 4 of 1938 can hardly be looked into for guidance in construing the
provisions of Act 38 of 1972. The foremost consideration which prevailed upon me to
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take that view is that the provisions of Act 4 of 1938 are extended to an ‘agriculturist’
whether the debt is incurred by him or the debt had become payable by the legal
representative of the deceased notwithstanding the fact that the deceased is not an
agriculturist. Such is not the case in Act 38 of 1972. The definition of ‘agriculture’ in
the Act IV of 1938 means a person who—
(a) has a saleable interest in any agricultural or horticultural land in the State of Tamil
Nadu which is assessed by the State Government to land revenue which shall be
deemed to include peshkush and quit rent, or which is held free of tax under a grant
made, confirmed or recognised by Government; or
(b) holds an interest in such land under a landholder under the Tamil Nadu Estates
Land Act, 1908 (Tamil Nadu Act 1 of 1908) as tenant, ryot or under-tenure holder; or
(c) holds an interest in such land, recognised in the Malabar Tenancy Act, 1929 (Tamil
Nadu Act XIV of 1930); or
(d) holds a lease of such land from any person specified in sub-Cl. (a) (b) or (c) or is a
sub-lessee of such land.
14. S. 7 defines the debts payable by agriculturists to be scaled down, which provides
thus:—
“Notwithstanding any law, custom contract or decree of court to the contrary, all debts
payable by an agriculturist on the 1st March, 1972, shall be scaled down in accordance
with the provisions of this Chapter.”
These two definitions make it amply clear that if a debt is payable by agriculturists as
on 1st March, 1972, the same is liable to be scaled down as provided under the Act
irrespective of the fact whether the debt was contracted by the said agriculturist or by
his predecessor-in-title, who was not an agriculturist.
15. If we turn to the preamble to the Act 4 of 1938, it is seen that the said Act is
enacted to provide for the relief of certain indebted agriculturists in the State of Tamil
Nadu. That will also indicate that the relief is extended to an agriculturist irrespective
of whether he has personally borrowed or became liable to pay as legal representative
of the deceased though the deceased was not the agriculturist. The material
consideration, therefore, is whether the debt was owing by an agriculturist as on 1st
March, 1972.
16. If we turn to the coresponding provisions, viz., S. 2 in Act 38 of 1972, we find

‘debt’ and ‘debtor’ defined as under:
Page: 383
‘debt’ means any liability in cash or kind whether secured or unsecured due from a
debtor whether payable under decree or order of a civil or revenue court or otherwise,
but does not include rent as defined in Cl. (9) and
‘debtor’ means any person from whom any debt is due. Proviso to S. 2 in Tamil Nadu
Act 38 of 1972, enumerates exemption. It is necessary to refer at this stage the
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definition of ‘creditor’ and mortgagee in this Act. S. 2(1) defines creditor as follows:
“‘creditor’ includes his heirs, legal representatives and assigns.”
S. 6 defines mortgagee as follows—
“‘Mortgagee’ includes his heirs, legal representatives and assigns”.
There is no definition so far as ‘mortgagor’ is concerned in this Act. In the absence of

express conferment of the benefit on the legal representative of a debtor or the
mortgagor, I am unable to hold that the benefits extended to the debtor under the
Tamil Nadu Act 38 of 1972, will also be available to his legal representatives. As earlier
pointed out by me, so far as Act 4 of 1938 is concerned, the benefit is extended to an
‘agriculturist’ with no limitation whatever. But Act 38 of 1972 has intended to provide
for the relief of certain indebted persons in the State of Tamil Nadu. It is significant to
notice that in this case, the heirs of the deceased mortgagor are Mohammadans and
are governed by the Mohammadan Law; what they inherit is the residue of the estate
of the deceased; that is his whole estate less his liability (underlining is by me). The
liability is therefore that of the deceased, but not that of his heirs Hence, it is but
reasonable to hold that if the debtor himself could not claim any relief under any of the
Debt Relief Acts, his heirs can have no better claim than the deceased himself had.
Further the heirs in the above circumstances can hardly be called debtors, for, they
Are bound to discharge the debt of the deceased not personally but out of the
respective shares in their respective heads. For instance, if the hypotheca was found to
be insufficient even after the scaling down on the assumption that the heirs are
entitled to protection, would they be personally liable for such unsatisfied claim? For
the said question, the learned counsel for the appellants unhesitatingly answered, they
are not. Indeed, in law also they are not liable. In my opinion, it is but legal and
equitable to hold the convene to be true. It is not in dispute that the estate is subject
to property tax for more than Rs. 1,200 for the relevant period referred to in in S. 2(3)
(iii) of Act 38 of 1972. In the circumstances, I have to hold that as the appellants are
the legal representatives of the deceased debtor, they are not entitled to invoke the
protection adumberated in Tamil Nadu Act 38 of 19722.
17. Yet another point to be dealt with is whether the interest claimed in this action is
usurious. The rate stipulated in the mortgage deed is 12 per cent per annum and in
default thereof 15 per cent per annum. Taking into consideration the present interest
rate adopted by the Nationalised Banks and the rupee value, the interest claimed at
12 per cent and in default thereof at 15 per cent cannot be termed to be usurious.
Further the suit is instituted in 1976 which came to be disposed of in appeal by me in
1983. During the interrugnum the respondent has lost the money value. Taking all
into consideration, it is not possible to entertain even the defence that the rate of
interest claimed is usurious.
18. The result is the appeal fails and is dismissed, but in the circumstances without
costs.
VCS.
———
1. A.I.R. 1939 P.C. 117=50 L.W. 38.
1. 1944 M.W.N. 33=57 L.W. 7 (F.B.).
2.
68 L.W. 417.
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3. A.I.R. 1959 Mysore 148.

1. 1976 T.L.N.J. 456.
1.
1953-2-M.L.J. 252.
2. 1938-2-M.L.J. 1068.
3. 1942-2-M.L.J. 506=55 L.W. 729.
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Sara Nisha v. S. Babu, 1983 SCC OnLine Mad 167

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SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.

Page 1 Monday, June 27, 2022

Sara Nisha and others

14th November, 1983

Second Appeal dismissed.

K.M. Santhanagopalan and C.R. Sathiyendran for Applts.

(1) Whether the interest claimed is excessive?

(2) To what amount the plaintiff is entitled?

(3) To what relief?

mortgage. As a matter of fact, it is contended before me that on the averment in the

6. It is immediately necessary to refer to the decision of the Privy Council reported in

9. In the foregoing circumstances, I have no hesitation to conclude that there had

16. If we turn to the coresponding provisions, viz., S. 2 in Act 38 of 1972, we find

“‘creditor’ includes his heirs, legal representatives and assigns.”

S. 6 defines mortgagee as follows—

“‘Mortgagee’ includes his heirs, legal representatives and assigns”.

There is no definition so far as ‘mortgagor’ is concerned in this Act. In the absence of

3. A.I.R. 1959 Mysore 148.

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