Patna High Court
Dahu And Anr. vs Jamadar Rai And Ors. on 1 February, 1949
Equivalent citations: AIR1951PAT368, AIR 1951 PATNA 368
JUDGMENT Meredith, J.
1. This is an appeal under the Letters Patent from a decision of Shearer J. sitting singly. The appeal is by defendants 1st party. The suit was brought upon a mortgage created in 1927 by the appellants in favour of one Chilu Rai. Defendant 4 was Chilu's widow, and defendant 3, the widow of his son. The plaintiff is an assignee from defendant 3. The suit was decreed by the learned Munsif and the learned Subordinate Judge dismissed the first appeal.
2. It is necessary for our present purposes only to consider two of the defences taken. The defendants first party claimed that the mortgage had been redeemed by payment of the full amount to defendant 4. The learned Subordinate Judge held that this payment had in fact been made, but it could not operate as a discharge as the right to realise the debt had passed from Chilu to his son, and thence to defendant 3, and thereafter to the plaintiff. Therefore, the payment could not be recognised by the Court.
3. The second point to be noticed is that it was alleged that the mortgage was not valid because the document had not been duly attested. There were two attesting witnesses, Mathura Rai and Damar Rai. Mathura Rai (deceased) had signed for himself and had also signed on behalf of Damar, the latter not having even affixed his mark. The learned Subordinate Judge held that the signature of Damar made on his behalf, at his instance, and in his presence by Mathura was good signature, and the mortgage was, therefore, valid. This is the sole point which was raised before Shearer J. in second appeal. That learned Judge had dealt with the matter elaborately, and, as I am in complete agreement with his views, it is unnecessary to add much to what he has said. The definition of the word "attested" was inserted in Section 3, T. P. Act, by the Transfer of Property (Amendment) Act (XXVII [27] of 1926), and was further amended by the insertion of the words "and shall be deemed always to have meant" by the Repealing and Amending Act, 1927, to show that the definition had retrospective effect. The definition was made in the same words as had been used in Section 63, Succession Act (originally Section 50). In Fernandez v. Alive, 3 Bom. 382, it had been held in regard to Section 50, Succession Act, that it was necessary for the validity of a will that the actual signature, as distinguished from a mere mark, of at least two witnesses Should appear on the face of the will. This decision was followed by the Calcutta High Court in Nitye Gopal v. Nagendra Nath, 11 Cal. 429. But obviously other considerations arise with regard to the Transfer of Property Act. One is this. Before the definition of "attested" in the Transfer of Property Act, it had been held, and was recognised as good law, that a signature might be validly made by the pen of someone else provided it was done at the instance of the attesting witness, and in his presence. On this point reference may be made to Sasi Bhusan Pal v. Chandra Peshkar, 33 Cal. 861 : (4 C. L. J. 41) where the question was fully examined. Now, if the intention of the Legislature in 1926 was to alter the position, it is highly unlikely that the definition would have been made retrospective, as thereby large numbers of existing titles would have been upset, and large numbers of deeds validly attested in accordance with the previous view would become invalid. This suggests that there was no intention to alter the law in this respect, but rather to define and clarify it. The question in regard to the words "signed by the mortgagor" an Section 59, T. P. Act, was exhaustively considered fey a Full Bench of five Judges in the Allahabad High Court in Deo Narain Rai v. Kukur Bind, 24 ALL. 319 : (1902 A.W.N. 127 F.B.). Stanley C.J. considered the whole position including that under the English law and held that the word "signed" did not mean "personally autographed" unless there was some clear provision in the statute under consideration so providing. "There was no such provision in the Transfer of Property Act. In Section 59, the word "signed" was used without more. The same remarks apply to the definition of "attested" in Section 3. Here also the wording is, "each of whom has signed the instrument in the presence of the executant." I cannot usefully add to the reasoning of "Stanley C. J., which may be referred to.
4. It is argued for the appellants that a distinction should be drawn between the executant and the attesting witnesses. But I cannot find any warrant for that distinction in the Act when the same wording is used. A judgment which is material is the Division Bench decision of the Madras High Court in Nagamma v. Venkatramayya, 58 Mad. 220 : (A. I. R. (22) 1935 Mad. 178). The question under consideration there was whether the word "sign" used in Section 3, T. P. Act, with reference to an attesting witness was to be taken to be governed by the definition of that word in Section 3(52), General Clauses Act, 1897, and to include, with reference to a person who is unable to write, his mark. This question was answered in the affirmative. Though this case is not directly in point, a passage in the judgment of Beasly C.J. is very material. At p. 226 he says :
"But in our view the act of execution by the executant is so important and the physical acts to which the attestors may have to testify are so important that the Legislature deemed it necessary to set out all the four alternatives in precise language. On the other hand, no such importance appears to us to be attached to the act of the attestors provided only it is done in the presence of the executant. Whether they sign the document themselves or affix their mark to it, the mere presence of their names on the document will be sufficient prima facie evidence to show who the attestors are. The really essential part of the definition is that the attestors should be present and be assured by what they themselves see or by what the executant acknowledges before them that the executant has actually executed the document."
5. I am of opinion that the mortgage was validly attested, and this appeal must, therefore, be dismissed. The case seems to me, however, in some respects a hard one, since the appellants having already paid off the mortgage to a close relative of defendant 3 now have to pay up again. I would accordingly make no order for costs.
Manohar Lall J.
6. I entirely agree and wish to make a few observations out of respect to the able argument addressed to us by Mr. K.D. Chatterji. His chief contention was that the Legislature by amending Section 3, T. P. Act, has laid down that the instrument will be considered to be attested only inter alia if the attesting witness makes his own signature and that even if such a person is illiterate and he makes a mark, that would not be a sufficient compliance with law. I am unable to agree with this argument for the reason that the language of the definition of the word 'attested' does not warrant the adoption of such a narrow construction which would lead to great inconvenience and injustice. In this country a very large number of persons are still illiterate, and if the argument is accepted as correct it would be putting an impossible burden upon the parties to secure only literate attesting witnesses.
7. It will be observed that in the definition the words "signature" or "mark" are inserted to show that the executant must either sign the document or affix his mark; but the Legislature has been careful to omit these words "or mark" when providing for the manner in which the witness should sign. This omission indicates, to my mind, that in case of an illiterate witness he is not required even to put a mark. As I pointed out in the course of the argument, the essential requirement from an attesting witness is that he should actually be present at the time of the execution of the document and either he should have seen the executant sign or affix his mark to the instrument or he may be assured by the executant himself that he himself has signed and put the mark on the document. It was argued that unless there is a signature of the witness there will be ample room for fraud. I do not agree with this argument. In order to safeguard any fraud, the contesting party is able to know from the document itself as to who the attesting witnesses are, and he can easily satisfy the Court that such persons, though shown to be attesting witnesses, are really not so. In my opinion, Shearer J. in his elaborate judgment came to the correct conclusion, and I would entirely agree with the view expressed by the Madras High Court in Nagamma v. Venkatramayya, 58 Mad. 220 : (A. I. R. (22) 1935 Mad. 178) and with the view of the Full Bench of the Allahabad High Court in Deo Narain Rai v. Kukur Bind, 24 ALL. 319 : (1902 A.W.N. 127 F.B.). I would also approve of Sasi Bhusan Pal v. Chandra Peshkar, 33 Cal. 861 : (4 C.L.J. 41), which has taken the same view. I, therefore, agree that the appeal must be dismissed.