Patna High Court
Bar Kuarin Alak Manjari Kuari And Anr. vs Sircar Barnard And Co. on 13 June, 1921
Equivalent citations: 62IND. CAS.668, AIR 1922 PATNA 49
JUDGMENT Das, J.
1. This was a suit instituted by the respondents against the appellants to enforce a mortgage-bond executed by the latter on the 6th April 1903. The suit was contested by the appellants on two grounds, first, on the ground that the mortgags-bond not having been attested according to law was not enforceable against them, and, secondly, on the ground that the mortgage was not intended to be acted upon and that the plaintiff Company by an agreement entered into by and between them and Maharaja Kumar Jagat Mohan Nath Sahi Deo, the husband of the defendants, in consideration of a license granted by the Maharaj Kumar to the plaintiffs exonerated the defendants from all liabilities under the deed of mortgage. The learned Subordinate Judge has rejected the contentions advanced on behalf of the defendants and has given the plaintiffs a decree for the full amount claimed,
2. I will first examine the contention based on Section 59 of the Transfer of Property Act. That Section provides that ''where the principal money secured is one hundred rupees or upwards, a mortgage can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses." The meaning of the word "attested" has been considered in various oases. It is sufficient to refer to Burdett v. Spilsbury (1842) 10 Clause & Fin. 340 : 59 R.R. 105 : 8 E.R. 772, where the Lord Chancellor stated the law 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 an attesting witness."
3. It will appear, then, that two conditions must he satisfied before the validity of the document is established as against the mortgagor; first, there must be at least two persons who see the document actually executed, and, secondly, these persons must subscribe as witnesses. As Abdul Rahim, J. said in Muniappa Chettiar v. Vellachamy Mannadi 49 Ind. Cas. 278 : (1918) M.W.N. 853 : 25 M.L.T. 19 : 9 L.W. 5: "Attestation does not consist merely in seeing the execution of a document. It requires a further act, that is, subscribing the name of the witness on the document as having seen the execution." In the ease before his Lordship, the mortgage-bend was executed by two persons. One of them executed it in his own house in the presence of two attesting witnesses, Afterwards, the document was taken to the jail, when the other executant executed it. The attesting witnesses, who had already attested the document, went to the jail and saw the execution of it by the other executant, but they did not subscribe their names again as attesting witnesses after the document was executed by the second executant in jail. It was held by his Lordship, with the concurrence of Old filed, J., that the mortgage-bond could not be enforced as against the executants, It seems to me that if, as has been suggested, the rule stated by the Lord Chancellor in Burdett v. Spilsbury (1842) 10 Clause & Fin. 340 : 59 R.R. 105 : 8 E.R. 772, and recognized in Section 59 of the Transfer of Property Act, was deliberately adopted to serve as a barrier against perjury and fraud, [See Ellis v, Smith (1734) 1 Ves. Jur. 11 : 30 E.R. 205], it must be established that the persons, alleged to be attesting witnesses, not only saw the execution of the document, but also subscribed their names on the document as having seen the execution. Any other view would open the door to fraud and perjury and enable a party to produce witnesses to speak to the factum of execution in their presence when their names do not appear in the document as attesting witnesses. This is at the bottom of the rule enunciated in Ram Bahadur Singh v. Ajodhya Singh 34 Ind. Cas. 370 : 1 P.L.J. 1129 : 20 C.W.N. 699 : 3 P.L.W. 93, that a person whose name appears on the deed merely as scribe is not such a witness as is required by Section 59 of the Transfer of Property Act, although he may have actually seen the deed executed.
4. Now, how does the case stand on facte? On a mere inspection of the document, it does not appear that it was attested by at least two witnesses. The point is of such vital importance to the plaintiffs that I think it necessary to set out that portion of the document which contains the signatures on the margin. That portion is as follows Signature.... Srimati Alangamanjari Kueri Barkuerain Sahib. By my own pen.
Signature.... Srimati Mohan Manjari Kueri Chotkuerain Sahib. By my own pen.
Signature.... Maharaj Kumar Jagat Mohan Nath Sah Deo of Chota Nagpnr.
Witnessed by.... Sabral or Sapbal (This is due to the inability of the translator to read the name correctly in the vernecular).
5. The first two signatures are of the appellants, the actual executants of the document, The third signature is of their husband, and the last signature is of the attesting witness. Prima facie, the document was attested by only one witness, Sabral or Saphal, but it was urged on behalf of the respondent that, as the Maharaj Kumar was not one of the executants, he must have signed the document as an attesting witness. The answer of the defendants to this argument is that he does not purport to sign the document as an attesting witness as Sabral or Saphal does, and they rely upon the recital in the mortgage-bond as conclusively establishing that be put his signature on the document in another capacity. That recital which has been more correctly translated in the judgment of the learned Subordinate Judge runs as follows:--"The deed is executed by us with consent and permission of our husband so that he may not in future raise objection to realization of debt by sale of mortgage property (villages). Our husband signed as witness in the bond in evidence of the above fact." In my judgment this recital conclusively establishes that the Maharaj Kumar did not sign the document as an attesting witness, but as giving his consent to the transaction.
6. It was strongly contended on behalf of the respondents that as the evidence establishes that the Maharaj Kumar signed the document after seeing the execution of the document by his wives, it must follow that he signed as an attesting witness. The evidence on this point is conflicting; but I entirely accept the evidence of Mr. Ambler that the Maharaj Kumar took the document to the ladies who sat behind the purdah and brought it back after execution to the Sub-Registrar. It was open to the learned Subordinate Judge on this evidence to find, as he hag found, that the Maharaj Kumar saw the execution of the document by the ladies. I will also accept the finding of the learned Subordinate Judge that the Maharaj Kumar signed the document after execution of the same by the ladies. But these findings of fact do not, in my judgment, establish that the Maharaj Kumar was an attesting witness to the document. In the first place, he does not purport to sign the document as an attesting witness. In the second place, the document establishes that he signed the document as giving his approval to the transaction, and not as an attesting witness. I cannot distinguish this case from the ease of a scribe who signs a document after seeing its execution by the executants. To hold otherwise would be to open the door to perjury and fraud which it was the intention of Section 59 of the Transfer of Property Act to prevent. I hold that the Maharaj Kumar, not having subscribed as a witness, is not an attesting witness. It follows that the mortgage-bond was not attested by at least two witnesses, and that it cannot be enforced against the mortgagors.
7. The conclusion at which I have arrived on this point is sufficient to dispose of the appeal, but, as the other question raised by the defendants has been argued at great length before us, I will shortly state my reasons for agreeing with the view taken by the learned Subordinate Judge. The appellants strongly rely upon the deed of agreement between their husband, the Maharaj Kumar, and the plaintiffs (Exhibit C) and contend that, by virtue of that agreement, the plaintiffs exonerated the defendants from their liabilities under the deed of mortgage. But it must be remembered that that document rests on the hypothesis that the estate of the Maharaj Kumar had been released from the operation of the provisions of the Chota Nagpur Encumbered Estates Act and that the Maharaj Kumar was competent to enter into an agreement in respect of the minerals lying under his zemindari. The substance of the transaction appeared to be this, the plaintiffs were anxious to secure a prospecting license from the Maharaj Kumar in respect of coal and other minerals and stones lying under his Zemindari, but it was clearly impossible for them to secure any license or lease from the Maharaj Kumar until his estate was released from the operation of the Chota Nagpur Encumbered Estates Act. The plaintiffs accordingly lent the money necessary to secure a release of the estate from the operation of the provisions of Chota Nagpur Encumbered Estates Act, on the security of the Khorposh properties belonging to the defendants, and then entered into an agreement with the Maharaj Kumar whereby the Maharaj Kumar granted a prospecting license to the plaintiffs and agreed to grant lease or leases to the plaintiffs whenever, within twenty years from the date of the agreement, they might apply for the same, and the plaintiffs on their part exonerated the defendants from all liabilities under the deed of mortgage and agreed or, rather, assumed that the money had in fast been paid to the Maharaj Kumar, and not to the ladies. The appellants strongly rely upon Clauses 1 and 2 of the deed of agreement which run as follows:
1. That the sum of one lakh five thousand rupees is fixed as the consideration for this agreement, the said sum being payable by the Company to the Kuwar Saheb.
2. That with the mutual consent of the parties hereto, the said sum of one lakh five thousand rupees is applied in satisfaction of the debt due to the Company by the said Ranis Srimati Bari Kumarain Alang Manjari Kumari and Srimati Chhoti Kumarain Saheb Mohan Manjari Kumari under the hereinbefore recited instrument of mortgage and accordingly the Company doth hereby exonerate the said Ranis from all liabilities under the said dead of mortgage and the Kumar Saheb hereby admits receipts of the consideration of one lakh five thousand rupees in the manner above stated.
8. They contend that the essential reality of the loan is clearly recognised, namely, that it was a loan made to the Maharaj Kumar and not to his wives, and that the plaintiffs expressly exonerated the defendants from their liabilities under the deed of mortgage upon the Maharaj Kumar admitting receipt of the consideration of one lakh five thousand rupees in the manner provided in the deed of agreement.
9. The weakness of the argument seems to be that the entire agreement rested on the hypothesis that the debts due by the Maharaj Kumar had been repaid and his estate released from the operation of the provisions of the Chota Nagpur Encumbered Estates Act. Until the estate was so released, the Maharaj Kumar was clearly incompetent to enter into any agreement in respect of his estate. Now, this agreement gave no right whatever to the plaintiffs as against the Maharaj Kumar; upon the release of his estate from the operation of the Chota Nagpur Encumbered Estates Act the Maharaj Kumar might repudiate his obligation under the deed of agreement. In other words, the agreement was not capable of being enforced against the Maharaj Kumar. Now the essential element in novation of a contract is that the right against the original contractor is relinquished and the liability of the new contracting party accepted, provided, and this is important, the substituted contract is one capable of being enforced. Nundo Kisore Lall v. Musammat Ramsookhee Kooer 5 C. 215 : 4 Ind. Jur. 625 : 4 C.L.R. 361 : 2 Ind. Dec. (N.S.) 747. Here the substituted contract was not capable of being enforced and, in my view, was not intended to take effect until the release of the estate of the Maharaj Kumar from the operation of the provisions of the Chota Nagpur Encumbered Estates Act. I regret the conclusion at which I have arrived on this point, because the correspondence leaves no doubt in my mind that the Maharaj Kumar, in pursuance of another agreement between him and the plaintiffs (Exhibit C) spent no less than Rs. 44,000 in securing the rights in certain jagirdaries which under the agreement was payable to the Maharaj Kumar out of the salamies which the plaintiffs were required to pay when taking leases. The evidence establishes that, far from repudiating the agreement, the Maharaj Kumar was always ready and willing to abide by the terms thereof, but that the plaintiffs, owing to their own difficulties, found it impossible to take the leases from the Maharaj Kumar, But this is entirely irrelevant, as, under the law, the Maharaj Kumar was incompetent to enter into any agreement in respect of his estate at a time his estate was being managed under the provisions of the Chota Nagpur Encumbered Estates Act. While 1 agree, therefore, with the learned Subordinate Judge that the defendants cannot take advantage of Clause 2 of the agreement between their husband and the plaintiffs, the suit must nevertheless fail on the ground that the validity of the mortgage-bond has not been established as against the mortgagors. I must allow the appeal, set aside the judgment and decree passed by the Court below, and dismiss the plaintiffs' suit with costs in both the Courts.
Adami, J.
10. I agree.