1. The plaintiff has filed this First Appeal against the judgment and decree dated 31st August 1956 of Sri B. K. Das, Subordinate Judge of Mayurbhanj, arising out of a suit for enforcing an anomalous mortgage bond executed on the 4th May, 1948, by the present defendant No. 1 (Bhabatosh Das) and one Maheswari Debi, since deceased, who was the mother of defendants 1, 2 and 3. The agreement in the bond was to the effect that defendant No. 11 would be entitled to draw amounts from the plaintiff-bank to the extent of Rs. 10,000/-. The plaintiff after making adjustment had laid the claim at Rs. 12,477/11/9.
Defendants 2 and 3, who were not parties to the transaction, have been made parties in the suit as heirs of Maheswari. It is to be noted, the Properties mortgaged stood in the name of Maheswari, the mother. Defendants 4 to 7 are the sons of defendant No. 1 and defendant No. 8 is the son of defendant No. 2, Defendants 1, 4, 5, 6 and 7 supported the case of the plaintiff. The suit was contested by defendants 2, 3 and 8. The main contest was on the basis that the suit transaction was not duly and properly executed, that there was no proper attestation within the meaning of the definition under the Transfer of Property Act and that there was no legal necessity for the transaction.
2. The trial Court found that due, proper and valid execution of the document has not been proved, proper attestation also has not been proved and further there was no legal necessity to support the transaction. But on the admission of the defendants 1 and 4 to 7 a money decree was passed against them. The suit was dismissed as against the other defendants. Against this judgment and decree of the trial Court the plaintiff has come up in appeal.
3. We will now take up the question how far there has been proper execution of the document in suit (Ex. 1/c). One of the executants was Maheswari Debi. The learned Court below has found that it is admitted that Maheswari was a purdanashin lady. In fact the transaction was registered by the Sub-Registrar who had been to the house of Maheswari on commission and obtained the acknowledgement of due execution of the transaction. Moreover there is other evidence to the effect that she happened to he a Purdanashin lady.
That apart, it appears, the suit document is in English. Maheswari also had signed her name in English but on a scrutiny of her signature we feel convinced to observe that she did not know anything else of English excepting how to sign her name. There is also other evidence in support of the position that she did not know English. The document does not appear to be a very plain document which can be understood just on a perusal of it. The terms appear to be difficult.
In such circumstances we are definitely of the view that in order that the Plaintiff can enforce such a document, it is incumbent upon the plaintiff to prove not only that Maheswari had put her signature on the transaction but that the document was fully read over and explained to her and that she became a willing partner to the document after understanding the nature and the character of the document. It is significant to note in this connection that there is not an iota of evidence on record to show that the document was read over and explained to the lady executant.
Note of the attesting witnesses has been examined on this position nor even defendant No. 1 who fully supports the case of the plaintiff made even a bare statement to the effect that the document was read over and explained to the lady executant. On the contrary, it is the definite statement of the defendant No. 1 himself that there was no necessity for reading out or explaining the document. In such circumstances we are in complete agreement with the view taken by the learned Court below that proper and due execution of the document has not been proved.
4-5. The next question is whether the document which is sought to be enforced as a mortgage transaction has been proved to have been attested by two witnesses as required under Section 39 T. P. Act. We will first refer to the definition of 'attestation' contained in Section 3 of the Transfer of Property Act:
' '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 in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement 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; but it shall not be necessary that more than one of such witnesses shall have been present at the same time and no particular form of attestation shall be necessary.'
The definition dearly lays down that the legal act of attestation involves two important bilateral aspects (i) that the executant will sign the document in the presence of the attesting witnesses or that the executant will acknowledge his signature before the attesting witnesses and (ii) the further aspect which is equally important that the attesting witnesses will have to sign the document in, the presence of the executant. We may in this connection refer to a decision of their Lordships of the Privy Council in the case of Surendra Bahadur v. Behari Singh, AIR 1939 PC 117 which practically settles at rest the true import of this definition contained in the new Act of the year 1927.
Their Lordships laid down the Position very clearly that one of the essentials of attestation of a mortgage-deed is that each of the attesting witnesses must have signed the instrument in the presence of the executant; where the Sub-Registrar and the, identifying witnesses have affixed their signatures to the registration and endorsement under Sections 58 and 59 of the Registration Act, admitting execution of a mortgage-deed but there is no evidence that signatures were made in the presence of the executant, the signature, assuming that it would be legitimate to look at the proceedings relating to the registration of mortgage-deed for the purpose of proving the due execution and attestation thereof, cannot be said to have Proved due attestation as required by Section 59 of the Transfer of Property Act.
If the particulars which are to be endorsed on documents which are admitted for registration under Section 58 of the Registration Act do not include the statements as to whether the signatures were made in the presence of the executant. Sections 58, 59 and 60 of the Registration Act, are of no avail. The endorsement made at the time of registration are relevant to the matter of registration only Reference to this decision becomes important in view of the fact that Mr. Dasgupta, appearing On behalf of the appellant, has strongly relied upon the evidence of the Sub-Registrar (P. W. 1) in support of his contention that due attestation has been proved. The Sub-Registrar states :
'She (the lady) admitted the execution of the document in my presence at her place. She signed in my presence. Ext. 1 is her signature. I also endorsed the admission of execution by her. All her sons were present when I went to her place., and when the execution was admitted by her.'
There is a serious lacuna in the statements of the Sub-Registrar to prove Proper attestation inasmuch as he does not say in his deposition that be made an endorsement in the presence of the executant who had acknowledged her signature. Mr. Das-gupta relies upon the feature that the sequence that transpires in the statements of the witnesses will show that the endorsement was made in the presence of the executant.
Mere fact that the Sub-Registrar had made an endorsement in accordance with law does not lead to the conclusion that the endorsement was made in the presence of the executant, because of the provision contained in Section 59 of the Registration Act that such an endorsement can be made during the course of the day on which the executant admits her signature before the Sub-registrar. In Our view, therefore, when there is this serious lacuna in the statement of the Sub-Registrar, the statement of the Sub-Registrar does not prove attestation in accordance with law. The plaintiff relies upon the evidence of several witnesses to prove proper attestation by two witnesses. (After considering the evidence of these witnesses his Lordship concluded:) The learned Court below therefore was perfectly justified in coming to the conclusion that the document has not been properly attested and due execution of the document also has not been proved. Therefore the Plaintiff is not entitled to get a mortgage decree on the basis of this transaction.
6. On the question of legal necessity we may mention at the outset that the plaintiff does not base his claim on the footing that even if a persona] decree is passed against defendant No. 1, the brothers and the sons of the brothers will be liable as the loan was transacted for family necessity. Moreover it is also transparent that neither in the plaint nor in the transaction itself legal necessity is mentioned. These features weighed very much with the learned Court below and rightly to come to the conclusion that the transaction is also not supported by legal necessity.
7. In conclusion, therefore, we are in agreement with the learned Court below in all his findings. Accordingly the appeal fails and is dismissed; but there will be no order as to costs of this Court; but the order regarding costs passed, by the trial Court will stand.
8. I agree.