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Tarachand and ors. Vs. Kesrimal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal No. 113 of 1969
Judge
Reported inAIR1973Raj123
ActsTransfer of Property Act, 1882 - Sections 3 and 59; Registration Act, 1908 - Sections 34, 58, 59 and 100
AppellantTarachand and ors.
RespondentKesrimal and ors.
Appellant Advocate Hastimal, Adv.
Respondent Advocate Pukhraj Singhi, Adv.
DispositionAppeal dismissed
Cases ReferredPran Nath Sarkar v. Jadu Nath Saha.
Excerpt:
- - 1 and 2 and deceased pratap chand in his own capacity as well as in the capacity of the manager of joint hindu family and had handed over possession of the mortgage security and got the deed registered on the same day? 1 in his own capacity as well as in the capacity of a manager of the joint hindu family executed a rent note in favour of the plaintiffs nos. 1 were valid and further the endorsement made by the sub-registrar as well as that by the identifying witness p. if the particulars which are to be endorsed on documents which are admitted for registration under section 58, registration act do not include the statements as to whether the signatures were made in the presence of the executant. this is what their lordships observed :the high court has pointed out that the.....kan singh, j. 1. this is a plaintiffs' appeal directed against the judgment and decree of the learned additional district judge, sirohi dated 28-4-1969 dis-missing the plaintiffs' suit for recovery of money on the foot of a mortgage. it raises the question about the validity of the attestation on the mortgage deed as also regarding the mode of proving the execution of the mortgage deed. 2. plaintiffs nos. 1 and 2 were father and son respectively. deceased pratap chand was appellant tara chand's father. according to the plaintiffs, de-fendant no. 1 kesrimal acting for himself and for and on behalf of his minor eons defendants nos. 2 to 5 executed & mortgage deed for a sum of rs. 12,000/- on 23-7-1954 in favour of the plaintiffs nos. 1 and 2 and tara chand's father pratap chand. the.....
Judgment:

Kan Singh, J.

1. This is a plaintiffs' appeal directed against the judgment and decree of the learned Additional District Judge, Sirohi dated 28-4-1969 dis-missing the plaintiffs' suit for recovery of money on the foot of a mortgage. It raises the question about the validity of the attestation on the mortgage deed as also regarding the mode of proving the execution of the mortgage deed.

2. Plaintiffs Nos. 1 and 2 were father and son respectively. Deceased Pratap Chand was appellant Tara Chand's father. According to the plaintiffs, de-fendant No. 1 Kesrimal acting for himself and for and on behalf of his minor eons defendants Nos. 2 to 5 executed & mortgage deed for a sum of Rs. 12,000/- on 23-7-1954 in favour of the plaintiffs Nos. 1 and 2 and Tara Chand's father Pratap Chand. The mortgage deed was got registered the same day. According to it, a house and a shop described in para 1(b) of the plaint were mortgaged and the possession of the mortgaged property was handed over to the mortgagees end the mortgagors executed a rent note the same day agreeing to pay Rs. 60/-per month, as rent for the property. It does not appear that there was any stipulation to pay interest. However, as the rent fell in arrears after sometime the plaintiffs brought a suit against the mortgagors-tenants for arrears of rent and eviction in the Court of Civil Judge, Sirohi. On 9-12-1958 a decree was passed in plaintiffs' favour for an amount of Rs. 2,144/- in that suit. In execution of the decree the plaintiffs got attached the equity of redemption in the aforesaid property and that property was put to sale. Javerchand deceased had purchased the property aS Javerchand had died, defendants Nos. 6 and 7, who were his brothers were impleaded in place of Javerchand, In the present suit the plaintiffs prayed for a decree for Rupees 12,000/- and also prayed that the mortgage property be put to sale and further if the mortgage amount remained unpaid a personal decree be passed against the defendants. As against defendants Nos. 6 and 7 it was alleged that they had purchased the property subject to mortgage and with the full knowledge of the plaintiffs' rights and, therefore, they would be deemed to have stepped into the shoes of the mortgagors and were liable to the same extent as the mortgagors.

3. Defendant No. 1 Kesrimal did not appear to contest the suit and the proceedings remained ex parte against him. Defendants Nos. 2 to 5, however, contested the suit. They did not admit the execution of the mortgage by their father and pleaded in the alternative that even If that be taken to have been executed, they were not liable for it. They also denied that the possession of the suit property was handed over to the plaintiffs. Some other pleas were also raised by them. The defendants Nos. 6 and 7 also contested the suit. They took the position that the mortgage was invalid for went of proper attestation. They averred that the endorsements of the so-called attesting witnesses appeared above the signature of the executant Kesrimal and as such this was not a valid attestation.

4. The learned Additional District Judge framed the following issues:

'1. Whether the plaintiffs are the legal heirs of Pratapchand deceased? P.

2. Whether defendant No. 1 had executed a mortgage deed of the suit property for Rs. 12,000/ on 23-7-1954 in favour of plaintiffs Nos. 1 and 2 and deceased Pratap Chand in his own capacity as well as in the capacity of the manager of joint Hindu family and had handed over possession of the mortgage security and got the deed registered on the same day? P.

3. Whether the defendant No. 1 in his own capacity as well as in the capacity of a manager of the joint Hindu family executed a rent note in favour of the plaintiffs Nos. 1 and 2 and deceased Pratap Chand stipulating to pay rent (r) Rs. 60/- p.m. on 23-7-1945? P.

4. Whether a decree for arrears of rent and eviction was passed in civil suit No. 38/58 by the Civil Judge, Sirohi against defendants Nos. 1 to 5? P.

5. Whether in execution of that decree only the rights of the mortgagor were sold in execution case No. 79/60 and the said mortgage was duly notified in sale proclamation P.

6. Whether defendants Nos. 6 and 7 are legal heirs of deceased Javerchand? P.

7. Whether defendants Nos. 6 and 7 are also liable for the payment of the mortgage money amounting to Rupees 12,000/-? P.

8. Whether the plaintiffs' suit is time barred? D.

9. Whether the plaintiffs could not bring this suit without obtaining letters of administration and succession certificate? D.

10. Whether the mortgage is with-out consideration? D.

11. What relief?'

5. On the side of the plaintiffs six witnesses were examined. P. W. 4was the plaintiff Tara Chand. He stated that the mortgage deed Ex. 1 was executed by Kesrimal as Karta of the family in his favour. It was scribed by Mohan Rai P. W. 1. According to Tara Chand, Chhaganlal was the first attesting witness to make the attestation and then Kesrimal signed the document, However as no other person was present there the plaintiff and Kesrimal went to the office of Shri Panraj Advocate. There they came across one Achaldas who made the second attestation at the behest of Kesrimal P. W. 1 Mohan Raj was the scribe of the document Ex. 1. He stated that he had written out Ex, 1 as desired by Kesrimal who had put his signature A to B on the document in his presence. P. W. 2 Pukhraj was the brother of Achaldas and as Achaldas had died before the institution of the suit, Pukhraj was called to depose that the writing P to Q on the document was that of his brother Achaldas. P. W. 3 was Shri Durga Chand, the Sub-Registrar, who had registered the document Ex. 1 on being presented by Kesrimal. He stated that the endorsement M to N on the document Ex. 1 was in his hand. Kesrimal was asked by him about the execution and he admitted to have signed the document at A to B. Then as the witness did not know Kesrimal he asked him to produce an identifying witness. Accordingly. Kesrimal brought P. W. 6 Shri Parasmal Advocate who identified Kesrimal. Kesrimal then signed the document in his presence at Y to Z. There is some confusion about the making of signatures or attestation. As already noticed P to Q according to P. W. 2 Pukhraj were the writing of his brother Achaldas, whereas according to Shri Durga Chand it was at P to Q that Kesrimal had put his signatures. He further stated that he had put his own signatures Y to Z in the presence of Kesrimal and Parasmal P. W. 5 Vel-chand stated that the suit house had been auctioned and he was one of the Motbirs called by the Amin. He stated that before Javerchand gave his bid he read the sale proclamation in his presence. P. W. 6 Shri Parasmal stated about his identifying Kesrimal in the presence of the Sub-Registrar.

6. The defendants had not produced any evidence in rebuttal.

7. The learned Additional District Judge held: (11 that the mortgage deed Ex. 1 was scribed by Kesrimal, (2) that it was with consideration. (3) that only one attestation and that too by the Sub-Registrar Shri Durga Chand had been established. The learned Judge thought that Shri Durga Chand could be treated as an attesting witness in the circumstances. The learned Judge, however,did not treat the attestations purporting to be by Chhaganlal and Achaldas respectively to be valid. Consequently he held that the document Ex. 1 cannot be treated as a valid mortgage as could be enforced against the defendant. The learned Judge further held on the basis of the rent note Ex. D/2 produced by P. W. 4 Tarachand the plaintiff, that the sons of the mortgagors were bound by the mortgage deed. In the result, the learned Judge dismissed the suit, but left the parties to bear their own costs.

8. In assailing the judgment and decree of the learned trial Judge, learned counsel for the appellants contended that the attestations of Chhaganlal and Achal Das on the mortgage deed Ex. 1 were valid and further the endorsement made by the Sub-Registrar as well as that by the identifying witness P. W. 6 Parasmal could also be regarded as valid attestations in the circumstances. Learned counsel further contended that one attesting witness Durga Chand has been examined by the plaintiffs, but even that too was not required as in accordance with the proviso to Section 68 of the Evidence Act the defendants had not specifically denied the execution of the mortgage deed by Kesrimal. Learned counsel maintained that Chhaganlal was summoned though he did not appear and that amounted to his being called within the meaning of Section 68 of the Evidence Act and since the witness had not appeared, the document could be proved by other evidence. In the alternative, learned counsel for the appellants submitted that even if the mortgage deed Ex. 1 is held to be invalid for want of a proper attestation it could nevertheless be regarded as a valid charge under Section 100 of the Transfer of Property Act

9. Learned counsel for the respondents countered the submissions of learned counsel for the appellant and tried to support the judgment of the trial Court.

10. Both the learned counsel cited a number of cases and I will be referring to such of them as could afford any help in the course of what I am going to say hereinafter.

11. The points that arise for consideration are: (1) Whether the mortgage deed Ex. 1 contains at least two attestations as required by Section 59 of the Transfer of Property Act? (2) Whether the defendants could be said to have specifically denied the execution of the mortgage deed by Kesrimal so as to dispense with the necessity of at least calling one of the attesting witnesses for proving the document Ex, 1? (3) Whether for want of proper attestation the mortgage deed Ex. 1 could be treated as a charge and be enforced as such?

12. Before proceeding further I may refer to the mortgage deed Ex. 1. It commences by saying that it was being written by Kesrimal Mahaian of Sumerpur in favour of Pratapchand, Tarachand and Mukanmal of Sumerpur. Kesrimal had one house and a shop which he was mortgaging as a usufructuary mortgage for Rs. 12,000/-. There would be no interest for the amount and the mortgagee would not be paying any rent to the mortgagors, but the latter would be repaying the loan whenever demanded by the mortgagees. Then it is mentioned that Rs. 11,000/- had been taken on 12-7-1954 for business and Rs. 1,000/- were being taken on 23-7-1954. The description of the property that was mortgaged is given in the document and then it concludes by saying that the document was being written by Kesrimal for himself and on behalf of his family as Karta. Then the scribe had written the following in the concluding sentence:--

^^la- 2010 jk lko.k on 9 rk-23&7&54 n k A eq A eksgujkt fdyh;k.keyth o jk gS dsljheyth jkdS.kk lqckyh esa jkA uk A 394 A**

Thereafter the two attestations appear and then below the attestations is the signature of Kesrimal. I may read this portion of the document in full.

^^lk[k 1 vpynkl usehpanth [khesyokyks jh ls gk lk dsljheyth /kqikth lqesjkjokyks js dsokslq lk[k xkyhZ ls lk[k 1lk% Nxuyky panjHkkS.kth lk- cyk.kk ckyks jh ls gk% lk dsljheyth /kqikth lqusjiqjokyks js ds.kk lw lk[k ckyh esa xkyh Ns n% dsljhey /kqikth jk Ns**

Then the endorsement of the Sub-Registrar and that of Parasmal (P. W. 6) at the time of registration are as follows:

rdehy dcwy dh xbZ A rdehydqUunk eqleh dsljhey oYn /kqikth dkse iksjoky lkfdu lqesjiqj rglhy ckyh gkftjftldh Jh ikjl ey odhy lkfdu okyh igpkurk gS A ftldks eSa lc jftLVkj ckyhigpkurk gwa A rdehy dqUunk us nLrkost fy[kus ls oks ekotk ikus ls bdcky fd;k Ail nLrkost jftLVjh fd;k x;k A QDr 23&7&54 A

n% dsljhDy

Sd/-

SUB REGISTRAR, BALL'

'I know Keshrimalji S/o Dhupaji of Sumerpur.

Sd/- Parasmal Mehta,

Advocate Bali.'

13. The question here is whether the so-called attestation by persons who had made the attestation even before the executant signed the document can be taken to be a valid attestation within the meaning of Section 59 of the Transfer of Property Act. The term 'attested' has been defined in Section 3 of the Transfer of Property 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 in 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; 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 ordinary dictionary meaning of the word 'attest' is 'to testify or bear witness to:'. 'to affirm by signature or oath': 'to give proof of:', 'to manifest:'. 'to call to witness.' vide Chambers Twentieth Century Dictionary Revised Edition. Their Lordships of the Supreme Court had occasion to consider the question as to what is a valid attestation within the meaning of Section 3 of the Transfer of Property Act in a recent case reported as M. L. Abdul Jabbar v. Venkata Sastri & Sons, AIR 1969 SC 1147. Their Lordships observed:

'The word 'attested', occurs in Section 3. T. P. Act, as part of the definition itself. To attest is to bear witness to a fact. The essential conditions of a valid attestation under Section 3 of T. P. Act are: (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is. for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e. g. to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness'.

14. It Is, therefore, necessary to see whether the plaintiffs had been able to establish that the so-called attesting witnesses had seen the executant sign theinstrument or had received from him a personal acknowledgment of the signature and whether each of the attesting witnesses had signed the instrument in the presence of the executant. The next essential requirement is that an attesting witness puts his signature animo attestandi, that is, for the purpose of attesting that he had seen the executant sign or had received from him a personal acknowledgment of his signature. If the signature on the document is put for some other purpose namely, to certify that he is a scribe or an identifier or a registering officer then he is not an attesting witness. Now, the plain language of the endorsement by Achaldas and Chhaganlal cannot, in the circumstances, be taken as sufficient to prove that these attesting witnesses had seen the executant sign the document or had received personal acknowledgment of his signature. The reason is obvious as the signature had not been put by Kesrimal before these persons had recorded their attestations. The document also does not show that the so-called attestations were made by these persons in the presence of Kesrimal. Of course, animo attestandi could be taken to be there when Achaldas and Chhaganlal made the end or sements.

15. In Nathu v. Ghisia. 1967 Raj LW 51. Bhandari, J., as he then was, had pointedly considered the question whether a person who makes the attestation before the signature is put by the executant can be treated as an attesting witness within the meaning of Section 3 of the Transfer of Property Act. After setting out the definition of the term 'attested' as given in the Transfer of Property Act the learned Judge observed:

'Though this definition expressly does not say that the attesting witnesses should sign the document after the executant has signed or affixed his mark to the instrument yet it is implicit in the definition that the executant should have signed or affixed his mark first and then the attesting witnesses should have attested it. This flows from the words 'each of whom has seen the executant sign or affix his mark to the instrument or seen some other person sign the instrument in the presence of and by the direction of the executant'.

I am in respectful agreement with the above observations. In my opinion, therefore. Achaldas and Chhaganlal cannot be taken to have attested the document Ex. 1 as required by the provisions of Section 59 of the Transfer of Property Act.

16. The next question is whether the Sub-Registrar or Parasmal for thatmatter could be regarded as attesting witnesses. P. W. 3 Shri Durga Chand stated that Ex. 1 was presented by Shri Kesrimal. The endorsement of presentation was in the hand of the witness. Thereafter the witness called Kesrimal before making his endorsement of registration and he admitted before him that signatures A to B were of his. However, as the witness did not know Kesrimal he asked him to produce an identifying witness. This Kesrimal had done by producing P. W. 6 Parasmal. Then Kesrimal put his signatures P to Q and Shri Parasmal put his signature of identification K to L. Thereafter the witness put his signature Y to Z in the presence of Kesrimal and Parasmal.

17. Now. Section 34 of the Registration Act provides for enquiry before registration by the registering officer. It, inter alia, lays down that the registering officer shall enquire whether or not such document was executed by the persons by whom it purports to have been executed. The registering officer shall further satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document. Now, by what Shri Durga Chand was doing in enquiring from Kesrimal whether he had executed the document or when he called upon him to produce an identifying witness he was just carrying out his statutory duty as a registering officer. In the absence of anything more it cannot be Predicated that the registering officer Shri Durga Chand had the necessary animus of attesting the document namely, that of testifying or bearing witness to or to give proof of the document. Likewise, P. W. 6 Parasmal cannot be said to have the requisite animus. Learned counsel for the appellant relied on certain observations of their Lordships of the Privy Council in Surendra Bahadur Singh v. Behari Singh. AIR 1939 PC 117 for the argument that the Sub-Registrar could be regarded as an attesting witness. Learned counsel emphasised that in AIR 1969 SC 1147 their Lordships of the Supreme Court had agreed with the observations of the Privy Council in this regard. In the case before their Lordships of the Privy Council the question arose whether the endorsement of the Sub-Registrar or the contents of the registration endorsement containing admission of execution of the deed by the executant could amount to an attestation of the mortgage deed. Their Lordships decided the question on consideration of the evidence whether the signatures were made by the Registrar or the Identifying witness in the presence of the executant. This is what their Lord-ships were pleased to observe:

'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 Sub-Registrar end Identifying witnesses have affixed their signatures to the registration endorsement under Sections 58 & 59, Registration Act, admitting execution of a mortgage deed but there is no evidence that signatures were made in the presence of the executant, the signatures 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. T. P. Act. If the particulars which are to be endorsed on documents which are admitted for registration under Section 58, 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 Registration Act, are of no avail. The endorsements made at the time of registration are relevant to the matter of registration only.'

Now from these observations the learned counsel for the appellants seeks to build an argument that if the Registrar or the identifying witnesses had signed in the presence of the executant, their Lordships would have treated the endorsement of the Registrar or that of the identifying witness as a valid attestation. I am afraid, learned counsel is reading too much in these observations. It is a matter of speculation whether their Lordships would have held the Registrar or the identifying witnesses as these attesting the document even without the necessity of establishing animus to attest on the part of these persons. For the requirement of the animus to attest, the Supreme Court authorities are quite clear and in the present case it cannot be said that either Shri Durga Chand (P. W. 3), the Sub-Registrar, or the identifying witness P. W. 6 Parasmal had the requisite animus to attest the document. In the result, therefore. I am of the opinion that none of the so-called attestations on Ex. 1 can be regarded as valid attestations within the meaning of Section 59 of the Transfer of Property Act.

18. Now. I may turn to the second question about there being specific denial or not in the written statement regarding execution of the mortgage deed by Kesrimal by the contesting defendant. Para 1 of the plaint and paras 1 of the respective written statements by the two sets of defendants may be read in juxtaposition:--

Para-Iof the Plaint.

Para-Iof the written statesment by defendants Nos. 6 and 7.

Para-Iof the written statement by defendants No-2 to 4.

1&;g gS fd izfroknh u- v 1 us :i;s 11000&00 vxh;kjs gtkjrkjh[k 12&7&54 o 1000&00 ,d gtkj rkjh[k 23&7&54 dksdqy :i;s 12000&00 LoxhZ; Jh izrki panth oYn ckypanth iksjoky fuoklhlqesjiqj o oknhx.k ua- 1 o 2 ls dtZ fy;s&& o bl dtkZ :i;s12000&00 esa izfroknh ua- 1 us cgsfl;r [kqn o drkZ [kkunku o oyhukckfyxku izfroknhx.k ua- 2 yxk 5 ds viuk futh fuEufyf[kr iMkSfl;ksa fcpykedku e; nqdku okds lqesjiqj rkjh[k 23&7&54 dks LoxhZ; izrkipUnth ooknhx.k ua- 1 o 2 ds ;gka jgufoy dCt j[kk&ftldk; fy[kr jguukek rkjh[k23&7&54 dks cgsfl;r [kqn o drkZ[kkunkuds LoxhZ; izrkipUnth o oknhx.k ua- 1 o 2 ds i{k esa fu'ikfnr djjftlVjh djok fn;k&vly; fyf[kr jguukek okn la[;k 32 lu~ 63 lhfoy ttlkgkc] fljksgh esa :ipUn cuke ,l- ds- cksgjk esa is'k gksus ls mldheql|hdk udy lkFk esa is'k gS A

1&&vthZnkokisjk; ua- 1 v o c vLohdkj gS A jgu :- 12000 ckjg gtkj esa gksuk ojgu [kr fu'ikfnr gksuk ge izfroknhx.k ua- 6 o 7 Lohdkj ugh djrs dfFkrjguukek fnukad 23&7&54 dk jgu [kr dh rkjh[k esa ugha vkrk gS Abldk ,XthD;wlu vVsLVslu o jftLVs'ku drbZ eUtwj ugha gSa A o edkueqrftdjk jgu foy dCt LoxhZ; izrki pUnth o oknh ua- 1 o 2 ds ;gka gkukLohdkj ugha A

1&&okn; i= in la- 1 v loZFkk vLohdkj dj fuosnu gS fdizfroknkx.k dks izfraoknh la- 1 }kjk fnukad 12&7&54 dks :- 11000,oa fnukad 23&7&54 dks :- 1000 LoxhZ; izrkipanth rFkk oknh la- 1o 2 ls dtZ fy;s tkuk Lohdkj ugha gS vkSj u izfroknha la- 1 }kjk rFkk dfFkrmDr dtsZ esa drkZ[kkunku ,oa ukckfyx izfroknh la- 2] 3 o 4 ds oyh dhgSfl;r ls LoxhZ; izrkipUnth rFkk oknhx.k la[;k 1 o 2 ds ;gka in la- 1 cesa of.kZr edku ^^jgu fcy dOt j[kuk rFkk rRlEcU/kh jgu ukek fnukad23&7&54 muds i{k esa fu'ikfnr dj jftLVh djk;k tkuk LohdkjgS A bl in esa fyf[kr lc dFku izfroknhx.k vLohdkj djrs gS A**

19. Section 68 of the Evidence Act runs as follows:--

'Section 68. 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.

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act. 1908, unless its execution by the person by whom it purports to have been executed is specifically denied'.

It Is to be noticed that Kesrimal had not chosen to file any written statement Nevertheless it was open to the contesting defendants to have specifically denied the signatures of Kesrimal. In Jahuri Sah y. D. P. Jhunjhunwala, AIR 1967 SC 109 the question that arose for consideration was whether the defendant had denied the averment about the adoption of one Shankerlal. Their Lordships had to consider that question in the light of Order 8. Rule 5, Civil P. C. This is what their Lordships observed :--

'The High Court has pointed out that the plaintiffs have clearly stated in Para 1 of the plaint that Shankerlal had been given in adoption to Sreelal. In neither of two written statements filed on behalf of the defendants has this assertion of fact by the plaintiffs been specifically denied. Instead, what is stated in both these written statements is that the defendants 'have no knowledge of the allegations made in Para 1 of the plaint. Bearing in mind that Order VIII, Rule 5, Civil P. C. provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant shall be taken to be admitted to say that a defendant has no knowledge of a fact pleaded by the plaintiff is not tantamount to a denial of the existence of that fact, not even an implied denial.'

In the present case when the proviso to Section 68, Evidence Act requires a specific denial much stronger words than saying that the defendants do not admit the plaintiffs' averment would be necessary. In other words, there has to be a denial by saying that the execution of the mortgage deed by Kesrimal by whom it purports to have been executed was denied. The denial in the present case, therefore, was not sufficient to be characterised as a specific denial within the meaning of proviso to Section 68 of the Evidence Act. What is a specific denial will by and large, depend on the nature of the averments made in the plaint and in what words they are sought to be met or replied in the written statement. The observations that I am making here should, therefore, be taken to be in the light of the fact and circumstances of the present case.

20. Be that as it may as I have come to the conclusion that the document Ex. 1 does not contain a valid attestation the question of calling any attesting witness for providing the document in accordance with the provisions of Section 68 of the Evidence Act would hardly arise. What Section 59 of the Transfer of Property Act lays down is about the creation of a mortgage and if a particular mortgage deed does not meet the requirements of Section 59 of the Transfer of Property Act then no valid mortgage can be said to have been created. What Section 68 contemplates Is how a mortgage deed which is attested has to be proved when it has been registered in accordance with law.

21. Now, finally I may deal with the alternative argument advanced by learned counsel for the appellants that even though Ex. 1 be not taken to be a valid mortgage it could yet be regarded as one creating a valid charge within the meaning of Section 100 of the Transfer, of Property Act. Learned counsel here wants to place reliance on the observations of their Lordships in AIR 1969 SC 1147. Learned counsel relies on the following observations:--

'The first paragraph of Section 100 of T. P. Act consists of two parts. The first part concerns the creation of a charge over immovable property. A charge may be made by act of parties or by operation of law. No restriction is put on the manner in which a charge can be made. Where such a charge has been created the second part comes into play. It provides that all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge. The second part does not address itself to the question of creation of a charge. It does not attract the provisions of Section 59 of T. P. Act relating to the creation of a mortgage.

With regard to the applicability of the provisions relating to a simple mortgage, the second part of the first paragraph makes no distinction between a charge created by act of parties and a charge by operation of law. Now a charge by operation of law is not made by a signed, registered and attested instrument. Obviously, the second part has not the effect of attracting the pro-visions of Section 59 to such a charge.

If a charge can be made by a registered instrument only in accordance with Section 59 of T. P. Act the subsequent transferee will always have notice of the charge in view of Section 3 of T. P. Act under which registration of the instrument operates as such a notice. But the basic assumption of the doctrine of notice enunciated in the second paragraph is that there may be cases where the subsequent transferee may not have notice of the charge. The plain implication of this paragraph is that a charge Can be made without any writing'.

Now in the case before their Lordships the defendant had executed a security bond and the defendant was given leave to defend the suit on the original side of the Madras High Court on the condition of his furnishing the security for a sum of Rs. 50,000/- to the satisfaction of the Registrar of the High Court. The condition of the bond was that of paying the appellant the amount of any decree that might he passed in the aforesaid suit and in the event of payment the bond would be void, otherwise it would remain in full force. The bond was attested by one B. Somnath and it was also signed by one K. S. Naravana Iyer, Advocate, who explained the document to Hajee Ahmed Batcha, the executant and he also identified him. The properties charged by the bond were located outside the local limits of the ordinary jurisdiction of the Madras High Court The document was sot registered. This case was referred to by learned counsel for the respondents for the purpose olshowing as to what were the requirements of a valid attestation. I have gone through this case with care, but I am unable to hold that the case lays down that a mortgage which may be invalid as a mortgage for want of proper attestation could yet be regarded as a charge within the meaning of Section 100 of the Transfer of Property Act. Now, a perusal of the definitions of the terms mortgage' and 'charge' as contained in Sections 58 and 100 respectively, will Show the essential difference between the two. In a mortgage interest in the property is conveyed to the mortgagee, whereas this is not so in the case of a charge-holder who can only enforce payment of his debt with reference to a particular property charged. The incidence of the two are thus different. The underlying intention has to be gathered from the document under consideration.

22. In the present case the Possession of the property came to be transferred to the plaintiffs as soon as the mortgage was executed and it is to be noticed that there was no stipulation for interest in the mortgage deeds and the mortgagors had executed a rent note in favour of the mortgagee. The matter did not rest there. The mortgagee had brought a suit for arrears of rent and had obtained a decree and that decree had been put into execution and the mortgage property was sold in execution of that decree subject to mortgage. In such an event it is idle to contend that document Ex. 1 was not intended to be a mortgage. There is no manner of doubt that Ex. 1 was intended to be a mortgage which was an anomalous one being a combination of a usufructuary mortgage and a simple mortgage in that over and above transferring the usufruct to the mortgagee the mortgagor had undertaken personal liability as well for the repayment of the mortgage debt. In such a case, therefore, it cannot be inferred that the intention of the parties was to create a charge on the property and not to have a mortgage. In Maharaj Ram Narayan v. Adhindra, AIR 1916 PC 169, their Lordships observed:

'The deed sued on provided that the principal money together with interest was to be realised as provided by the deed, by and out of the rents and the cesses of certain Mokurari villages, which were mortgaged with possession and the schedule to the deed stated the time and manner in which principal and interest were to be realised. On the determination of the period of mortgage it was contemplated that the debt with interest would be satisfied and a balance of some amount would be payable by the mortgagee to the mortgagor. The mortgagee remained in possession of the property for the period.

In a suit upon the bond which was unattested praying for a mortgage decree by way of sale, or simple money decree in the alternative for the sums alleged to be due thereunder.

Held, that the document did not create any charge under Section 100 of the Transfer of Property Act. 1882, but that it was an usufructuary mortgage, which could not be enforced as a mortgage for want of attestation. Even if it could be regarded as an enforceable usufructuary mortgage, by reason of Section 67(a) no suit could be instituted for a sale based upon it

On a construction of the document.

Held, that the mortgagor did not intend to be personally liable to repay any portion of the mortgage money except to the extent and in one or other of the events mentioned in the bond'.

23. Then in Pran Nath Sarkar v. Jadu Nath Saha. (19051 ILR 32 Cal 729 the learned Judges observed that where a transaction evidenced by a document was a mortgage as defined by Section 58 of the Transfer of Property Act, but the document was not attested by two witnesses as required by Section 59 of the Act, it could not be taken to operate as a charge under Section 100 of the Act

24. The same thing has been said in a number of other cases, but I need not encumber this judgment by enumerating them all.

25. On the other side learned counsel for the appellants referred me to Charnock Collieries Co. Ltd, v. Bholanath Dhar, (1912) ILR 39 Cal 810. In that case a document purporting to be a mortgage was executed on behalf of a Company. It was found that it was beyond the authority of the person executing it and in the circumstances it was taken to be a charge on it. Having considered this case. I am of the view that the preponderance of the case law is on the side of holding that on the failure of the mortgage for want of pro-per attestation it cannot be regarded as a valid charge if the underlying purpose or object of the document was to create a mortgage.

26. Therefore. I am unable to accept the alternative argument of the learned counsel.

27. The judgment of the learned Additional District Judge is, therefore, correct, though on one point regarding the Sub-Registrar being treated as an attesting witness I have taken a different view.

28. The result is that the appeal fails and is hereby dismissed, but in the circumstances the parties are left to bear their own costs.


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