Radha Mohun Dutt vs Nripendra Nath Nandy And Ors. on 28 June, 1927
8. It remains to consider in the present case another decision of this Court, namely, the decision in Radha Mohun v. Nripendra Nath . 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 iwitness as required by law. It appears to me that the learned Judges in that ease may not have paid sufficient attention to the circumstance that by Act 27 of 1926 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. It has been suggested to us that the ordinary practice is for the Sub-Registrar to sign his statement in such cases in the presence of the mortgagor. Not only do I entertain considerable doubt as to whether this is, in fact, the ordinary practice but I need hardly say, whether it is so or not, there is no evidence that it is a practice which has been followed in this case. I do not therefore, think that the present case is complicated at all by any question as to what happened at the time of the registration. In this view, the appeal succeeds so far as against the heirs of defendant 1 and the Munsif's decree against the said defendant is restored. But the appeal must be dismissed with costs as against defendant 2. It is quite clear that the right of defendant 2 to the hut in question cannot be affected by the plaintiff's decree against the heirs of defendant 1.