1. The only point in this second appeal is whether the execution of the mortgage deed sued on, Ex. A, has been proved. The District Munsif held that it was validly executed and decreed the plaintiff's suit. The Subordinate Judge reversed the decree of the District Munsif and dismissed the plaintiff's suit on the ground that its execution was not properly proved. The plaintiff has preferred this second appeal.
2. The evidence of the two attesting witnesses is to the effect that they did not actually see the executant signing the document. P.W. 2 says:
I did not see the and defendant sign Ex. A or the 1st defendant put her mark in it. It was written somewhere.
3. P.W. 3 says:
I was not present when Ex. A was written. The parties to it came to me and the defendants asked me to attest it saying they executed it.
4. The judgment of the Subordinate Judge would be correct but for Act XXVII of 1926, for the law was that in order to prove the execution of a document the attesting witness should have actually seen the executant sign or put his mark to the document. Act XXVII of 1926 which received the assent of the Governors-General on the 25th of March, 1926, was passed in order to get rid of the interpretation put upon the word ' attestation ' by the Courts.
5. Section 2 of the Act is as follows:
In Section 3 of the Transfer of Property Act, 1882, after the definition of the word 'instrument' the following shall be inserted, namely: 'attested' in relation to an instrument means 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 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.
6. Mr. Satyanarayana for the appellant contends that by virtue of the new Act the acknowledgment by the executant of his signature to the document before the attesting witnesses is sufficient for the proper execution of the document and it is not necessary that they should actually see the executant sign the document. If the attesting witness deposes that the executant acknowledged before him his signature or mark to the document and that he attested the document after receiving such acknowledgment, his evidence is sufficient to prove a valid execution. In this case there is such evidence. The question therefore is whether Act XXVII of 1926 applies to the present case. The contention of Mr. Suryanarayana for the respondents is that Act XXVII of 1926 is an amending Act and therefore it has no retrospective effect and should not be construed so as to affect vested rights and that the 1st defendant has already acquired a benefit by the document ' not being validly executed and he should not be deprived of it by a construction of the amending statute which would affect his rights. A number of cases have been relied upon by both the appellant and the respondent. The following principles may be taken as established by the cases:
1. Legislative enactments have no retrospective effect unless explicitly stated to be so in the enactments themselves.
2. Amending statutes should not be construed as having retrospective effect if they affect vested rights.
3. Statutes which are declaratory or explanatory are to be, construed as having retrospective effect as they give an authoritative explanation of the words, phrases or clauses used in a statute, and whenever the statute has to be applied the explanation also should be applied.
4. No recital in a declaratory or amending statute can render void that which has been declared by the Courts to have been done rightly under the law.
5. Statutes which affect a mere procedure are retrospective in their nature.
7. In Attorney-General v. Theobald (1890) 24 Q B 557 it was held that Section 11 of the Customs and Inland Revenue Act of 1889 was retrospective in effect. Section 11 was enacted in order to explain the expression 'voluntary settlement' in Section 38(c) of the Customs and Inland Revenue Act of 1881. Baron Pollock observed at page 559:
The case of Attorney-General v. Hertford (1849) 3 Ex 662 in the Court of the Exchequer is a strong authority that, if an Act is in its nature a declaratory Act, the argument that it must not be construed so as to take away previous rights is not applicable. The present case is, in my opinion, a stronger one in favour of the Crown. Here the earlier Act of 1881 provides what documents are to be stamped and what property is to be affected, describing it as 'any property passing under any past or future voluntary settlement'. These words 'voluntary settlement' having given rise to doubts, the Legislature in 1889 passed an Act which, in Section 11, sub-Section 1 provides that 'sub-Section 2 of Section 38 of the Act of 1881 is hereby amended as follows.' Now; although that section begins by using the words 'is hereby amended,' yet, the material part is that which follows in sub-Section 1, 'the description of property marked (?) shall be construed as if the expression 'voluntary settlement' included any trust... in favour of a volunteer... whether such deed or other instrument was made for valuable consideration or not as between the settlor and any other person.' Therefore the earlier Act must be read as having the meaning declared by the later Act. That seems to me to make this case perfectly clear.
8. In Attorney-General v. Bugett 3 Price 381 : 146 Eng Rep 130, it was held that an Act of Parliament made to correct an error by omission in a former statute of the same session, has relation back to the time when the first Act was passed. Even when mistakes in legislative enactments are corrected by a later amending Act, the amending Act should be read as part of the Act which it was intended to correct. Though the Act is not called a declaratory or explanatory Act, if from the words used in the Act the Court can come to the conclusion that it is declaratory or explanatory Act, retrospective effect will be given to such Act. This is clear from The King v. The Inhabitants of Dursley 110 E R 168. Lord Tenterden, C.J. observed with regard to the amending statute,
I think we must understand the second section to be retrospective, because it would be useless unless it were so. The words that 'payment to the amount of 10 1. shall be deemed sufficient for the purpose of gaining a settlement under the said recited Act' import that, as to the payment of rent, the statute is declaratory. If the words had been 'it is hereby declared that payment, etc., shall be deemed sufficient,' there could have been no doubt that the clause would be retrospective. Here the words are the same in effect.
9. Mr. Suryanarayana for the respondents strongly urges that the Act is an amending Act and therefore it should not be held to have retrospective effect. No doubt the Act is called the Transfer of Property Amendment Act, and in the preamble it is stated 'Whereas it is expedient to explain certain provisions of the Transfer of Property Act. ' The preamble and the title should be read together. From the whole of the Act it is quite clear that it is an explanatory Act and not an amending Act. He relies very strongly upon the observation of Lord Lindley, M.R. in Fielding v. Morky Corporation (1899) 1 Ch D 1 quoted by Craies, in his book on Statute Law at page 176 and contends that the title of the Act should be taken into consi-deration in considering an Act. The observation is as follows:
I read the title advisedly, because now, and for some years past, the title of an Act of Parliament has been part of the Act. In old days it used not to be so, and in the old law books we were told not so to regard it, but now the title is an important part of the Act, and is so treated in both Houses of Parliament.
10. It is also urged by Mr. Suryanarayana that the marginal note should be considered in considering an Act. The marginal note here is 'Amendment of Section 3, Act IV of 1882.' Whatever may be the view with regard to certain Acts of Parliament, in the case of Indian enactments the marginal notes are never the subject of discussion and they should not be held to control the clear meaning of the section or to show what the section means when the section is not clear. Baggallay, L.J., observed in Attorney General v. Great Eastern Railway Company (1879) 11 Ch 449:
I never knew an amendment set down or discussed upon the marginal note to a clause. The House of Commons never has anything to do with the amendment of the marginal note.
11. These remarks apply with great force to Indian enactments. The object of the Act as stated in the preamble is to explain certain provisions of the Transfer of Property Act. The Act itself is called ' The Transfer of Property (Amendment) Act' because it is not usual to style an Act as a declaratory or explanatory Act. The contention that the title and the marginal note make the Act an amending Act cannot be accepted.
12. The case of Hardiny v. Commissioners of Stamps for Queensland (1898) A C 769 does not help the respondent. In that case it was held that the Amendment Act of 1895, Section 2 was not retrospective in its operation. It was a fiscal enactment. Lord Hobhouse in delivering the judgment of the Privy Council observed:
The nature of the Act must be determined from its provisions. Now, (he Act does not contain any wards to show that it purports to construe the Act of 1892, it does purport to amend it; every other of its provisions is in language prospective, and in Section 2 itself the new rule is to take effect 'upon the issue of any grant of probate,' which is not fitting language to apply to estates for which probate has already been granted. In fact, the language of the Act points, as their Lordships think, distinctly to future operations.
13. Mr. Suryanarayana relies upon Gardner v. Lucas (1878) 3 A C 582 as supporting his contention. In that case, it was held that under the Statute 1696, c. 15 formalities were necessary for the validity of certain agreements. By the 38th and 39th sections of the Conveyancing (Scotland) Act, 1874, several requirements in the previous statute were dispensed with. It was held that the two sections were not retrospective and could not remedy the defects in a deed executed before 1874 which was void under the Act, 1696, c. 5, Lord O'Hagan observed:
Unless there is some declared intention of the Legislature--clear and unequivocal--or unless there are some circumstances rendering it inevitable that we should take the other view, we ought to presume that an Act is prospective and is not retrospective.
14. Lord Blackburn observed at page 603:
But where the effect would be to alter a transaction already entered into, where it would be to make that valid which was previously invalid--to make an instrument which had no effect at all, and from which the party was at liberty to depart as long as he pleased, binding--I think the prima facie construction of the Act is that it is not to be retrospective, and it would require strong reasons to show that is not the case.
15. In this case there is no question of the invalidity of the document. The document was executed. The only question is what is necessary to prove the execution of the document. It cannot be said that the document is invalid when it was executed. Before the Privy Council declared the law, execution could be proved by examining any of the attesting witnesses; it was not considered necessary that the attesting witness should have been actually present when the executant signed or put his mark to the document. The Act XXVII of 1926 was passed in order to declare what the meaning of the word 'attested' is and not to alter the law.
16. It is next argued that the Act should not be applied to pending actions and reliance is placed upon Hitchcock v. Way 112 E R 360. In that case the action was brought against an acceptor of a bill of exchange by a bona fide holder before the passing of Statute 5 and 6 W. 4, c. 41. It was held that under the Statute 9 Anne, c. 14, the defendant was entitled to non-suit if he proved the bill to have been given for a gaming consideration. Lord Denman, C.J., observed:
The plaintiff argued that this enactment could only receive effect at the time of trial, and the Court was bound to act upon it as that period. And many cases were cited in which Acts of Parliament repealing and altering the law had been so construed. But they all turned on the peculiar wording of those Acts which appeared to the Court to compel them to give the law an export facto operation. It is enough to say that we find no such words in 5 and 6 W. 4, c. 41 and are of opinion in general that the law as it existed when the action was commenced must decide the rights of the parties in the suit unless the Legislature express a clear intention to vary the relation of litigant parties to each other.
17. This case has no application to the present case as Act XXVII of 1926 does not alter the law as it stood before it was enacted. It only explains the expression 'attested' and that explanation has to be inserted after the word 'instrument' in Section 3 of the Transfer of Property Act. When any phrase or word or expression in an enactment is explained by the Legislature, the Act has to be applied with the authoritative explanation, for the very object of the authoritative explanation is to enable the Court to understand the Act in the light of the explanation. It cannot therefore be said that this Act does not apply to pending actions. In Maxwell on the
18. Interpretation of Statutes, at page 394 the law is stated as follows:
If a statute is in its nature a declaratory Act, the argument that it must not be construed so as to take away previous rights is not applicable.
19. The observations of Pollock Baron in Attorney General v. Theobald (1890) 24 Q B 557 are pertinent to this case.
It certainly was considered in many cases that where a person had commenced an action he had a vested night, and that any subsequent statute rought not to be construed as retrospective so as to alter that right. That is not an invariable rule, and it does not apply if the language of the statute is clear and express. This appears from a good many authorities, especially those affecting questions of costs.
20. I hold as the law stands at present it is sufficient if the attesting witnesses prove that the executant admitted before them his signature to the document and they attested it after getting such admission or acknowledgment.
21. The next question is whether I should record a finding on the question of fact, or whether I should send it down for a finding to the Lower Appellate Court. Seeing that the evidence is not voluminous and the statements of P.W. 2 and P.W. 3 are clear, I think no useful purpose will be served by sending the case down for a finding on the question whether the document has been validly executed or not. Section 103 of the Code of Civil Procedure is intended to cover cases of this kind. P.W. 2 says:
The first defendant says that they executed it.
22. P.W. 3 says:
The parties to it came to me and the defendants asked me to attest it spying they executed it.
23. It is urged by Mr. Suryanarayana that the evidence of these witnesses was considered untrue by the first Court and therefore they should not be relied on. Though the witnesses did not depose as expected of them, yet there is no reason to reject their evidence as totally false. Very often attestors are asked by the executants to attest the document after they have signed it. I see no reason to reject their evidence. I therefore find that the document has been proved to have been validly executed.
24. In the result, the appeal is allowed and the decree of the Subordinate Judge is set aside and the decree of the District Munsif restored with costs throughout.