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Madras Deposit and Benefit Society Limited Vs. Oonnamalai Ammal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in(1895)ILR18Mad29
AppellantMadras Deposit and Benefit Society Limited
RespondentOonnamalai Ammal and anr.
Cases ReferredGomaji v. Subbarayappa I.L.R.
Excerpt:
transfer of property act - act iv of 1882, section 59[1]--instrument unsigned by any witness--evidence act--act i of 1872, section 68--inadmissibility of the instrument in evidence to prove the debt. - .....by the provisions of section 68[2] of the indian evidence act, since it purports to create a legal mortgage.2. nor can the plaintiff company fall back upon the deposit of the title-deeds. there was no antecedent debt to secure which the title-deeds were deposited, and it is clear from the plaint itself that the intention from its inception was to effect a legal mortgage. a legal mortgage was prepared and accepted, but owing to neglect to comply with the requirements of section 59 of the transfer of property act it is invalid.3. we must dismiss the appeal with costs.[1] [section 59: where the principal money secured is one hundredmortgage when to be by rupees or upwards, a mortgage can be effected only by a regis-assurance. tered instrument signed by the mortgagor and attested by at.....
Judgment:

1. It is urged that, though the document cannot be used or proved as a mortgage instrument, it may be proved as containing a personal covenant to pay and we are referred to the decision in Gomaji v. Subbarayappa I.L.R. 15 Mad. 253 In that case, however, there was no statutory bar to receiving the document in evidence, though by reason of want of registration it could not affect the immoveable property comprised therein. In the present case the document is itself excluded by the provisions of Section 68[2] of the Indian Evidence Act, since it purports to create a legal mortgage.

2. Nor can the plaintiff company fall back upon the deposit of the title-deeds. There was no antecedent debt to secure which the title-deeds were deposited, and it is clear from the plaint itself that the intention from its inception was to effect a legal mortgage. A legal mortgage was prepared and accepted, but owing to neglect to comply with the requirements of Section 59 of the Transfer of Property Act it is invalid.

3. We must dismiss the appeal with costs.

[1]

[Section 59: Where the principal money secured is one hundred

Mortgage when to be by rupees or upwards, a mortgage can be effected only by a Regis-

assurance. tered instrument signed by the mortgagor and attested by at

least two witnesses.

Where the principal money secured is less than one hundred rupees, a mortgage may be

Effected either by an instrument signed and attested as aforesaid, or (except in the case of a

Simple mortgage) by delivery of the property.

Nothing in this section shall be deemed to render invalid mortgages made in the towns

Of Calcutta, Madras, Bombay, Karachi and Rangoon, by delivery to a creditor or his agent of

Documents of title to immoveable property, with intent to create a security thereon.]

[2]

[Section 68: If a document is required by law to be attested, it

Proof of execution of shall not be used as evidence until one attesting witness at least

document requited by law has been called for the purpose of proving its execution if there

to be attested. be an attesting witness alive, and subject to the process of the

Court and capable of giving evidence.]


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