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Jagannath Khan and ors. Vs. Bajrang Das Agarwala - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal208,62Ind.Cas.97
AppellantJagannath Khan and ors.
RespondentBajrang Das Agarwala
Cases ReferredShamu Patter v. Abdul Kadir Rowthan
Excerpt:
mortgage - attesting witness--scribe, when competent to prove execution--evidence act (i of 1812), section 68--transfer of property act (iv of 1862), section 59. - .....judge gave him a mortgage decree.3. the only point that arises in this case is whether the mortgage bond was attested as required by section 59 of the transfer of property act.4. according to the plaintiff's case, there were two attesting witnesses, hawai bashunia and kali nath sircar. as to hawai bashunia, there is no dispute. he was present when the document was executed and signed as an attesting witness. kali nath sircar was the writer of the bond. he signed the bond in two places, but not in the place set apart for the signature of witnesses. it is found by the lower appellate court that be wrote his name as a writer and not as an attesting witness, but that he was present at the time of the execution of the deed and actually saw it. whether this amounted to attestation.....
Judgment:

1. This appeal arises out of a suit on a mortgage-bond.

2. The first Court gave the plaintiff a money-decree only. On appeal, the District Judge gave him a mortgage decree.

3. The only point that arises in this case is whether the mortgage bond was attested as required by Section 59 of the Transfer of Property Act.

4. According to the plaintiff's case, there were two attesting witnesses, Hawai Bashunia and Kali Nath Sircar. As to Hawai Bashunia, there is no dispute. He was present when the document was executed and signed as an attesting witness. Kali Nath Sircar was the writer of the bond. He signed the bond in two places, but not in the place set apart for the signature of witnesses. It is found by the lower Appellate Court that be wrote his name as a writer and not as an attesting witness, but that he was present at the time of the execution of the deed and actually saw it. Whether this amounted to attestation within the meaning of Section 59 of the Transfer of Property Act, is a point on which different High Courts have held differently.

5. There are decisions of the Allahabad High Court and the Patna High Court in favour of the appellant in Badri Prasad v. Abdul Karim 19 Ind. Cas. 451 : 35 A. 254 : 11 A.L.J. 260 and Ram Bahadur Singh v. Ajodhya Singh 34 Ind. Cas. 370 : 20 C.W.N. 699 : 1 P.L.J. 129 : 3 P.L.W. 93. But this Court has held in the case of Raj Narain Ghosh v. Abdur Rahim 5 C.W.N. 454 that a person who is present and witnesses the execution of a deed and whose name appears on the document, though he is therein described merely as the writer of the deed, is a competent witness to prove the execution of the deed. This case was followed in Dinamoyee Debi v. Bon Behari Kapur 7 C.W.N. 160.

6. It is contended or behalf of the appellant that these eases of the Calcutta High Court have in effect been overruled by the decision of the Privy Council in Shamu Patter v. Abdul Kadir Rowthan 16 Ind. Cas. 250 : 35 M. 607 : 16 C.W.N. 1009 : 23 M.L.J. 321 : 12 M.L.T. 338 : (1912) M.W.N. 935 : 10 A.L.J. 259 : 14 Bom. L.R. 1034 : 16 C.L.J. 596 : 39 I.A. 218 (P.C.).

7. But in that case the present question did not arise. The Privy Council case turns on the question whether a person could attest a document on an acknowledgment by the executant that the signature on the document was his.

8. It is also contended that the Calcutta cases can be distinguished, because they turn on the interpretation of Section 63 of the Evidence Act and not on the interpretation of Section 59 of the Transfer of Property Act.

9. But the 'attesting witness' referred to in Section 68 of the Evidence Act, when the question is as to proof of a mortgage, must have the same meaning as an attesting witness in Section 59 of the Transfer of Property Act. If he be not an attesting witness in accordance with the provisions of Section 59 of the Transfer of Property Act, he cannot be a competent witness under Section 68 of the Evidence Act. We can find nothing in the present case to make this case distinguishable from the Calcutta cases sited above and we follow that decision.

10. The result is that this appeal fails and is dismissed with costs.


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