Decided on January 17,1956

Muni Akhayyamma Appellant
Matstry Papaiah Respondents


PADMAKABHIAH, J. - (1.)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.
(2.)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.

(3.)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.


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