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Radha Mohun Dutt Vs. Nripendra Nath Nandy and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1928Cal154
AppellantRadha Mohun Dutt
RespondentNripendra Nath Nandy and ors.
Cases Referred and Amarendra Nath Ghatterjee v. Kasi Nath Chatterjee
Excerpt:
- .....viz., mr. sambhu nath banerjea. this gentleman was a vakil of this court at the time when he attested the bond. he is now an advocate and a barrister-at-law. this gentleman stated in bis cross-examination that mr. susil chandra sen, the other attesting witness, was not present when the document was executed and that the signature of mr. susil sen was not made in his presence. with regard to his own attestation : he said that he was present at the time of the mortgage-bond, that hesaweadha mohun dutt put his signature on the mortgage-bond and that he attested it. prom his evidence it is quite clear that susil chandra sen was not present at the time when the mortgagor put his signature on the bond.2. according to the definition of 'attestation,' as interpreted by the privy council in.....
Judgment:

1. This appeal by defendant 2 arises out of a suit brought by the sub-mortgagee against the sub-mortgagor and the original mortgagor. Defendant 2 was the original mortgagor. The mortgage bond is dated 27th February 1920, and was executed in favour of defendant 1. Defendant 1 sub-mortgaged his right to the plaintiff by a deed dated the 18th January 1921. The Subordinate Judge, passed a decree in favour of the plaintiff. Defendant 2, in his appeal, takes the ground that neither the original mortgage bond nor the sub-mortgage-bond was properly attested. With regard to the bond executed by the original mortgagee, the contention of the learned vakil for the appellant is untenable, because there is the evidence of one witness that the other witnesses also at tested the document, and there was no cross-examination on the point. The argument with regard to the original mortgage bond has more substance Of the two witnesses, whose names appear as attesting witnesses, one was examined, viz., Mr. Sambhu Nath Banerjea. This gentleman was a vakil of this Court at the time when he attested the bond. He is now an advocate and a barrister-at-law. This gentleman stated in bis cross-examination that Mr. Susil Chandra Sen, the other attesting witness, was not present when the document was executed and that the signature of Mr. Susil Sen was not made in his presence. With regard to his own attestation : he said that he was present at the time of the mortgage-bond, that hesawEadha Mohun Dutt put his signature on the mortgage-bond and that he attested it. Prom his evidence it is quite clear that Susil Chandra Sen was not present at the time when the mortgagor put his signature on the bond.

2. According to the definition of 'attestation,' as interpreted by the Privy Council in the case of Shambu Patter v. Abdul Kadir Bowthan [1912] 35 Mad. 607, the attesting witness, in order to prove legal attestation of a document, must have seen the executant put his signature to the document and, in that view, it should have been held, as the appellant contends, that the document was not properly attested.

3. The learned Subordinate Judge, however, was of opinion that Mr. Sambhu Nath Banerjea, having given his evidence five years after the event, might not distinctly remember the details. That is quite possible. But the difficulty in supporting his judgment, on the ground the Subordinate Judge has stated, is that there is no other evidence on the record to prove proper attestation. The mortgagee even does not give his evidence that the other witness was present and had seen the execution. The Subordinate Judge further says that, when the mortgagor admits execution, the document should bind that person. The difficulty, again, in accepting this proposition is that the defendant 2, from the very outset, pleaded that the document was not properly attested. Under these circumstances the learned advocate for the original mortgagee, defendant 1, asked us to take the evidence of the other attesting witness, Mr. Susil Sen, who was then an attorney-at-law and acted on behalf of the mortgagee as a member of the firm of Messrs. Dutt and Sen. Mr. Susil Sen is also a vakil of this Court, and the learned advocate for defendant 1 requested us to examine this gentleman in furtherance of justice.

4. It was pointed out to us that that gentleman was present on several occasions in the Court below to give evidence, but, unfortunately, the Court had no time to take up this case on those dates which was adjourned from time to time. To the plaintiffs' misfortune, the case was taken up on a date when Susil Sen was unable to reach the Court. Apparently, because the presiding officer was in favour of the plaintiffs' contention, no application was made before the Judge to have an adjournment for the examination of Susil Sen. Under these circumstances, we felt inclined to examine this gentleman. But we are relieved from taking that course by reason of the new amendments of the Transfer of Property Act, which were pointed out to us by Babu Gour Mohun Dutt appearing on behalf of the plaintiff-respondent. These amendments are embodied in Acts 27 of 1926 and 10 of 1927. Act 27 of 1926 gives a new definition of the word 'attested' by insertion of a clause in Section 3, T.P. Act, after the definition of the word 'instrument.' Shortly stated, it is this: the word 'attested' means

attested by two or more witnesses each of whom has seen the executant signor has received from the executant a personal acknowledgment of his signature or mark, 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.

5. Babu Gour Mohun argues that this document was registered and the mortgagor acknowledged execution before the Sub-Registrar, and the endorsement of the Sub-Registrar to the document was to the effect that the execution was admitted by Eadha Mohan Dutt who was identified by Sambhu Nath Banerjea, Vakil, High Court, Calcutta. Then follows the signatures of Ridha Mohan Dutt, the mortgagor, and of Kripa Nath Dutt, District Registrar of Assurances. It is further argued by Babu Gour Mohun that this being the fact, we should hold, by reference to the cases cited on the question of proper attestation of wills, that the acknowledgment before the Sub-Registrar and the signature of the Sub-Registrar below the endorsement on the deed amount to sufficient attestation under the amended definition in Act 27 of 1926.

6. With regard to the question of wills : this has been held to be a proper attestation from a very early date : see the cases of Hurro Sundari Dabia v. Ghunder Kant Bhuttaeharjee [1881] 6 Cal. 17 and Amarendra Nath Ghatterjee v. Kasi Nath Chatterjee [1900] 27 Cal. 169. There was some difference of opinion between this Court and other High Courts as to whether this new Act 27 of 1926 applies to transactions which had taken place before the passing of the Act. A Division Bench of this Court seems to have been of opinion that it was not applicable to such transactions. A later Act, however, was passed, viz., Act 10 of 1927, which is described as an Act to amend certain enactments and to repeal certain other enactments. It has been enacted with regard to the Transfer of Property (Amendment) Act, 1926, that in Section 2 in the definition of the word 'attested,' after the word 'means' the words 'and shall be deemed always to have meant' shall be inserted. This leaves no doubt in the construction of the Act, that it should be applied to all transactions, however ancient they may be, to which the Transfer of Property Act itself is applicable. In that view, the contention raised by Babu Gour Mohun Dutt must be given effect to.

7. One point was urged by the learned advocate for the appellants, that the Sub-Registrar should have been examined in order to prove the attestation made by him. But that is not at all necessary, because we must take judicial notice of the endorsement of the Sub-Registrar and his signature. The next point urged is that both these amendments of the Transfer of Property Act came into operation after the judgment of the Subordinate Judge and should not, therefore, be applied to this case. This argument does not appear to be of any substance, because, even if the Subordinate Judge had dismissed the suit on the ground that there was no proper attestation, we should have been bound to give effect to the legislative definition of the word 'attestation' although the Act was passed after the decree. The arguments raised on behalf of the appellants having failed, this appeal must be dismissed with costs. Costs of the appeal will be added to the mortgage-money of the plaintiff. Defendant 1, the original mortgagee, will bear his own costs in this Court.


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