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Mahar Ali Shaha Vs. Tofaluddi Peada and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1899)ILR26Cal78
AppellantMahar Ali Shaha
RespondentTofaluddi Peada and ors.
Cases ReferredHorendra Narain Acharji Chowdhry v. Chandra Kanta Lahiri
Excerpt:
mortgage - transfer of property act (iv of 1882), section 59--mortgage deed signed by the mortgagor, attested by one witness, and containing an acknowledgment by the sub-registrar, whether valid--indian succession act (x of 1865), section 50--mortgage being invalid whether a money decree can be made upon the convent in the bond. - .....a personal acknowledgment of his signature or mark or the signature of some other person,' and the registrars signature would come under the last description of attestation referred to in the third clause of section 50 of the indian succession act. but section 59 of the transfer of property act does not show that the attestation therein contemplated is anything other than the attestation of the act of signing by the executant; and it cannot, in the absence of any express provision to that effect, be taken to include the attestation of the executant's admission of having signed the document.5. it was then contended that though this mortgage may be invalid under section 59 of the transfer of property act, still the plaintiff would be entitled to have a declaration that the property in suit.....
Judgment:

Francis W. Maclean, K.C.I.E., C.J.

1. Upon the question whether this is or is not a valid mortgage, having regard to the provisions of Section 59 of the Transfer of Property Act, I think it is not. That section says that a mortgage can only be effected by a registered instrument, signed by the mortgagor and attested by at least two witnesses. The question of attestation is a question of fact, and this mortgage was not attested by two witnesses; for I am unable to accept the argument for the plaintiff that the acknowledgment by the Sub-Registrar is equivalent to the attestation of an attesting witness. But although as a mortgage the deed may not stand, I think the plaintiff is entitled to recover upon the covenants in the bond, the principal money which the defendants covenanted to pay. There is no question of this money demand being barred by limitation, and he is entitled to a money decree on that covenant.

2. Then, as regards the interest, which is at a high rate, the question of liability must depend upon the question whether the plaintiff did or did not obtain possession of the land covered by the mortgage. Upon that question, as no evidence was gone into on the point in either of the lower Courts, I think there must be a remand to the Lower Appellate Court, in order that it may ascertain whether the plaintiff did or did not get possession. We think that, under the circumstances, there should be no order as to the costs of this appeal.

Banerjee, J.

3. I am of the same opinion. The suit out of which this appeal arises is brought to enforce a mortgage bond. The mortgage bond is attested by only-one witness; and the question is whether it can be valid, having regard to the provisions of Section 59 of the Transfer of Property Act. The Court of Appeal below has, in effect, held that the requirements of Section 59 have been satisfied by the Registrar's signature to the endorsement recording the admission of execution by the executant; and, in support of this view, the Lower Appellate Court refers to certain cases, of which I may mention Horendra Narain Acharji Chowdhry v. Chandra Kanta Lahiri (1888) I.L.R.., 16 Cal, 19, which are cases under Section 50 of the Indian Succession Act.

4. I am of opinion that this view is unsound. It is quite true that the signature of the Registrar at the foot of the registration endorsement embodying the admission of the executant has been held to be sufficient attestation within the meaning of Section 50 of the Indian Succession Act; but that is no reason for holding that the signature of the Registrar would be sufficient attestation within the meaning of Section 59 of the Transfer of Property Act. For Section 50 of the Indian Succession Act, Clause 3, says that a will 'shall be attested by two or more witnesses, each of whom must have seen the testator sign or affix his mark to the will or have seen some other person sign the will in the presence or by the direction of the testator, or have received from the testator a personal acknowledgment of his signature or mark or the signature of some other person,' and the Registrars signature would come under the last description of attestation referred to in the third clause of Section 50 of the Indian Succession Act. But Section 59 of the Transfer of Property Act does not show that the attestation therein contemplated is anything other than the attestation of the act of signing by the executant; and it cannot, in the absence of any express provision to that effect, be taken to include the attestation of the executant's admission of having signed the document.

5. It was then contended that though this mortgage may be invalid under Section 59 of the Transfer of Property Act, still the plaintiff would be entitled to have a declaration that the property in suit is charged with liability to satisfy the debt under Section 100 of the Transfer of Property Act. I am of opinion that Section 100 is not intended to cover a case like this. It contemplates a case in which the transaction does not amount to a mortgage, although certain property is made security for the payment of money, and not a case where property is intended to be mortgaged, but the mortgage has become invalid by reason of the mortgage-deed not fulfilling the requirements of the law.

6. Upon the question of interest and the question of the plaintiff's right to obtain a money decree, I agree entirely in the view taken by the learned Chief Justice.


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