1. The main question raised in this appeal is whether the provisions of Section 59 of the Transfer of Property Act which requires a mortgage to be effected by a registered instrument signed by the mortgagor and attested by at least two witnesses are sufficiently complied with when the witnesses are not present at the execution of the instrument by the mortgagor, but attest it subsequently on his acknowledgment of his signature-This question has been answered in the negative by the Calcutta Court in Girindra Nath Mukerjee v. Bejoy Gopal Mukerjee I.L.R. (1898) C. 246 and Abdul Karim v. Salimun I.L.R. (1899) C. 190 and in the affirmative by the Bombay and Allahabad High Courts in Ramji v. Bai Parvati I.L.R. (1902) B. 91 and Ganga Dei v. Shiam Sunder I.L.R. (1903) A. 69.
2. As to what is meant by attesting an instrument the appellant has relied on numerous old cases under Section 5 of the Statute of Frauds of which Stonehouse v. Evelyn (1734) 24 E.R. 3, Grayson v. Atkinson (1752) 28 E.R. 29. Ves. Sen. 454 Ellis v. Smith (1754) 3 O.E.R. 205 and White v. Trustees of the British Museum (1829) 6 N.C. 310 were cited before us. In these cases, it was held that under the provisions which required a will of lands to be 'attested and subscribed in the presence of the devisor by three or more credible witnesses' it was unnecessary for the testator actually to sign his will in the presence of the witnesses and that it was sufficient if he acknowledged it to be his will. This contention, however, was disapproved by many of the Judges who felt bound to follow it on the principle of stare decisis, and the objections to it have nowhere been more forcibly expressed than by Lord Brougham in delivering the judgment of the Privy Council in Casements v. Fulton (1845) 3 M.I.A. 395 a case under the Indian Wills Act No. XXV of 1838. 'The Statute of Frauds (29 Car. II., C. 3, Section 5), requires the will to be signed by the testator, in the presence of the witnesses; nevertheless, the construction put upon that important provision has been that an acknowledgment is equivalent to a signature. How far this latitude of interpretation was justified in principle, we need not now stop to inquire, else it might well be suggested that to do an act in the presence of a witness, and to acknowledge having done it when the witness was not present, are two entirely different things - as different as the witnessing a fact or act, and the witnessing a confession of that fact or act But it is too late to raise any such objection; we may, nevertheless, observe that the greatest Judges who have dealt with the subject have admitted the force of such considerations, and lamented the latitude given to the statutory provision by their predecessors, who first broke in upon its strictness. When Lord Hardwicke, in 1752, was first called upon to adopt this construction he expressed that it had for a long while been vexata quaestio; but still he felt the weight of authority too great to adopt the course he manifestly inclined to - Grayson v. Atkinson (1752) 2. Ves Sen. 454. Two years after, the point was more solemnly considered in Ellis v. Smith (1752) 1 Ves. 11 and adjudged by the same great lawyer, who then had the assistance of Sir J. Strange, M.R., Willes, C.J., and Parker, C.B. All these eminent men expressed their opinion, that, had the question been open, and if they were called upon now to decide it for the first time, they should not have held acknowledgments sufficient. But they found on examining the cases that the case was not res integra.'
3. In the English Wills Act 1 Viet. C. 36, followed in the Indian Wills Act No. XXV of 1838 and the Indian Succession Act of 1865, Section 50, the Legislature, when intending that acknowledgment of the signature should be sufficient in the case of. wills, did not think fit to leave this upon the construction placed upon the word 'attest' in the connection in which it occurs in Section 5 of the Statute of Frauds, but expressly enacted that the signature must be 'made or acknowledged' by the testator in the presence of two or more witnesses, thus reproducing what had for a very long time been understood to be sufficient in the case of wills of land, but no longer leaving it to rest on a questionable construction of the Statute of Frauds.
4. Mr. Sundara Iyer has not been able to cite to us any case not under Section 5 of the State of Frauds in which attestation was held to be sufficiently proved when it appeared that the deed was not executed in the presence of the witnesses but subsequently acknowledged before them by the maker. England v Roper (1816) 1 Stark 304, and Parke v. Mears (1806) 2 B& P. 217 deal with proof of execution and not with proof of attestation where attestation is necessary. The meaning of the word ' attest' has often come up in regard to the execution of powers which are required to be attested, but I cannot find that it has ever been suggested that attestation of an acknowledgment of the appointee's signature would do. In Farwell on Powers p. 137, it is said that the term attest means 'a witness shall be present to testify that the appointer has done the act required by the power.' In Burdett v. Spilsbury (1843) 10 Cl. 340 where the opinion of the Judges was taken, Lord Campbell observes at p. 417: 'What is the meaning of an attesting witness to a deed? Why, it is a witness who has seen the deed executed, and who signs it as a witness;' and Lord Chancellor Lyndhurst says similarly: 'The party who sees the will executed is in fact a witness to it; if he subscribes as a witness, he is then an attesting witness.' This was the meaning put upon the word in Sharpe v. Birch (1881) 8 Q.B.D. and by Sir George Jessel in Ford v. Kettle (1892) 9 Q.B.D. 139. In the latter case Sir George Jessel says at p. 143 : 'What then does 'attestation' mean? It is a well known legal term. The ordinary form of attestation is 'signed, sealed, and delivered' by the person who executes in the presence of the attesting witness. That is what 'attestation' means. The thing must be done in the presence of the man who in the future will be able to testify that it was done. The authorities show that there is no attestation unless the thing is done in the presence of the attesting witness.' These words afford good guidance as to the meaning to be put on the word attestation in construing an Indian statute. The decisions of the Bombay and Allahabad High Courts in Ramji v. Bai Parvati I.L.R. (1902) B. 91 and Ganga Dei v. Shiam Sunder I.L.R. (1903) A. 69 proceed on the ground that Section 50 (clause 3) of the Indian Succession Act which prescribes the manner in which wills must be attested requires the attesting witness either to see the testator sign or to receive from him a personal acknowledgment of his signature, and that this provision must be taken as a statutory definition of attestation applicable to other Indian Acts as well. With great respect I am unable to share this view. I do not think we should be justified in treating the provisions of Section 50 (clause 3) of the Indian Succession Act as though they appeared in an Interpretation Act and applying them to other Acts. These provisions have a special history as already pointed out and follow the provisions of the Wills Act, I Viet. Clause 36, which gave statutory authority to the construction put upon Section 5 of the Statute of Frauds, and, in my opinion, it would not be justifiable to apply them to other Acts If the legislature had intended that mortgages should be recognized in this way, they would, I think, have said so.
5. It is further objected on behalf of the appellant that this point was taken too late as the execution was admitted by the 3rd defendant who filed a written statement on behalf of defendants Nos. 5 to 7. The mortgagors, defendants Nos. 1 and 2, were ex parte, and defendants Nos. 5 to 7 were only attaching creditors. It was, therefore, necessary for the plaintiff to prove his right to a 'mortgage decree against defendants Nos. 1 and 2. This he failed to do when it was elicited in cross-examination that the attesting witnesses were not present when the mortgage was executed.
6. Under these circumstances the Subordinate Judge was, I think, justified in framing the further issue and deciding it for the defendants. The appeal must be dismissed with costs.
Sankaran Nair, J.
7. The question is whether the instrument sued upon is 'attested' as required by Section 59 of the Transfer of Property Act. There are two witnesses, Chami and Sivarama Menon. Chami addmitted that he did not see the document being written or signed and that he attested it at the Sub-Registry office at the request of the mortgagee. As this was in the presence of the mortgagors to whom the mortgage amount was then paid in his presence, it must be taken to be proved that though there was no oral acknowledgment; the mortgagors in effect admitted their execution. Sivarama Menon stated that he did not know where and when the document was written, that he did not see its execution by the Ist and 2nd defendants and that 6 he only attested it on their admission. Section 59 of the Transfer of Property Act enacts that 'a mortgage can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.' Is this document 'attested'?
8. It is contended before us that as the witnesses signed their names on the admission of the mortgagors of their signatures, they have 'attested' the instrument.
9. The word 'attest' means to bear witness to; affirm the truth or genuineness of. A person cannot be a witness to, or affirm the genuineness of, an instrument unless he was present at the execution thereof. The subsequent admission may be false. If the mental conviction of a person is enough for him to be a witness such conviction may be produced not only by the admission of the party executing but also by other unimpeachable testimony even against the declaration of the executant. Apparently, for this reason, the attesting witness must be one who was present at the execution. So according to Blackstone's Commentaries, Vol. II. p. 307, the 'attestation' of a deed is 'the execution of it in the presence of witnesses.' According to Lord St. Leonards, the attestation should be in this form : 'Signed by the above named testator in the presence of us present at the same time who have hereunto signed our names' - Hand Book of Real Property. Freshfield v. Reed (1842) 9 M. & W. 404 has decided that when used in an instrument 'the term 'attest' manifestly implies that a witness shall be present to testify that the party who is to execute the deed has done the act.' Lord Selborne relied upon this decision in Seal v. Claridge (1881) 7 Q.B.D. 519 when he was considering the effect of the Bills of Sale Act 1878. He said: 'What is the meaning of the word 'attestation' apart from the Bills of Sale Act 1878? The word implies the presence of some person, who stands by, but is not a party to, the transaction.' So also Jessel, M. R. in Ford v. Kettle (1882) 9 Q.B.D. 141 Seal v. Claridge (1881) 7 Q.B.D. 519 Sharpe v. Birch (1881) 8 Q.B.D. 114, Ford v. Kettle (1882) 9 Q.B.D. 141 are decisions on the Bills of Sale Act where the same view was taken as to the meaning of this word.
10. On the other hand, the cases Ellis v. Smith (1754) 1 Ves 11; 30 Eng. Rep. 205, Grayson v. Atkinson (1752) 2 Ves. Sen. 454; 28 Eng. Rep. 291. Stonehouse v. Evelyn (1734) 3. P.254; 24 Eng. Rep. 1051, White v. Trustees of the British Museum (1829) 6 Bing. 310 have been cited to show that in decisions upon the Statute of Frauds it has been repeatedly held that the witnesses need not be present at the execution but the acknowledgment by the testator of his signature to the witnesses followed by their own signatures is sufficient and they will be treated as attesting witnesses under the section.
11. Lord Campbell, C.J., however, said of a will under Section 5 of the Statute of Frauds 'that the will should be attested by the witnesses, i.e., that they should be present as witnesses and see it signed by the testator' Roberts v. Phillips (1855) 4 E. & B. 450, (24 L.J. 171 and in Bryan v. White 2 Rob. 315 Dr. Lushington said: ' 'Attest' means the person shall be present and see what passes, and shall, when required, bear witness to the facts.'
12. As to the decisions on the Statute of Frauds holding that an acknowledgment by the testator is sufficient for the witness to sign, I do not attach great weight to them. All the four Judges including the Lord Chancellor in Ellis v. Smith (1754) 1 Ves. 11 said they were not satisfied that an acknowledgment is sufficient as it lets in inconveniences and perjuries which the Statute was designed to prevent and is destructive of those barriers the Statute erected against perjury and fraud, though they also said that it was not open to them to decide otherwise as it was not res integra and stare decisis seemed the wisest course.
13. The balance of English authority is decidedly in favour of adopting the natural meaning of the term.
14. The decisions of the Indian High Courts are not uniform. No decision of this Court has been brought to our notice. The learned Judges of the Calcutta High Court are of opinion that the witnesses must be present when the mortgage instrument is signed - see Girindra Nath Mukerjee v. Bejoy Gopal Mukerjee I.L.R. (1898) C. 248, Abdual Karim v. Salimun I.L.R. (1902) C. 193, Sasi Bhusan Pal v. Chandra Peshkar I.L.R. (1906) C. 864 and Dinamoyee Debi v. Bon Behari Kapur 7 C.W.N. 60.
15. On the other hand it has been decided by the Bombay High Court in Ramji v. Bai Parvati I.L.R. (1902) B. 91 and the Allahabad High Court Ganga Dei v. Shiam Sundar I.L.R. (1903) A. 69 that the attestation of a mortgage deed required by Section 59 of the Transfer of Property Act includes attestation after execution of the deed on the acknowledgment by the executant of his signature.
16. I agree with the Calcutta High Court. The natural meaning of the word 'attest' as I have shown is in favour of that view. A person signing a will in the presence of a testator after receiving from him a personal acknowledgment of his signature or mark 'attests' a will under Section 50 of the Indian Succession Act. The absence of a similar provision for the acknowledgment of execution in Section 59 of the Transfer of Property Act shows that attestation of the actual execution is necessary. The Bombay and the Allahabad cases decide that when the word 'attest' is expressly and in terms 'declared to bear a certain meaning in the Indian Succession Act, it must be taken to have the same meaning in the subsequent enactment, the Transfer of Property Act, even in the absence of any such legislative declaration; and in fact this is the only argument advanced by the learned Judges who decided those cases. My inference is the other way. The so-called attestation based on the acknowledgment is ordinarily superfluous as evidence, as the document is registered and the executant's acknowledgment of his signature before a public officer is entitled to greater weight. A will operates only on the death of a testator and an acknowledgment by him, therefore, might perhaps be reasonably considered sufficient by the legislature as it is open to a testator at the time of the acknowledgment or subsequent thereto to make a will in the same terms without prejudice to another person's interest while in the case of a present transfer of property the law might well insist upon proof of the voluntary execution of the document on the date it purports to bear in the interests, among others, of those who might claim under grants by the executant between the date of the alleged execution and the acknowledgment. It is desirable to have proof of execution rather than proof of the executant's acknowledgment to prove such execution.
17. For these reasons, I would confirm the decree of the lower Court and dismiss the appeal with costs.