1. This is an appeal by the defendant and arises out of a suit brought by the plaintiff to enforce a mortgage security said to have been executed by the defendant and his mother Anandamoyi. It is said that both mother and the son took a loan of Rs. 500, and executed the mortgage bond in suit some time in the year 1318 B.S. The plaintiff claimed a sum of Rs. 2,224, odd including the principal and interest at the rate of Re. per mensem with yearly rests. Anandarnoyi died leaving the defendant now appellant as her son and heir. The main defence of Anandamoyi which is necessary to Consider for the purpose of the present appeal is that the mortgage cannot, be enforced against her as it is not attested in accordance with the provisions of the Transfer of Property Act as amended by the Act of 1926. the plots covered by the mortgage which belong to Anandamoyi are the first four plots of schedule kha of the plaint. The Subordinate Judge who tried the suit in the first instance gave effect to the defence of Anandamoyi and held that there has not been an attestation by two witnesses as is required by the statute so far as Ahahdamoyi is concerned and he directed the sale of the mortgaged properties except the first four plots of schedule kha lands belonging to Anandamoyi and he dismissed the suit in respect of those plots. Against this decision an appeal was taken to the Additional District Judge of Hooghly and the learned District judge has modified the decision of the Subordinate judge decreeing the plaintiff's suit in full.
2. Against this decision the present appeal has been brought by the defendant in his capacity as representative of his mother Anandamoyi and he contends that so far as Anandamoyi is concerned there has been no proper attestation by two witnesses; as the law requires. It appears that the District Judge has come to the conclusion that the Sub-Registrar who authenticated the document on the admission of execution by the lady herself is an attesting witness and that being so, the mortgage bond so far as she is concerned had been duly attested. He relied on the circumstances disclosed by the evidence furnished by endorsement made by the Sub-Registrar on the back of the mortgage bond that there was an admission of execution by Anandamoyi before the Registrar. There is no finding in the judgment of the Subordinate Judge nor is there any evidence that the signature and the seal of the Sub-Registrar were affixed to the document in the presence of Anandamoyi. The word 'attest' has been defined by Section 35 of the Transfer of Property Act as amended by Act XXVII of the year 1926 read with the further amending Act, namely, Act X of 1927 by which it has been held that the word 'attest' always meant attestation on admission by the executant before the person attesting the document, But by this definition as given in the Act and apart from the Act a person who has received an acknowledgment of the executant's signature cannot be said to be an attesting witness unless he himself has put his seal or affixed his signature in the presence of the executant. This element is wanting in this case. The Subordinate Judge has relied on the decision of Mr. Justice B.B. Ghose and Mr. Justice Roy, in the case which has been fully reported in Radha Mohan Dutta v. Nripendra Nath Nandy : AIR1928Cal154 . That case has been commented on by the learned Chief Justice and Mr. Justice Mukerji in a later decision in the case of Abinash Chandra Bidyanidhi Bhattacharjee v. Dasarath Malo : AIR1929Cal123 . The learned Chief Justice in delivering the judgment of the Court made the following observations which are pertinent to the controversy now in hand.
It remains to consider in the present case another decision of this Court, namely, the decision in Radha Mohan Dutt v. Nripendra Nath Nandy : AIR1928Cal154 . In that case as in the present, the mortgagor at the time of registration admitted the execution of the mortgage deed and the Sub-Registrar by his signature and seal acknowledged or asserted on the document that execution had been admitted by the mortgagor. Accordingly, in the case to which i am now referring it was held that the Court would take judicial notice of that signature and seal and that the Sub-Registrar was a good attesting witness as required by law. It appears to me that the learned Judges in that case may not have paid sufficient attention to the circumstance that by Act XXVII of 1925 and indeed apart from that Act, it is necessary that each of the witnesses should have signed the instrument in the presence of the executant it does not appear that there was any evidence before the learned Judges that the Sub-Registrar had affixed his signature or seal in the presence of the mortgagor. But, in the case before us now, it is quite clear that there is no such evidence at all. In view of the fact that the instrument is an old one now, it seems unreasonable that we should reopen the matter by sending the case for further evidence.
3. These observations fit in accurately with, the facts of the present case for here there is an absolute lack of evidence chat the. Sub-Registrar affixed his signature or put his seal on the mortgage bond in the presence of the lady executant Anandamoyi. In those circumstances I think that the District Judge is not right in modifying the decision of the Subordinate Judge.
4. The result is that the decree and decision of the District Judge must be set aside and those of the Subordinate Judge must be restored. There will be no orders as to costs either of this Court or of the lower Appellate Court. The defendant will have, two months' time from this date to put in the mortgage money failing which the mortgaged property will be sold.
5. Leave has been asked for in this case to file a further appeal under Section 15 of the Letters Patent. But I do not consider this case to be fit for such an appeal. The leave is refused.