1. Section 59 of the Transfer of Property Act provides that a mortgage can only be effected by a registered instrument signed by the mortgagor and attested by two witnesses. It follows from the provisions of this section that an instrument which is not registered or attested as required by the section is not a mortgage or relevant evidence of a mortgage. If, however, a document which purports to be a mortgage but cannot take effect as a mortgage for want of registration or due attestation also contains a covenant to pay, is there anything to prevent such document being given in evidence in a suit on the contract to pay? This is in effect the question raised in the reference, and it resolves itself into the further questions whether such a document is rendered inadmissible as evidence of the contract to pay for want of registration by virtue of Section 49 of the Indian Registration Act 1877 or for want of attestation by virtue of Section 68 of the Indian Evidence Act 1872. In my opinion it is now well settled that want of registration will not render such document inadmissible in evidence in proof of the contract to pay. See the Full Bench decision in Ulfatun-nissa Elahijan Bibi v. Hosain Khan 9 C.k 520 followed in v. Subbarayappa 15 M.k 253.
2. As to whether it is rendered inadmissible for want of attestation, it may be observed that Section 68 of the Indian Evidence Act reproduces the English rule since the passing of Section 26 of the Common Law Procedure Act 1854 which modified the old common law rule that when a document had been attested it must be proved by an attesting witness whether or not attestation was necessary to the validity of the document, and provided that it should 'not be necessary to prove by the attesting witness any instrument to the validity of which attestation is not requisite'. With Section 68 must be also read Section 72 which provides that 'an attested document not required by law to be attested may be proved as if it was unattested,' thus expressly excluding the old common law rule. In Madras Deposit and Benefit society, Limited v. Oonnamalai Ammal 18 M.k 29 it was held that Section 68 rendered a document such as that now in question inadmissible as evidence of the contract to pay, because it purported to be a mortgage and a mortgage was required by law to be attested. This ruling was dissented from in Sonatun Shaha v. Dino Nath Shaha 28 C.k 222 on the ground that such a document in so far as it created a more personal or money liability is not required by law to be attested, and so not within the section. There is another ruling to the same effect in Tofaluddi Peada v. Mahar Ali Shaha 26 C.j 78 with which Subramania Aiyar, J., expressed his concurrence obiter in Sada Kavaur v. Tadepally Bamviah 30 M.k 284. I agree with the referring Judges that this is the right view. Provisions such as Section 68 must be construed strictly, and a document, which purports to be a mortgage but is not a mortgage owing to the provisions of Section 59, Transfer of Property Act, because it is not duly attested, is not in my opinion a document which 'is required by law to be attested' within the meaning of the section, and there is therefore nothing to prevent its being admitted in evidence in proof of the contract to pay therein contained which is not required by law to be attested. If it were tendered as proof of a mortgage it would, as already pointed out, be irrelevant by virtue of Section 59, Transfer of Property Act, and so inadmissible independently of Section 68 of the Evidence Act; and as appears from the history of that section its scope or purpose is to provide the mode of proving duly attested documents rather than to deal with the consequences of non-attestation as to which the terms of the enactment requiring attestation have to be considered. As to the decision in Veerappa Kavundan v. Ramasami Kavundan 80 M. 251 that a plaintiff suing on a duly attested mortgage who fails to call an attesting witness is not entitled to prove the deed otherwise for the purpose of enforcing the covenant to pay, it is sufficient to say that the document in that case being a duly attested mortgage was a document 'required by law to be attested' within the meaning of Section 68, whereas in my opinion the section does not apply to such a document as we are now considering. In the result I would answer both the questions referred to us in the affirmative.
3. It must I think be taken to be settled law that a document which contains a personal covenant to pay a debt and which purports to mortgage immoveable property as security for the debt is, if attested by two witnesses as required by Section 59 of the Transfer of Property Act, admissible in evidence to prove the personal, covenant, notwithstanding the fact that it is not registered--Vide Gomaji v. Subbarayappa 15 M.j 253 Sada Kavaur v. Todepally Basaviah 30 M.k 284, Ulfatunnissa Elahijan Bibi v. Hosain Khan 9 C.j 520. Is such a document admissible in evidence to prove the personal covenant even if not attested by two witnesses? I shall first deal with the case where the document is not attested at all. In Madras Deposit and Benefit society, Limited v. Oonnamalai Ammal 18 M.k 29 it was held that such an unattested document was inadmissible in evidence to prove the personal covenant. In Tofaluddi Peada v. Mahar Ali Shaha 26 C.k 78 and Sanatun Shaha v. Dino Nath Shaha 28 C.v 222 the opposite view was taken, and in the latter case Madras Deposit and Benefit society, Limited v. Oonnaimalai Ammal 18 M.k 29 was expressly dissented from. In Sada Kavaur v. Tadepally Basaviah 30 M.k 284 Subramania Aiyar, J., concurred with the view taken in the Calcutta cases. The decision in Madras Deposit and Benefit society, Limited v. Oonnamalai Ammal 18 M.k 29 is based upon Section 68 of the Indian Evidence Act. It assumes that that section, applies in the case of documents of the kind under consideration. Now Section 68 lays down that 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. This language to my mind clearly implies that to make Section 68 applicable the document must on its face purport to be attested. Section 69 makes the matter still clearer. It provides that, if no such attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting. Section 68 has therefore no application in the case of a document which is not attested at all, and Madras Deposit and Benefit society, Limited v. Oonnamalai Ammal 18 M.k 29 was in my opinion wrongly decided. Further consideration of Section 68 leads to the conclusion that a document to which it applies must not only be attested, but must be attested to the extent required by law. For the section distinctly contemplates that the document, after being proved in the manner laid down, may be used as evidence of every right which it purports to create. Now a document which, for example, purports to create a mortgage cannot be used as evidence of the mortgage unless it is attested by two witnesses as required by law. Such a document therefore if attested by only one witness or not attested at all does not come under the section. The same view is taken in Veerappa Kavundan v. Ramasami Kavundan 80 M.k 251 where it is stated that Section 68 obviously applies only to a case where an instrument, required by law to be attested, bears the necessary attestation. I would, therefore, answer both the questions referred to us in the affirmative.
Sankaran Nair, J.
4. I would answer both the questions in the affirmative. I have nothing to add to the judgments of my learned colleagues.