1. This is a vendor and purchaser summons raising a question whether the defendants have made out a marketable title to certain leasehold property, which by an agreement in writing dated July 21, 1934, the plaintiff agreed to purchase from the defendants and one Tulsidas Valji.
2. The title begins in the year 1901 with a mortgage, exhibit A, which was executed by Omar Pir Mahomed, the then owner, on December 21, 1901, in favour of Dossibai Nowroji Gazdar. At the foot of the witness clause the mortgage was signed by Umar Pir Mahomed in the presence of one attesting witness only, and the point is taken that by reason of that fact it is not a valid mortgage. Below that signature and attestation appears a receipt clause whereby the mortgagor on the very same day on which he signed the document admitted the receipt of Rs. 20,000, signing his name below the words ' I say received ', and that was witnessed by two persons, one of whom Mr. Rustomji Fardunji Mulla had previously attested the mortgagor's signature to the execution of the document. It is contended on behalf of the defendants that the attestation to this receipt clause is a sufficient attestation to comply with Section 59 of the Transfer of Property Act.
3. On the same day, namely, December 21, 1901, as appears from the last page of the mortgage, certain endorsements were made in the office of the Sub-Registrar of Bombay. The first is in these terms :-'Omar Peer Mahomed effecuting party timber-merchant residing at Memon Mohola admits execution, and below that is the signature of the mortgagor. Then comes another endorsement in these terms : ' Mr. Sakarlal Jayantilal, clerk to Messrs. Mulla and Mulla, Solicitors, residing at Bhooleshwar and known to the Sub-Registrar examined as to identity of the above executant.' Below that appears the signature of Sakarlal Jayantilal, and below his signature is the signature at the Sub-Registrar of Bombay. It is contended on behalf of the defendants :hat this is an attestation sufficient to comply with Section 59 of the Transfer of Property Act. The last endorsement on the mortgage is a statement that it was registered on January 3, 1902, and the document is signed by the Sub-registrar to that effect on that date.
4. Section 59 of the Transfer of Property Act provides that a mortgage of the character with which this case is concerned ' can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.' What is meant by ' attested ' appears in Section 3 of the Act as follows :-
'attested' in relation to an instrument, means (and shall be deemed always to have meant) attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument n the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant;....
The point which has been argued is whether that section implies the completion of the document by signature and attestation before it is presented for registration, or whether, as contended by Mr. Munshi for the defendants, if he document has not been attested before presentation to the Sub-Registrar, he endorsements made in the office of the Sub-Registrar may be looked at to Drove attestation.
5. Before dealing further with this question, I will first give my opinion as to he effect of the receipt clause. Looking to the definition of ' attested ' in Section 3 )f the Transfer of Property Act, the relevant words in this connection are : ' or has received from the executant a personal acknowledgment of his signaure or mark, ,..,, and each of whom has signed the instrument in the presence )f the executant.' Mr. Munshi has to satisfy me that the two witnesses, who Dut their signatures at the side of the mortgagor's signature below the words
I say received ', put their signatures there in his presence after having received from him a personal acknowledgment of his signature as executant of the mortgage. Mr. Munshi has entirely failed to satisfy me as to this. There is 10 evidence that the mortgagor made any acknowledgment to these two wit-lesses at the time they signed the receipt clause that he had previously signed :he document as an executant thereof. I can only treat their signatures to ;he receipt clause as what they purport to be, namely, an acknowledgment by hem that he admitted the receipt of the money, and that he had signed the document in that place for that purpose.
6. Coming now to Mr. Munshi's contention that there is sufficient attestation to the document to be found from what took place on December 21, 1901, before the Sub-Registrar, although the mortgagor put his signature to the document admitting execution, there is no evidence that he admitted execution in :he presence of Sakarlal Jayantilal; and as regards the signature of Sakarlal fayantilal on the document, that merely indicates that he signed the document after being examined by the Registrar as to the identity of the mortgagor. Whether Sakarlal Jayantilal was present when the mortgagor admitted execution and whether he signed his name on the document in the presence of the mortgagor does not appear. Further there is no evidence to prove whether the Sub-Registrar put his name on the document in the presence of the mortgagor or in the presence of Sakarlal Jayantilal or afterwards. Consequently, even if Mr. Munshi were right in his contention that what takes place before the Sub-Registrar may be used for the purpose of showing that the document afterwards registered was duly attested by two witnesses before registration, he has failed to satisfy me by any evidence on this point. He has submitted that this document being over thirty years old, I ought to presume that these persons were all present and made their signatures at one and the same time in each other's presence. I am not, I think, entitled to make any such presumption, and I decline to do so.
7. Apart from authority, I am of opinion that what takes place before the registering officer has nothing to do with attestation, and cannot be looked at for the purpose of proving attestation of a document which requires to be registered. Section 47 of the Indian Registration Act of 1908 says that a registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. This section obviously contemplates that any document presented for registration shall be complete and valid in law before presentation. The duty imposed upon the registering officer by Section 34 is to enquire whether or not the document was executed by the person by whom it purports to have been executed, and to satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document, and any enquiry held by the registering officer is directed to these matters and not to attestation. Similarly, the endorsements required by Section 58 to be made upon the document are in reference to admission of execution and the identity of the persons admitting execution, and not to attestation. And though the registering officer is bound by Section 59 to affix the date and his signature to all endorsements made in his presence, he is not bound to do so at the time they were made, and will comply with the section if he does so on the same day, at a time when the persons who made the endorsements may not be present. Clearly, therefore, this section does not contemplate that the signature of the registering officer to any endorsement is to be treated as that of an attesting witness in connection with an admission of execution. In my opinion, the relevant sections of the Indian Registration Act assume that the document which is sought to be registered is a document complete in all essentials before it is presented for registration.
8. There is a conflict of authority upon the point in other High Courts. A full bench of the Madras High Court in Veerappa Chettiar v. Subramania Ayyar I.L.R.(1928) Mad. 123 has taken the view that the signatures of the registering officer and of the identifying witnesses affixed to the registration endorsement under Sections 58 and 59 of the Indian Registration Act are a sufficient attestation within the meaning of Section 59 of the Transfer of Property Act and its subsequent amending Acts. In that case there had been a finding that the Sub-Registrar had made his signature in the registration endorsement referring to the admission of execution by the executants of the document in the presence of the executants, that the witnesses who identified the executants before the Sub-Registrar were present when the admission of execution was made by the executants, and that both the identifying witnesses had made their signatures in the presence of the executants. In the judgment of the Court delivered by Courts Trotter C. J. he said (p. 127) :-
The argument against this conclusion was that the signatures were made also intuitu, to satisfy the requirements of the Registration Act, and cannot therefore be invoked in aid for another purpose, viz., attestation under the Transfer of Property Act, though in fact all the conditions laid down by the latter Act are fulfilled. The registering officer and the identifying witnesses had exactly the same duty imposed upon them by the Registration Act as would have rested upon them as attesting witnesses under the Transfer of Property Act, and that duty they discharged.
With respect, I do not agree. It is true that the registering officer has imposed upon him by Section 34 of the Indian Registration Act the duty of satisfying himself whether execution was admitted by the person purporting to execute it, but it is no part of his duty to attest the signature of the executant, and the only duty imposed upon the identifying witnesses is to identify the person who has admitted execution. No duty is imposed upon them to attest the signature of that person as executing the document, and they are not called before the Registrar for that purpose. With respect to that decision, I disagree with it.
9. On the other hand, there is a full bench decision of the Allahabad High Court in Lachman Singh V. Surendra Bahadur Singh I.L.R.(1932) All. 1051, which takes the same view as that at which I have arrived in this case, and with that decision I agree.
10. Whether I am right or wrong in the opinion which I have formed, it would not, 1 think, be proper to force this title upon an unwilling purchaser having regard to the conflict of opinion which exists between two full benches of different High Courts. In Lallubhai v. Mohanla : AIR1935Bom16 Mr. Justice Broomfield at p. 1048 said :-
The meaning of a title free from reasonable doubt was explained in Pyrke v. Waddingha (1852) 10 Hare 1,' as a marketable title which can at all times be forced upon an unwilling purchaser, and it was held in that case that specific performance should not be allowed even though the Court takes a favourable view of the title if it appears that its opinion may fairly and reasonably be questioned by other competent persons.
Having regard to the difference of opinion which exists, I cannot say that the opinion which I have myself expressed might not fairly and reasonably be questioned by other competent persons, In such circumstances, it seems to me that I cannot possibly say that the title here is a title free from reasonable doubt.
11. The opinion which I have arrived at is in itself sufficient to dispose of this matter ; but as other points have been argued, I will very briefly deal with them.
12. The mortgagor on October 6, 1907, executed a second mortgage of the property, (exhibit B), and on April 21, 1909, he created a further charge thereon (exhibit C). No reconveyance in respect of the second mortgage is forthcoming, nor any release in respect of the charge. The mortgagee under the original mortgage in purported exercise of his power of sale sold the property by public auction on November 20, 1910. The property was purchased by one Abdul Mujid Valli Mahomed, arid the mortgagee executed a deed of assignment of the property in favour of Abdul Mujid Valli Mahomed, on November 7, 1911. The mortgagor also executed an assignment on November 5, 1913, in favour of the said Abdul Mujid Valli Mahomed of the last day of the term of the lease, and the present defendants derive their title to the property through the said Abdul Mujid Valli Mahomed. The defendants have contended that toy reason of the sale the second mortgage and the charge have been extinguished, and that the second mortgagee and the chargee are estopped from challenging the mortgage and sale, inasmuch as the second mortgage and charge were subject to the first mortgage. Mr. Munshi referred to Section 69 of the Transfer of Property Act, and contended that there had been a sale made in professed exercise of the power contained in the mortgage as contemplated by sub-s, (3) of Section 69, and that the second mortgagee and chargee by reason of Sub-section (4) would be bound to look to the mortgagee for any moneys due to them under their second mortgage and charge. In my opinion, this contention is entirely unfounded, inasmuch as Section 69 contemplates a sale in professed exercise of a power under a mortgage, which is a valid mortgage, and if, as I hold is the fact in the case before me, there never was a valid mortgage, there could not be a professed exercise of sale under the mortgage. Accordingly, in my opinion, the rights of the second mortgagee and chargee are entirely unaffected by the first mortgage and the sale professed to be made thereunder. As regards estoppel there is no suggestion of any representation having been made, which would give rise to an estoppel, and in my judgment no question of estoppel exists.
13. The next point taken by the plaintiff arises in connection with a mortgage of the property on October 16, 1923, in favour, among other persons, of Vithaldas Vasanji a firm, the partners in that firm at that date being Vasanji Premji and Jeewandas Trikamdas. As the mortgage-moneys under that mortgage were not paid off, an assignment of the equity of redemption was executed by the mortgagors on April 8, 1931, in favour, among other persons, of Vasanji Premji and Jiwandas Tricumdas, as being the partners in the firm of Vithaldas Vasanji. At the date of the said assignment, there were three other partners in that firm in addition to Vasanji Premji and Jiwandas Tricumdas. The purchaser has contended that the said assignment ought to have been made in favour of all the partners in the firm of Vithaldas Vasanji at the time of the assignment. I do not agree. The mortgage was to the firm of Vithaldas Vasanji among other persons. That means in law that it was a mortgage to those persons among others who were partners in the firm at the time, namely, Vasanji Premji and Jiwandas Tricumdas. The equity of redemption has been assigned to those two persons, and in my opinion that is sufficient. Even if that were not the case, Mr. Munshi on behalf of the defendants expressed his willingness that all existing partners in the firm of Vithaldas Vasanji should join in the conveyance of the property to the purchaser.
14. The last point taken by the plaintiff also related to the mortgage dated October 16, 1923, which was made in favour of Gordhandas Govindji Bhanji, Ramdas Girdhardas Kuverji and Tulsidas Valji, in addition to the abovementioned firm of Vithaldas. The plaintiff says that the defendants lave failed to satisfy him that the moneys advanced by the said persons were :heir self -acquired property and that no other persons were interested in the said moneys; as their coparceners. But the equity of redemption has been assigned to those persons and to the partners of the firm of Vithaldas Vasanji, and in my opinion there is no substance in this point.
15. The result is that I answer the question submitted to me in the negative, and hold that the defendants have not made out a marketable title to the property. I order the defendants to pay to the plaintiff the costs, and as this matter is, in my opinion, one of importance, I order the costs to be taxed on the same scale as a long cause under Rule 243 (1) of the High Court Rules.