1. This is an appeal against a decision of the District Judge of Nadia, dated the 25th June 1904.
2. The facts of the case are these. The plaintiff sued for a declaration of his mortgage lien over the property belonging to the defendant No. 2 and also for the issue of a temporary injunction to restrain the auction sale of that property at the instance of the defendant No. 1. The defendant No 2 (the mortgagor) admitted the bond. The defendant No. 1 contended that the bond was a fraudulent and collusive deed.
3. The Munsif found all the issues in favour of the plaintiff, but dismissed the suit on the ground that the mortgage bond was not proved according to law.
4. The Subordinate Judge remanded the case to the Munsif for examination of the witness Misser Sheikh, and then after the evidence of this witness had been recorded, he proceeded to deal with the case. He found that the mortgage bond, had been properly attested according to law and therefore decreed the plaintiff's appeal and dismissed the cross appeal of the defendant No. 1, who had again raised the contention, which he had pressed in the first Court, namely, that the deed was a fraudulent and collusive one.
5. The defendant No. 1 now appeals to this Court; and on his behalf it is urged, first, that the mortgage bond has not bean sufficiently attested according to law; and secondly; that the lower Appellate Court should have entered into the question as to , whether the mortgage deed was a fraudulent and collusive deed or not.
6. I am of opinion that both these pleas must fail.
7. It appears to me that the mortgage deed has been properly attested. There were two subscribing witnesses, Peary Mohon Biswas, the writer, and Forman Mollah. They are both dead; but the handwriting of Peary Mohon Biswas has been proved by one Sadhu Charan. Then there were three witnesses to the deed, named Misser Sheikh, Haidar and Hazrat. These three men are alleged to have witnessed the execution of the deed, and their names appear upon the deed, affixed to it by another person. Hazrat denies all knowledge of the transaction; but the other two men Misser Sheikh and Haidar both admit that they witnessed the execution of the deed and their names were affixed to it with their consent by the writer of the deed and that they touched the pen before the deed was signed.
8. It is contended by the appellant that this was not a good attestation, inasmuch as they did not make a mark in the deed themselves. It appears to me that this contention is futile, and that the deed was properly executed when the signatures of the witnesses were affixed for them to the deed by another person, with their consent, they being illiterate and not able to write. It does not appear that there is any law or any ruling of Court, which requires that the witnesses should put their mark on the deed themselves and that any such mark on the deed is implied in the word 'attest.' It appears to me that attest means only to witness the execution of a deed; and there is nothing to preclude the signatures of the witnesses in this case, from coming under the heading of attestation.
9. The question as to whether or not the deed was fraudulent and collusive does not seem to have been pressed at any length before the lower Appellate Court. The District Judge has disposed of that question by saying that there is no ground for the cross appeal. This is sufficient.
10. This appeal is accordingly dismissed with costs.
11. I agree with my learned brother that the mortgage bond in this case has been attested in a manner which, satisfies the requirements of Section 59 of the Transfer of Property Act.
12. The learned Subordinate Judge has found that three of the witnesses to the deed were illiterate and that their names were affixed to it, with their consent, by the writer, they having expressed their consent by touching the pen.
13. It is contended by the learned pleader for the defendant, appellant, that these witnesses are not attesting witnesses, inasmuch as they did not affix the marks themselves. In my opinion this contention is unfounded. Section 59 of the Transfer of Property Act requires that 'where the principal money secured is Rs. 100 or upwards, a mortgage can be effected only by a registered instrument, signed by the mortgagor and attested by at least two witnesses.' The term 'attest' is not defined in the Act; but there can be no doubt as to what it means. In the case of Freshfield v. Reed (1842) 9 M. & W. 404 : 60 R.R. 769 it was held that, where an instrument is required to be attested, the meaning is that a witness shall be present at its execution and shall testify that it has been executed by the proper person.
14. Again in the cases of Ford v. Kettle (1882) 9 Q.B.D. 139 and Roberts v. Phillips (1855) 4 E. & B. 450 : 1 24 L.J.Q. B. 171 it was held that to attest an instrument was not merely to subscribe one's name to it, as having been present at its execution, but includes also, essentially, the presence, in fact, at its execution of some disinterested person capable of giving evidence as to what took place.
15. It is obvious, therefore, that to attest is to bear witness to a fact; and there is no authority for the proposition that a witness does not attest, if he does not sign his name personally. On the other hand, so far as the meaning of the word 'signed' in Section 59 of the Transfer of Property Act is concerned it is well settled that a signature need not be , the mortgagor personally, 'but may be by some person acting on his behalf and under his authority. The question was examined fully by a Full Bench of the Allahabad High Court in the case of Deo Narain Rai v. Kuhur Bind (1902) I.L.R. 24 All. 319 where it was held by a majority of the Judges who heard that case, that 'It is not imperatively required by Section 59 of the Transfer of Property Act, 1882, that the mortgage, where the principal, money secured is Its. 100 or upwards, shall be signed by the mortgagor with his own hand or by an agent specially appointed ton that behalf. If the mortgagor is illiterate, it is a good signature if, in the presence and at the request of the mortgagor, some other person signs the mortgagor's name on his behalf as executant of the document.'
16. I entirely agree with the observations of Mr. Justice Banerji at page 335 of that report, where that learned Judge referring to the cases of The Queen v. The Justices of Kent (1873) L.R. 8 Q.B. 305 and In Re: Whitley Partners, Limited (1886) 32 Ch. D. 337 observed as follows: 'These cases are clear authority for holding that, where an enactment provides that a document should be signed by the executant, that alone does not make it indispensable that the signature should be affixed by the executant himself. No doubt at Common Law, where a person authorises another person to sign for him, the signature of the person so signing is the signature of the person authorising it. Nevertheless, there may be cases in which the Statute may require personal signature.'
17. But Section 59 of the Transfer of Property Act does not require that the document should be signed personally by the mortgagor or that the attesting witnesses should sign with their own hands.
18. Great reliance was placed on behalf of the appellant on the case of Pran Krishna Tewary v. Jadunath Trivedy (1898) 2 C.W.N. 603, which is an authority for the proposition that the attestation of the marksman to a mortgage bond is a sufficient attestation within the meaning of Section 59 of the Transfer of Property Act and Section 68 of the Evidence Act. But it was also contended that there are observations in the judgment which lend some support to the case of the appellant; and reference was made, particularly, to the following passage: 'It was argued that marksmen often only touch the pen, and even the mark, generally a cross, is not made by them, but is made by the writer of the deed. In this case, however, no question arises as to whether the mark made by a person, other than the witness, could be sufficient, the mark being shown to have been made by the witness himself.'
19. As I understand this passage, the learned Judges did not intend to lay down that, if the mark was made, not by the attesting witness, but by some person authorised by him in that behalf, that would not be sufficient compliance with the provisions of the Act. As already stated, I cannot see any sufficient reason why any distinction should be made in this respect between the signature of the mortgagor and the attestation by the witnesses.
20. Two other cases were also referred to, namely, Girindra Nath Mookerjee v. Bejoy Gopal Mookerjee (1898) 3 C.W.N. 84 and Dinamoyee Debi v. Bon Behari Kapur (1902) 7 C.W.N. 160. But I cannot find that either of these cases lends any support to the contention of the appellant. On the other hand, the case of Dinamoyee Debi v. Bon Behari Kapur (1902) 7 C.W.N. 160 shows that attestation means that, what is said to be attested, happened in the presence of the attesting witnesses. It does not go on to lay down that the attestation, to be effective, must include signature by the attesting witnesses personally.
21. I may add that in the decision of the Judicial Committee in the-case of Shambati Koeri v. Jago Bibi (1902) I.L.R. 29 Calc. 749 it was assumed that the signature by a duly authorised agent or scribe, is sufficient for the purposes of Section 59 of the Transfer of Property Act.
22. I must hold accordingly that Section 59 has been substantially complied with and that the mortgage bond, which the plaintiff seeks to enforce, is a valid instrument.