1. The three points taken support of this appeal are (1) that the suit is premature because the zurpeshgi lease did not expire till June 1904 and the suit was brought on the 18th September 1903; (2) that the proper remedy for the plaintiff was to bring a suit to recover possession as the zurpeshgi bond did not provide for the sale of the property in the event of dispossession and (3) that the deed is invalid as the witnesses fail to prove that it was properly attested.
2. The plaintiff's suit was brought on a zurpeshgi patta, dated the 16th September' 1895, and under the terms of that patta it was stipulated that the plaintiff was to remain in possession until the mortgage loan had been repaid. In the plaint it is alleged that on the 30th Bhadra 1309 (1902), defendant No. 1 executed a deed of sale of half of the mortgaged property in favour of defendant No. 2 and deposited with defendant No. 2 the other half share of the mortgage-money due to the plaintiff and that afterwards defendant No. 1 and defendant No. 2 in collusion dispossessed the plaintiff from the whole of the property covered by the zurpeshgi patla in the beginning of Aswin 1310 (1903).
3. The lower Courts have both found that the plaintiff has proved that he has been dispossessed by the two defendants as alleged. Under the circumstances, the provisions of Clause (b) of Section 68 of the Transfer of Property Act would apply and the mortgagee, the plaintiff, would have a right from the date of his dispossession to sue to recover the mortgage-debt. I am unable to hold that either the suit is premature or that the proper remedy for the plaintiff was a suit for possession.
4. In the next place, it has been contended that the attestation of the document is not such as fulfils the conditions of Section 59 of the Transfer of Property Act. The mortgagor who executed the zurpeshgi patta was a pardanashin Hindu lady and the evidence of the attesting witnesses is to the effect that the witnesses were present in the room where the lady signed the document but that the lady was behind a purda or screen at the time when she actually affixed her signature. No attempt was made in cross-examination to prove that the lady was not the person who was behind the purda or that she did not herself sign the document. Witness No. 1, to whose evidence I have been referred, distinctly says that the lady signed and sealed the document and he further adds in cross-examination that the lady appeared before him; and from this it appears to me to be clear that the evidence adduced sufficiently proves that the lady, the mortgagor, was the person who was behind the purda and signed the deed.
5. The learned District Judge has held that having regard to the custom of this country such an attestation, as has been proved in this case, is a sufficient compliance with the provisions of Section 59 of the Transfer of Property Act and, in my opinion, this view is correct
6. The learned pleader for the appellant, however, relies on two cases to support his contention that the attesting witness must actually see the person sign. The first is the case of Abdul Karim v. Salimun 27 C. 190. That case is, however, clearly distinguishable from the present, for, the learned Judge who decided that case ruled that where a person who executed a deed afterwards admitted to witnesses who were not present at the time when he signed the document that he had signed it, the witnesses to whom that admission only was made could not be regarded as attesting witnesses within the meaning of Section 59 of the Transfer of Property Act; In the present case, according to the evidence, the witness was actually present in the room where the lady was when she signed the document, and it was not suggested that the attestation was made on the admission only made to him by the lady that she had signed it previously.
7. The second case relied upon is the case of Sasi Bhushn Pal v. Chandan Peshkar 4 C.L.J. 41 : 33 C. 861. That case is, however, no authority on the point now before me, for what was held in that case was that if a witness was present and saw a document executed, it was not essential for the purpose of attestation that that witness should himself sign his own name.
8. In support of the view taken by the learned District Judge the learned Vakil for the respondent has referred me to the case of Harendrararain Acharji Chowdhury v. Chandralcanta Lahiri 16 C. 19 which certainly goes to support the view that a document executed in the manner in which the zurpeshgi patta in the present case is proved to have been executed, is sufficiently attested for the purpose of Section 59 of the Transfer of Property Act. The learned Judges in that case referred to two English cases, the facts of which certainly resemble very closely those of the present case, and that case supports the view which I take that the attestation is sufficient to comply with the provisions of Section 59 of the Transfer of Property Act when a document is signed by a purdanashin lady in the presence of witnesses even though owing to there being a screen between them, the witnesses at the time of the signature are not able to see the lady, and especially when there is other evidence to prove that the person who was behind the purda and who signed was the lady whose signature was affixed to the document. I may observe that Mr. Justice Ghose who was one of the Judges who decided the case of Abdul Karim v. Salimun 27 C. 190 was also one of the Judges who decided the case of Harendranarain Acharji Chowdhry v. Chandrahanta Lahiri 16 C. 19. In my opinion the attestation of the document was in this case sufficient to meet the provisions of Section 59 of the Transfer of Property Act and I do not think that the cases on which, the learned Vakil for the appellant relies are any authority for the opposite view.
9. I therefore dismiss the appeal with costs.