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Kaderbhai Ismailji Poonawalla Vs. Fatmabai GolamhuseIn Kabira - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 397 of 1941
Judge
Reported inAIR1944Bom25; (1943)45BOMLR911
AppellantKaderbhai Ismailji Poonawalla
RespondentFatmabai GolamhuseIn Kabira
Excerpt:
.....section 59-mortgage-deed-attestation.;where a mortgagor affixes his signature at the foot of the mortgage deed and also below the clause acknowledging receipt of the mortgage money, and the attesting witnesses in whose presence both the signatures are made attest only his second signature, the deed is validly attested within the meaning of section 59 of the transfer of property act, 1882.;bryan v. white (1850) 2 rob. 315, 317 and govind bhikaji v. bhau gopal (1916) i.l.r. 41 bom. 384 : s.c. 19 bom. l.r. 147, followed.;harkisandas v. dwarkadas (1935) 37 bom. l.r. 913, distinguished. - - therefore the plaintiff's decree will have to be satisfied either in whole or in part from the sale-proceeds of the mortgaged property in the event of the defendants not redeeming it during the period..........actually saw the mortgagor execute the document and that the document was executed and the receipt clause signed by the mortgagor at one and the same time. i, therefore, do not think that this decision of mr. justice blackwell is of any assistance to the defendant.6. the real question is : is there anything in the law which lays down that the signature of the attesting witnesses must appear in any particular place in the document? it is true that the attesting witnesses must sign in that capacity and must attest the execution of the document. but if the signatures of the witnesses appear on the document-and there is clear and conclusive evidence that these witnesses actually saw the executant sign the document and they themselves signed in his presence-notwithstanding the fact that they.....
Judgment:

Chagla, J.

1. This is a suit to enforce a mortgage of Rs. 1,000 dated November 15, 1927. The only defence taken to the suit is that the mortgage is not valid inasmuch as the signature of the mortgagor to the mortgage deed has not been attested by any witness in accordance with the provisions in that behalf prescribed by the Transfer of Property Act (IV of 1882).

2. The mortgage deed is of November 15, 1927, and Mr. G.S. Talpade, an advocate of twenty years' standing of this Court, has deposed before me that he prepared this document. The document is signed by the mortgagor; then there is a receipt clause for Rs. 1,000, The mortgagor admits having received this amount and has signed this clause. Then to the left of the signature of the mortgagor to the receipt clause there is a typed heading 'Witnesses', and under this heading there are the signatures of one Abdeally Mahomedally Gangriwalla and of Mr. G.S. Talpade. Both the advocate, as I have already stated, and Gangriwalla have been called in evidence by Mr. K.T. Desai on behalf of the plaintiff. The evidence given by them is clear and unequivocal and has not been cross-examined upon. The evidence is that the mortgagor signed the document and then signed the receipt clause; this he did in the presence of both Gangriwalla and Talpade. Then Gangriwalla and Talpade signed under the heading 'Witnesses' in the presence of the mortgagor. These shortly are the facts; and the question is, on the document as it stands and on the evidence that has been led, whether it can be said that in law there has been due attestation of the execution of this document.

3. Now Section 59 of the Transfer of Property Act, 1882, provides that where the principal money secured is one hundred rupees or upwards, a 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. 'Attested' is defined in Section 3, and the portion of the definition relevant for the purposes of this case runs 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...and each of whom has signed the instrument in the presence of the executant.

There is no doubt on the evidence that each of the two attesting witnesses has seen the executant sign the instrument, nor can there be any doubt on the evidence that each of the attesting witnesses has signed the instrument in the presence of the executant. The sole basis of Mr. Boovariwala's contention for the defendants rests on the fact that the signatures of the attesting witnesses do not appear against the signature of the mortgagor where he has executed the document but that they appear against the signature of the mortgagor where he has signed the receipt clause.

4. Mr. Boovariwala has relied on the decision in Harkisandas v. Dwarkadas : AIR1936Bom94 . In that case the execution of the mortgage deed was attested by only one witness, and there were two witnesses who had attested the signature of the mortgagor to the receipt clause. Not evidence was led before Mr. Justice Blackwell, and the question turned solely on the construction of the document as it stood; and Blackwell J. held that there was no evidence before him from which he could come to the conclusion that the witnesses who had attested the receipt clause had signed in the presence of the executant nor that these witnesses were present when the executant had executed the mortgage deed by putting his signature to it. Mr. Justice Blackwell went further and indicated in his judgment that there was no evidence before him to show that the mortgagor had made any acknowledgment to the two witnesses who had attested the receipt clause that he had previously signed the document as the executant thereof. Therefore, according to Blackwell J., even if the mortgagor had merely acknowledged the execution of the document to the witnesses to the receipt clause, there would have been sufficient attestation of the document.

5. The evidence before me, as I have pointed out, goes much further than that. I have heard the evidence of the two witnesses, Talpade and Gangriwalla, who swear and say that they actually saw the mortgagor execute the document and that the document was executed and the receipt clause signed by the mortgagor at one and the same time. I, therefore, do not think that this decision of Mr. Justice Blackwell is of any assistance to the defendant.

6. The real question is : is there anything in the law which lays down that the signature of the attesting witnesses must appear in any particular place in the document? It is true that the attesting witnesses must sign in that capacity and must attest the execution of the document. But if the signatures of the witnesses appear on the document-and there is clear and conclusive evidence that these witnesses actually saw the executant sign the document and they themselves signed in his presence-notwithstanding the fact that they signed the document against the receipt clause, in my opinion there is sufficient and adequate attestation of the document. In Bryan v. White (1850) 2 Rob. 315 which is referred to in the decision in Govind Bhikaji v. Bhau Gopal I.L.R. (1916) 41 Bom. 384 Dr. Lushington pronounced in favour of the validity of a will where there was no attestation clause of any description and laid down that 'attest' means the persons shall be present and see what passes, and shall, when required, bear witness to the facts. Here we had these two witnesses, Talpade and Gangriwalla, who were present at the execution of the document, saw what passed, and have come before me to bear witness to those facts. I, therefore, hold that the execution of the mortgage has been duly attested and that the mortgage is Valid and binding on the defendant. The original defendant died, and the present defendants have been brought on record as the heirs and legal representatives of the original defendant.

7. The rate of interest reserved under the mortgage is eighteen per cent, a year. I think that the rate of interest is usurious and unconscionable. It is not a simple money loan but a loan secured by the security of immoveable properties. Mr. Desai contends that no point has been taken as regards the rate of interest in the written statement. I am not concerned with that. This is a matter which affects the conscience of, the Court, and I think it is most unconscionable to permit the plaintiff, when he is secured by the security of immoveable properties, interest at the rate of eighteen per cent, a year. I think a fair rate of interest would be six per cent.

8. I would, therefore, pass the usual preliminary mortgage decree for Rs. 1,000 with interest thereon at six per cent, from November 15, 1927, till payment, costs and interest on costs at six per cent. Period of redemption six months, In the usual preliminary mortgage decree there will not be inserted as is usually done the clause relating to liberty to apply for a personal decree in the event of a deficit because Mr. Desai has stated at the very outset that he does not proposed to take any personal decree against the defendants or against the estate of the original defendant. Therefore the plaintiff's decree will have to be satisfied either in whole or in part from the sale-proceeds of the mortgaged property in the event of the defendants not redeeming it during the period fixed for redemption.


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