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Janaki Nath Ray Vs. Aswini Kumari Devi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in60Ind.Cas.736
AppellantJanaki Nath Ray
RespondentAswini Kumari Devi
Cases ReferredBurdett v. Spilsbury
Excerpt:
transfer of property act (iv of 1883), section 59 - mortgage--deed--attestation, whit amounts to. - .....it ; if he subscribes as a witness, he is then attesting witness.4. i am inclined to think that what has happened in this case is a sufficient compliance with section 59 of the transfer of property act; and i do not think that, to validate the third page of the mortgage-deed, it was necessary for the two witnesses to sign the third page of the mortgage-deed.5. in these circumstance, the appeal fails and it is dismissed with costs.walmsley, j6. i agree.
Judgment:

Greaves, J.

1. This is an appeal by a puisne mortgagee, defendant No. 2. The Brat defendant executed a mortgage in favour of the plaintiff on the 10th Sravan 1310, The document consisted of three sheets. Tae fasts as found are as follows:

2. The mortgagor signed the second sheet in the presence of two witnesses who wrote their names at the foot of the document as having witnessed the signature of the, mortgagor. Then, apparently, some addition was made and a third &h;'e& was added including other properties which I under stand are comprised in the security given to the second defendant, the puisne encumbrancer. Then the third sheet was signed by the mortgagor in the presence of the same witnesses who wrote their names on the second sheet. But so far as third sheet is concerned, the names of those witnesses do not appear on that sheet.

3. It is contended on behalf of the appellant, that, this being so, the mortgage cannot be enforced so far as regards the properties comprised in the third sheaf; and it is urged that there has been no compliance with Section 59 of the Transfer of Property Act inasmuch as the witnesses are said not to have attested the third sheet. We have been referred to several authorities including the case of Shamu Patter v. Abdul Kadir Rowuthan 16 Ind. Cas. 250 : 35 M. 607 : 23 M.L.J. 321 : 16 C.W.N. 1009 : 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.).

4. Now, it seems to us that that case is no assistants to us with regard to the question we have to decide. All that that case decides is that it is not sufficient for the executant to sign his name first in the absence of the witnesses and afterwards to acknowledge his signature in their presence, and that this is not a sufficient compliance with the provisions of action 59 of the Transfer of Property Act. But there are some passages with regard to certain cases which are cited in the judgment which have some bearing on the question we have to decide At page 61 of that volume, a reference is made to the case of Brynn v. White (1850) 2 Rob. Ecc. 315 at p. 317 : 14 Jur. 919 : 163 E.R. 1330, in which Dr. Lushington laid down that attest means the persona shall be present and see what passes, and shall, when required, bear witness to the facts.' It is true that on the same page there is a reference to another case, the case of Burdett v. Spilsbury (1843) 10 Cl, & F. 340 ; 59 R.R. 105 : 8 E.R. 772 The Lord chancellor summed up the conclusion in these words:

The party who sees the Will executed is in fact a witness to it ; if he subscribes as a witness, he is then attesting witness.

4. I am inclined to think that what has happened in this case is a sufficient compliance with Section 59 of the Transfer of Property Act; and I do not think that, to validate the third page of the mortgage-deed, it was necessary for the two witnesses to sign the third page of the mortgage-deed.

5. In these circumstance, the appeal fails and it is dismissed with costs.

Walmsley, J

6. I agree.


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