( 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. I, for the amendment of the second issue in Original suit No. 117 of 1954. ( 2 ) THE petitioner is the plaintiff and the respondent the defendant in the lower Court. Plaintiffs suit was for the recovery of about Rs. 6,981 due under a hypothecation deed executed by the defendant in his favour. The defendant inter alia pleaded that the hypothecation deed was not validly attested according to law and that the same was not binding on him. To put the contention in the very words used by the defendant, it runs as follows. "defendant denies that the mortgage deed has been validly attested according to law. He therefore submits that it is not binding on him as a mortgage. " ( 3 ) THIS is what the defendant has stated in para 2 of his written statement. The learned Subordinate Judge framed the following issue covering this point. "is the suit document legally defective and therefore is the suit claim not maintainable ?" ( 4 ) THEREAFTER the defendant filed an application I. A. No. I under O. XIV, Rule 5 C. P. C. praying for the amendment of the second issue. He contended that the burden of proof on issue no. 2 as framed was wrongly thrown on him, that the same should have been 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 isssue as now framed as a result of allowing this 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. ( 5 ) IT appears to me what the order of the learned Subordinate judge allowing I. A. No. I cannot be sustained. The pleadings in the case did not warrant the amendment of the issue as originally framed. From a perusal of the written statement of the defendant, it is seen that he does not deny the execution of the suit document. The pleadings in the case did not warrant the amendment of the issue as originally framed. From a perusal of the written statement of the defendant, it is seen that he does not deny the execution of the suit document. He has by implication admitted execution of the document and his signature in it. The learned counsel for the petitioner also did 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, tbe learned counsel for the petitioner also conceded that the document is attested by two witnesses but his contention was that those witnesses who have attested the suit document were not present when the defendant put his signature to it and that, therefore, tbe said attestations are not valid attestations. ( 6 ) NOW tbe point that arises for consideration is whether the learned Subordinate Judge was right in allowing I. A. No. I and in amending Issue No. 2 as originally framed in tho case. Tbe point involved is one of burden of proof. The general rule as to onus of proof of any particular fact is that it lies on the party who alleges it and not on him who denies it ; in other words, the issue must be proved by the party who states an affirmative and not by 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 tho adverse party to rebut it. ( 7 ) THE plaintiff's case is that tbe defendant borrowed money and executed tbe suit hypothecation deed. 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 tho adverse party to rebut it. ( 7 ) THE plaintiff's case is that tbe defendant borrowed money and executed tbe suit hypothecation deed. It is a registered document admittedly bearing the signature of the defendant and the attestations of two witnesses. As pointed out 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 cf the admission 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. ( 8 ) RELIANCE was placed on Section 59 of the Transfer of property Act and Section 58 of the Indian 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 to the defendant. Section 59 of the transfer of Property Act runs thus :"where the principal money secured is one hundred rupees or upwards 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 and attested as aforesaid or except in the case of a simple mortgage by delivery of the property " ( 9 ) 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. 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 of the Transfer of Property Act have prima facie been satisfied in the present case. ( 10 ) AGAIN, Section 68 of the Indian 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. " ( 11 ) 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 thy defendant was correct and that the learned Subordinate judge was not right in allowing I. A. No. I to amend the said issue. ( 12 ) IN the result, the order of the learned Subordinate Judge on I. A. No. I is set aside and this revision petition is allowed with costs. Advocate's fee Rs. 25. --- *** --- .