1. This second appeal arises out of a suit, brought by the plaintiff appellant as puisne mortgagee for redemption of a prior mortgage. The only question for decision in this appeal is whether the lower Courts were right in holding that the suit must fail by reason of the plaintiff not having proved the due execution of his own puisne mortgage deed.
2. The plaintiff alleged due execution of this deed on the 31st of May 1920. The defendant prior mortgagee, in his written statement denied that a mortgage deed executed by all the persons stated by the plaintiff had been validly executed. The mortgagors-defendants, admitted due execution. The first question to decide is whether it was necessary for the plaintiff to prove due execution of this deed of the 31st of May 1920 in view of the fact that the defendant mortgagors admitted due execution. It is argued by the appellant that the plaintiff was only concerned with getting his money, and that no issue arose when once the due execution of the deed was admitted by the mortgagors. But this was a suit not only against the mortgagors but primarily against the prior mortgagee. Before the suit could be successful the plaintiff had to prove that he was entitled to redeem the prior mortgage. He had to prove that he was one of the persons described in Section 91 of the Transfer of Property Act. He claimed to be a person having an interest in or charge upon the right to redeem the property: see Clause (b) of Section 91. It was necessary for him to prove this interest in the property before he could demand a right to redeem the first defendant. The fact that the mortgagor-defendants admitted due execution would not relieve the plaintiff of the necessity of proving his right to redeem as against the first defendant. Then it is said that the plaintiff was entitled to show that he had 'an interest in the right to redeem the property' within the meaning of Section 91(b) without proving due execution of his mortgage deed. The argument was that although when a deed has been executed, oral evidence may not be given to prove its terms, yet oral evidence is admissible to prove the relation of the parties to the deed to one another. In other words the appellant's counsel maintained that he could prove that the plaintiff was a puisne mortgagee under the deed of 31st of May 1920 without proving that deed itself.
3. No doubt there are cases where a certain legal relationship may be proved otherwise than by means of the deed which imposes terms on the parties to that relationship. This cannot, however, be the case here. Section 59 of the Transfer of Property Act enacts that a mortgage securing Rs. 100 or upwards can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Before the relationship of mortgagor and mortgagee can be held proved it is necessary to show that relationship was created by a duly attested deed. In order that the deed should be duly attested it was necessary, at the date when the trial Court's judgment and the lower Court's judgment were delivered, that the attesting witnesses should have actually seen the person executing the deed make, or get made, his signature. This brings us to the second question when due execution of this deed was proved. Both the lower Courts have held that the plaintiff failed to prove that the attesting witnesses were present when the mortgagors signed the deed. We see no reason to differ from this finding, but this case has assumed a new aspect owing to the enactment of the Transfer of Property Amending Act of 1926. This Act received the assent of the Governor-General on the 25th March 1926, and as there is no provision in the Act for its coming into force on any other date, it must be held in virtue of Section 5 of the General Clauses Act to have come into force on that date. This Act is entitled
an Act to explain certain provisions of the Transfer of Property Act, and the preamble begins with the words whereas it is expedient to explain certain provisions of the Transfer of Property Act of 1882.
4. It may be stated that the object of the Act was to remove the necessity held by their Lordships of the Privy Council to arise out of the use of the word 'attested' that the attesting witnesses should have actually witnessed the signing of the deed which they were attesting and this Amending Act provides that it will be sufficient if they have received from the executant a personal acknowledgment of his signature or mark, or of a signature of some other person under the direction of the executant. It also provides that the attesting witnesses need not have been present together when they received such acknowledgment. Now this Act is clearly what is known as a declaratory Act. A declaratory Act is described in Caries on Statute Law as an Act to remove doubts existing as to the meaning or effect of a statute, and it is also stated that the usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error. This description exactly applies to the present Act. It is further stated on page 336 of Caries on Statute Law, 3rd edition, that declaratory Acts, like judgments, decide cases pending when the judgments are given, but do not reopen decided cases.
Where an Act is in its nature declaratory the presumption against construing it retrospectively is inapplicable.
5. Many English decisions are cited in Support of these remarks, which may be therefore, held to explain the law correctly, especially as the same conclusion would follow from an application of the provisions of Section 6 of the General Clauses Act (X of 1897).
6. It would thus appear that the plaintiff is entitled to invoke this amending Act if we hold that this case has not been decided by the judgments of the lower Courts. On the point whether a case can be held to be decided by an appealable decree we have been referred to no authority, but on the analogy of the law of res judicata we have no doubt that an appealable decree, and one against which an appeal has been filed, cannot be regarded as a decided case in the present connexion. This being so, we hold that in hearing this appeal we are entitled to construe the Transfer of Property Act in the light of the amending Act.
7. It has been urged that this Court in second appeal is not entitled to interfere with a finding of fact of the lower Court. With this contention we fully agree, but the finding of the lower appellate Court is that the attesting witnesses did not actually see the document signed. In view of the change of law this finding becomes irrelevant. What we have now to see is whether the attesting witnesses saw the executants sign the deed or received an acknowledgment of the signature of the executants afterwards. The lower Courts have not considered the evidence from this point of view, and it is necessary for us to do so now. (Here the judgment discussed the evidence of the witnesses and concluded as follows:) We find no reason to doubt that this deed was attested by two attesting witnesses as required by the law which must govern the case in this appeal.
8. For the above reasons we allow this appeal. As the case was decided on a preliminary point, at least as all the issues ware not decided by reason of the decision on the point discussed, we remand the case for disposal on the merits according to law to the Court of first instance. We have been pressed by the respondent's counsel in the circumstances of this appeal to allow the respondent his costs, or at least not to allow the appellant's costs against him. There would have been considerable force in this request but for the fact that the objection of the respondent was really a purely technical one and does not seem to have any equitable basis. We accordingly are not disposed to depart from the ordinary practice, and we direct that the costs here, including fees on the higher scale and below shall abide the result of the case.
Kanhaiya Lal, J.
9. I agree in the order proposed. I only wish to add that on the evidence of Sitaram Lal, who was not cross examined, Dipnarain that Singh, Ganga Prasad and the witness had made a usufructuary mortgage in favour of the plaintiff, it is open to us to say that the plaintiff has a sufficient interest to redeem the prior mortgage. The decision of the other matter to which my learned brother has referred, however, renders a further elaboration of this point unnecessary.