Alfred Henry Lionel Leach, C.J.
1. This appeal arises out of a mortgage suit filed by the 1st respondent against the appellant. There were two mortgages, one dated the 2nd April, 1921, for Rs. 600 and the other dated the 25th April, 1921, for Rs. 400. The first mortgage carried interest at 24 per cent, per annum and the second mortgage interest at 30 percent, per annum. The property charged in each case was the appellant's half share in a house. The second respondent is a subsequent mortgagee, but he took no part in the case and he is not concerned with the questions raised in this appeal. The appellant contested both the mortgages on these grounds: (i) that he was a minor at the time they were entered into; (ii) that this question of minority had already been decided in his favour in a previous litigation, and therefore the doctrine of res judicata operated; and (iii) that no consideration passed for either mortgage. He raised a further contention with regard to the second mortgage to the effect that it was not valid because it had not been attested in accordance with the provisions of Section 59 of the Transfer of Property Act. The learned Judge decided against the appellant on all these questions and decreed the suit, but he reduced the rate of interest to one per cent, per annum in each case. This reduction of the interest has not been challenged in this appeal.
2. I will first deal with the argument on the second point, namely, that of res judicata. It appears that on the 3rd February, 1921, the appellant executed in favour of one P. Ratnavelu Achari another mortgage of the same property. Ratnavelu instituted Suit No. 545 of 1922 in the City Civil Court to recover the mortgage debt. The 1st respondent was made a party to that suit on the ground that he had a second charge over the property and had therefore a right to redeem Ratnavelu's mortgage. The 1st respondent did not appear and so far as he was concerned the case was decided ex parte. The trial Court held that the mortgagor was a major at the time of the execution of the mortgage in favour of Ratnavelu, but on appeal to this Court that decision was reversed and the mortgage was held to have no validity, having been executed during the minority of the appellant. Ratnavelu's suit was accordingly dismissed and the 1st respondent became the 1st mortgagee. The plea of res judicata is merely based on the fact that the 1st respondent was a party to the previous suit in which the question of the appellant's minority was decided. But this question was not a question between himself and the 1st mortgagee or between himself and the mortgagor. It was a question which concerned only Ratnavelu Achari and the present appellant. In Munni Bibi v. Tirloki Nath their Lordships of the Privy Council pointed out that in a case of this nature there are three conditions requisite before it can be held that the doctrine of res judicata has operation: (i) there must be a conflict of interests between those concerned; (ii) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and (iii) the question between the co-defendants must have been finally decided. This decision was re-affirmed by their Lordships in Maung Sein Done v. Ma Pan Nyun (1932) 63 M.L.J. 64 : 1932 L.R. 59 IndAp 247 : I.L.R. 10 Rang. 322 (P.C.). In Suit No. 545 of 1922 there was no conflict between the two defendants and therefore no question to be decided so far as the 1st respondent was concerned in order to give the plaintiff relief. The doctrine of res judicata could not, in these circumstances, apply.
3. [Their Lordships then discussed the evidence as to the minority of the appellant and came to the conclusion that the appellant had failed entirely to discharge the burden of proof resulting in the rejection of the plea of minority.]
4. With regard to the question of consideration, the appellant's case really rests on his denial that any consideration passed. The mortgage deeds disclose what the consideration was and the appellant's word cannot be accepted as proving that the consideration stated therein did not in fact pass. The plaintiff has produced his account books showing that he did lend the money. The fact that these account books were accurately kept in the ordinary course of business was not challenged in cross-examination. There is also no substance in this plea.
5. The only other question which remains to be considered is whether the 2nd mortgage is invalid for want of attestation. It was discovered in the course of the case that there were no witnesses to the appellant's signature at the foot of the document. But at the back there were three witnesses to his signature before the Registrar admitting the execution of the document. The appellant in his written statement acknowledged that he has executed the document though he made no admission with regard to the attestation. He did not, however, raise any objection to it until the 1st respondent was in the witness box. It was then that his learned Advocate observed that the document had not been attested in the ordinary way. The learned Judge, however, decided that the document had been rightly attested and in this connection relied on the decision in Veerappa Chettiar v. Subramania Aiyar : AIR1929Mad1 . Before discussing the judgment in that case, it is necessary to refer to Section 59 and Section 3 of the Transfer of Property Act. Section 59 provides that where the principal money secured is one hundred rupees or upwards a mortgage, other than a mortgage by deposit of title deeds, can be effected only by a registered instrument signed by the mortgagor and attested at least by two witnesses. Section 3 defines the word 'attested' in relation to an instrument. The word 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 to 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. In Veerappa Chettiar v. Subramania Aiyar : AIR1929Mad1 , a Full Bench of this Court held that the signatures of the registering officer and of the identifying witnesses affixed to the registration endorsement under Sections 58 and 59 of the Registration Act are a sufficient attestation within the meaning of the Transfer of Property Act and its subsequent amending Acts. But in that case there was evidence that the identifying witnesses had signed in the presence of the executant, and this fact was lost sight of by the learned trial Judge in the present case. In Ramanathan Chetty v. Delhi Batcha Tevar (1930) 60 M.L.J. 302 it was held that the mere endorsement by the Sub-Registrar of an admission of execution and the signature of the witnesses present at the time are not sufficient to satisfy the requirements of Section 59 of the Transfer of Property Act, as amended by the Acts of 1926 and 1927, where there is no evidence to the effect that the signatures of the witnesses to the admission were affixed to the document in the presence of the admitting executants or any endorsement to that effect. When this question of attestation was raised in the trial Court the learned Advocate for the 1st respondent asked the learned Judge to allow evidence to be called apparently in order to prove that the identifying witnesses had seen the appellant sign the instrument or that they had received from him a personal acknowledgment of his' signature and had themselves signed in his presence. The learned Judge, however, did not consider that this evidence was necessary in view of the pleadings and the decision in Veerappa Chettiar v. Subramania Aiyar : AIR1929Mad1 . We are, however, unable to share this opinion. The document as it stands does not show that the signatures of the identifying witnesses were affixed in the presence of the appellant. In these circumstances we consider that the proper course will be to send the case back to the trial Court to take the evidence which the parties may wish to offer on this question and to state its findings on the evidence. The record of the case will then be returned to this Court.
6. The decree of the trial Court stands so far as the mortgage of the 2nd April, 1921, is concerned. The question of the validity of the mortgage of the 25th April, 1921, will be decided after receipt of the record from the trial Court. The trial Court will submit its findings within two months. Ten days will be allowed for objections.
7. In pursuance of the directions contained in the above order, the principal City Civil Judge, Madras, submitted the following
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This appeal coming on for final hearing after the receipt of the Finding of the lower Court, the Court delivered the following