Authored By : Mookerjee, P.L. Buckland

Mookerjee, J.

1. This is an appeal by the defendant in a suit to enforce amortgage security, alleged to have been executed by him in favour of theplaintiff-respondent on the 21st April, 1903. The principal sum advanced isstated to have been Rs. 90 which carried interest at the rate of 181 per cent,per annum and was repayable on the 13th April, 1909. The present action wascommenced on the 28th November, 1917, for the recovery of Rs. 210, upon theallegation that nothing had been paid towards the satisfaction of the mortgagedebt, except three sums paid on account of interest, Rs. 16-40 in 1910, Rs. 12in 1911 and Rs. 12 in 1912. The defendant pleaded that the plaintiff was notcompetent to sue inasmuch as the real creditor was her paramour, one Hari Pal,who had been paid in full; that the bond had not been duly attested and thuscould not operate as a mortgage bond; and that the suit was barred bylimitation. The trial Court found that the real creditor was the plaintiffherself, that the bond had been duly attested, that the suit was not barred bylimitation, as it had been instituted within twelve years from the due date andin this view, made the usual mortgage-decree. On appeal, the Subordinate Judgeconfirmed the decree of the Court of first instance. On second appeal, it hasbeen argued on behalf of the defendant that the facts found show that the bondwas not duly attested, and in support of this contention reliance has beenplaced upon the decision in Upendra Chandra v. Hukum Chand, which is alsoreported as Rajani v. Panchananda (1918) 46 Cal. 522 = 48 I.C. 720 = 23 C.W.N.290.

2. The facts material for the decision of the question oflaw raised before us lie in a narrow compass. The defendant-mortgagor,Sristidhar Ghose, was illiterate and was unable to sign his name. The bond waswritten out by one Bholanath Ghose.

3. The name of the executant was at his request written outby Bholanath Ghose.

4. The actual endorsement is as follows : "SriSristidhar Ghose by the pen of Sri Bholanath Ghose." At the foot of thedocument we have the following entry; Witnesses, scribe Sri BholanathGhose"; Sri Hari Pal by the pen of Sri Bholanath Ghose."

5. Bholanath Ghose, who has been examined as a witness,states that at the request of Hari Pal who was illiterate he wrote his name.The substance of the matter consequently is that Bholanath Ghose wrote the bodyof the document, wrote the name of the executant wrote the name of Hari Pal asan attesting witness and signed his own name as an attesting witness. Thequestion arises on these facts, whether the document was attested by twowitnesses within the meaning of S. 59 of the Transfer of Property Act. Thedecision of Fletcher and Walmsley, JJ., in Upendra v. Hukum Chand; which isalso reported as Rajani v. Puchananda (1918) 46 Cal. 522 = 48 I.C. 720 = 23C.W.N. 290, shows that the question must be answered in the negative. That caseis an authority for the proposition that where no mark, seal or thumbimpression of the mortgagor appears on the mortgage-deed the scribe whoexecutes the document for, and on behalf of the mortgagor is not competent tobecome an attesting witness to attest the signature he himself has written out.

6. This decision is clearly applicable to the facts of thepresent case. We do not over look that an examination of the original documentshows that there is what looks like a small cross after the name of SristidharGhose; that was apparently put by Bholanath Ghose, and there is no suggestionthat Sristidhar Ghose executed the document by affixing thereon his mark as hemight have done (see Act III of 1885 which amends the Transfer of Property Actand makes the provisions of S. 59 supplemental to the Indian Registration Act,S. 3: see also the General Clauses Act, 1897, S. 3, Cl. 52). Here the case isthat Bholanath Ghose wrote out the name of Sristidhar Ghose at his request, andthis constituted a valid execution of the deed just as if Sristidhar Ghose hadwritten out his own name. In such circumstances, it is plain, on the authorityof the decision in Upendra v. Hukum Chand (1918) 46 Cal. 522 = 48 I.C. 720 = 23C.W.N. 290, that Bholanath Ghose was not competent also reported as Rajani v.Panchananda to attest his own signature as an attesting witness. But we havebeen pressed on behalf of the plaintiff-respondent to hold that the decision inUpendra v. Hukum Chand (1918) 46 Cal. 522 = 48 I.C. 720 = 23 C.W.N. 290 is notwell-founded on principle and to refer the matter to a Full Bench. Afterexamination of the arguments addressed to us we are unable to accede to thisrequest.

7. S. 59 of the Transfer of Property Act provides that wherethe principal money secured is Rs. 100 or upwards a mortgage can be effectedonly by a registered instrument signed by the mortgagor and attested by atleast two witnesses. Prima facie, the persons who attest are different from theperson who signs. The term "attest" is not defined in the statute andmay consequently be taken to have bean used in its ordinary sense; seeSarurijigar Begum v. Baroda Kant (1910) 37 Cal. 526 = 14 C.W.N. 974 = 5 I.C 539= 11 C.L.J. 563. where various definitions will be found quoted. The OxfordDictionary stated that the word is derived from the Latin "ad" and"testari" and means literally "to witness" or "to bearwitness." This is the sense in which the term "attestation" isused by Blackstone in his commentaries (Vol. II, p. 307):

The last requisite to the validity of a deed is theattestation or execution of it in the presence of witnesses." The samemeaning is attributed to the term by Lord St. Leonards when in his handy Bookof property Law (Vol. XVIII. p.136) he says that the attestation of a willshould be in this form: "Signed by the above testator, in the presence ofus present at the same time who have hereunto signed our name".

8. To the same effect are the observations in Wright v.Wakeford (1812) 4 Taunt 213 = 128 E.R. 310, where it was ruled that thewitnesses who attest must not only see the execution but sign their own namesas part of the same transaction, so that an attestation added after many yearsby persons who had seen the signing of the deed will not supply the defect.Reference may also be made to Hudson v. Parker (1844) 1 Rob. Eccl. 14 = 8 jur.786, where Dr. Lushington said:

To attest is to bear witnesses to a fact. Take a commonexample. A notary public attests a protest. He bears witness, not to thestatements in that protest, but to the fact of the making of these statements.So the witnesses in a will bear witness to all the statute, requires attestingwitnesses to attest, namely, that the signature was made or acknowledged intheir presence.

9. Of precisely the same import are the rules enunciated byDr. Lushington in Byren v. White (1850) 2 Rob (Eccl.) 315 = 14 Jur. 919 by LordCampbell, C.J., in Roberts v. Phillips (1855) 4 E. & B. 450 = 24 L.J. Q.B.171 = 1 Jur 444 and by Lord Landhurst, L.C., in Burdett v. Spilsbury (1843) 10Cl. & F. 340 = 59 R.R. 105 which were all quoted with approval by theJudicial Committee in Shamu Patter v. Abdul Kadir (1912) 35 Mad. 607 = 39 I.A.218 = 16 C.W.N. 1009 = 16 I.C. 250 = 23 M.L.J. 321 (P.C.) all this obviouslyimplies that the person who makes the signature is not the identical person whowitnesses that the signature has been made in his presence, We are unable toaccept the contention of the respondent that the scribe who wrote out the namesof the executant may be taken to have at the same time witnessed that fact, inother words, to have simultaneously performed a double function. It might havebeen maintained with equal plausibility that where a deed had to be executed byA and B. under authority conferred by a power-of-attorney, executes it on hisbehalf writing thereon "A by his duly constituted attorney B" B iscompetent to become an attesting witness, to witness the endorsement made byhimself. Dr. Kanjilal frankly conceded that such a position was manifestlyincongruous and untenable. But, plainly, no real distinction in principle canbe found between the hypothetical case mentioned and the concrete instancebefore us. In our opinion, there is no escape from the position that a scribecannot be an attesting witness of what he has himself written. If in the caseof execution of a document by a literate man, who can write his own name it isdeemed necessary by the legislature to have two other persons as attestingwitnesses, it is at least equally essential to have two independent attestingwitnesses when the man is illiterate and cannot write his name which is writtenfor him by another, Saroopchand v. Tularam (1911) 8 N.L.R. 17 = 13 I.C. 902. Insuch a case, one -object of the statute in requiring attestation is to ensureidentity of person and to prevent the fraudulent substitution of anotherdocument, another object may be to surround the executant with witnesses who maybe able to judge of his capacity. If for the attainment of these and otherobjects, two attesting witnesses are necessary when the executant is literate,the need is very much more imperative, where the executant is illiterate, andthe additional question must arise whether his name has really been written bya person authorised in that behalf. It is plain that the contention of therespondent ignores he fundamental distinction between execution andattestation.

10. The term "executed" signifies the actsrequired of the person who makes the deed either himself or through arepresentative, the term "attested" signifies (the act of thewitnesses who see the execution; obviously the same person cannot possess thetwofold capacity.

11. Reliance has been placed by the respondent upon a seriesof judicial decisions which are not directly in point and lend no real supportto his contention. In Dinamoyee v. Bun Behari (1902) 7 C.W.N. 160 a ladyexecuted a mortgage-deed by putting her finger mark to the same; thereafter aperson, who saw her put the finger-mark, wrote her name at her request andadded the words "by the pen of" before his name written by himself.It was ruled that the document was executed by the lady and not by him on herbehalf, and that, consequently, he was a competent attesting witness.

12. A similar view was adopted in Govind Bhikaji v. BhauGopal (1916) 41 Bom. 384 = 39 I.C. 61 = 19 Bom. L.R. 147. There an illiterateperson signed a mortgage-deed by patting his mark to it, which mark was subscribedby the scribe of the deed. The deed was attested by two independent witnesses.It was ruled that the deed had been duly executed and attested. The executionwas complete when the mortgagor, unable to writs his name, placed his markthereon. The function of the scribe ended when he signed his came at theconclusion of the body of the document; he thereafter signed his own name underthe description of the mark made by the executant, with a view to authenticatethe mark, that is, to vouch the execution of the deed by the marksman, inother words, to act as an attesting witness.

13. In Sasi Bhusan v. Chandara Peshkar (1906) 33 Cal. 861 =4 C.L.J. 41, the question arose whether for purpose of valid attestation it isessential that the witness must sign his name personally. It was ruled that adeed is properly attested when the signatures of the witnesses, who areilliterate and unable to write, are affixed for them by another person at theirrequest. The Court observed that it had previously been held, in the case ofexecutant himself that his name may be written on his behalf, by another personauthorised for the purpose, Deo Narain v. Kakur Bind (1902) 24 All. 319 = 1902A.W.N. 127 (F.B.).

14. It may be added that the view taken in Sasi Bhusan v.Chandra Peshakar (1906) 33 Cal. 861 = 4 C.L.J. 41 is not inconsistent with thatadopted in Paramhans v. Randhir (1916) 38 All. 461 = 35 I.C. 748 = 14 A.L.J 673and Ram Bahadur v. Ajodhya Singh (1916) 20 C.W.N. 699 = 1 P.L.J. 129 = 34 I.C.370 = 3 P.L.W. 93. These cases, however, do not support the proposition thatthe person who, at the request of the mortgagor writes out the name of themortgagor as executant, can also become an attesting witness, that is attestthe signature made by himself. On the other hand, the principle of thedecisions in Sarurijigar Begum v. Baroda Kant (1910) 37 Cal. 526 = 14 C.W.N.974 = 5 I.C 539 = 11 C.L.J. 563 and Debendra Chandra v. Behari Lal (1912) 16C.W.N. 1075 = 15 I.C. 668, militates against the contention "of the respondent.In both these cases, it was ruled that a person who is a party to a deed cannotbe regarded as an attesting witness, and this conclusion was supported byreference to the decisions in Freshfield v. Reed (1842) 9 M. & W. 404 = 60R.R. 769 and Wickham v. Marquis of Bath (1865) L.R. 1 Eq. 17 = 35 Beav. 59,which recognise the fundamental principle that the law insists upon attestationin certain cases in order that a witness shall be present to testify that theparty who purports to have executed the deed had done the act required;consequently, a co executant or a mortgagee cannot be an attesting witness. Thereason for this view was emphasised by Lord Selbourne, L.C. in a well-knownpassage in his judgment in the case of Seal v. Claridge (1881) 7 Q.B.D. 516 =44 L.T. 501, which may be usefully re-called here:

I was at first surprised that no authority could be founddirectly in point; but no doubt the common sense of mankind has always rejectedthe notion that the party to a deed could also attest it. I do not pay muchattention to the old rule of evidence where by interested persons were renderedincompetent as witnesses; it has now been done away with by statute. What isthe meaning of the word attestation apart from the Bills of Sale Act, 1878The word implies the presence of some person who stands by, but is not a partyto the transaction. The view which I take seems to be confirmed by thecircumstance that attestation is unnecessary, unless it is required by aninstrument creating a power or some statute. If the argument of Mr. Dugdales iscorrect, the attestation required by the Bill of Sale Act, 1878, would besatisfied by the mere repetition of the signature of a party to the deed; canthis be regarded as a useful provision I do not place much reliance upon whatwas said by Lord Eldon, L.C., in Coles v. Trecothick (1804) 9 Ves. 234 = 7 R.R.167 = 1 Smith 233, but I do rely upon Fresh Field v. Reed (1843) 10 Cl. &F. 340 = 59 R.R. 105. It follows from that case that the party to an instrumentcannot attest it. Reference may further be made to the exposition of themeaning of the term "Attestation" given by the judicial committee inthe cases of Shamu Pattar v. Abdul Kadir (1912) 35 Mad. 607 = 39 I.A. 218 = 16C.W.N. 1009 = 16 I.C. 250 = 23 M.L.J. 321 (P.C), Padavath Haldev v. Ram NomiA.I.R. 1915 P.C. 21 = 37 All. 474 = 42 I.A. 163 (P.C.) and Ganga pershad v.Isri Pershad A.I.R. 1918 P.C. 3 = 45 Cal. 748 = 45 I.A. 94 (P.C.); see alsoSarurijigar Begam v. Baroda Kant (1910) 37 Cal. 526 = 14 C.W.N. 974 = 5 I.C 539= 11 C.L.J. 563. The substance of the matter is that when an instrument isrequired to be attested, the meaning is that a witness must be present at itsexecution and shall testify that it has been executed by the proper person;Freshfield v. Reed (1842) 9 M. & W. 404 = 60 R.R. 769. To attest aninstrument is accordingly, not merely, to subscribe ones name to it as havingbeen present at its execution, but includes also essentially the presence infact at its execution of some disinterested person, capable of giving evidenceas to what took place, Roberts v. Phillips (1855) 4 E. & B. 450 = 24 L.J.Q.B. 171 = 1 Jur 444 and Ford v. Kettle (1882) 9 Q.B.D. 139 = 46 L.T. 666 = 30W.R. 741. We hold accordingly that the decision of Fletcher and Walmsley, JJ.in Upendra v. Hukum Chand (1918) 46 Cal. 522 = 48 I.C. 720 = 23 C.W.N. 290which is also reported as Rajani v. Panchanandas (1918) 46 Cal. 522 = 48 I.C.720 = 23 C.W.N. 290 is well-founded on principle and we are not prepared todepart from the rule enunciated therein. The inference follows that themortgage-deed in suit was not duly attested and consequently does not operateas a mortgage; nor does it create a charge; Shamu Patter v. Abdul Kadir (1912)35 Mad. 607 = 39 I.A. 218 = 16 C.W.N. 1009 = 16 I.C. 250 = 23 M.L.J. 321 (P.C)and Ram Narain v. Abhindra Nath A.I.R. 1916 P.C. 119 = 44 Cal. 388 = 44 I.A. 87(P.C). The mortgage-decree made by the Court below must accordingly be setaside.

15. The question next arises, whether the plaintiff isentitled to a personal decree for recovery of the money which has been found tohave been advanced. AM the suit was instituted more than six years after thedue date of the bond, this involves the question of limitation which has notbeen considered from this point of view, Its decision must depend upon thegenuineness or otherwise of the payments of interests alleged to have been madeby the defendant to the plaintiff within the meaning of S. 20 of the IndianLimitation Act.

16. The result is that this appeal is allowed the decree ofthe Subordinate Judge set aside and the case remanded to him forre-consideration of the question of limitation with reference to the provisionsof S. 20 and Art, 116 of the Indian Limitation Act. The Subordinate Judge willbe at liberty to take additional evidence to be adduced by both sides upon thequestion, whether the alleged payments were made, and, if so on what dates. Thecosts will abide the result.

P.L. Buckland, J.

17. This is an appeal by the defendant against the decisionof the learned Judge of Burdwan, dated the 30th October, 1919, upholding thedecision of the Munsif of Katwa in a suit on mortgage.

18. It has been contended that the suit should have beendismissed so far as there was a claim to realise the amount due by sale of theproperty purporting to have been mortgaged on the ground that the deed was notattested as required by S. 59 of the Transfer of Property Act.

19. What actually are the facts as regards the execution andattestation is not clear from the judgment of either of the lower Courts. Thelearned Munsif says in his judgment that Hari Pal one of the attestingwitnesses is dead and the other one is the scribe Bholanath. He does not sayhow the executant executed the document. The learned Subordinate Judge has notconsidered the evidence on the point but has contended himself with merelyobserving that "the evidence on the record established that the bond insuit was attested as a mortgage bond by at least two witnesses and thedefendant admits execution" On that he has found that the document wasduly attested.

20. In these circumstances, ordinarily, the appeal wouldhave to be remanded for a re-hearing on this point, but there is no dispute asto what occurred and we have seen the deed for ourselves.

21. It is common ground that the executant was illiterate,that he executed the instrument, "by the pen of Sri Bholanath Ghose,"the scribe who also purports to be an attesting witness.

22. The point therefore is, whether in these circumstancesBholanath was a competent attesting witness. Unless Bholanath was a competentattesting witness it is immaterial, having regard to the provisions of thesection, whether or how Hari Pal attested the document.

23. The case is clearly covered by authority in Rajani KantaBhadra v. Panchanand (1918) 46 Cal. 522 = 48 I.C. 720 = 23 C.W.N. 290, thefacts were that the scribe executed the document for and on behalf of themortgagor. He signed it also as a scribe and there was one other attestingwitness. The scribe having executed the document for, and on behalf of, themortgagor, was held to be incompetent to attest his own signature as attestingwitness even in the view that the subscription of his name as the scribeamounted to attestation.

24. But even were the matter res Integra I should not beprepared to hold otherwise. Though the case Shamu v. Abdul (1912) 35 Mad. 607 =39 I.A. 218 = 16 C.W.N. 1009 = 16 I.C. 250 = 23 M.L.J. 321 (P.C) mentioned inthe judgment to which I have just referred is not a direct authority upon thepoint, it contains observations making it clear beyond all questions what isthe meaning of the word "attest." The following extract from thejudgment of their Lordships will suffice. In Bryan v. White (1850) 2 Rob(Eccl.) 315 = 14 Jur. 919, Dr. Lushington in 1850 laid down that"attest" means the persons shall be present and see what passed andshall be present and see what passes and shall, when required, bear witness tothe facts. In 1855 Lord Campbell, Chief Justice, in Roberts v. Phillips (1855)4 E. & B. 450 = 24 L.J. Q.B. 171 = 1 Jur 444, enunciated the same rule asregards the word "attested" that the witnesses should be present aswitnesses and see it signed by the testator.

25. And the principle was given effect to in the House ofLords in Burdett v. Spilsbury (1843) 10 Cl. & F. 340 = 59 R.R. 105. TheLord Chancellor summed up the conclusion in these words:-"The party whosees the will is in fact a witness to it, if he subscribes as a witness, he isthen an attesting witness." Though these observations were made in casesof wills, that does not prevent their application to the case of any instrumentrequiring attestation where the only point involved is the meaning of the word"attest" without qualification. A scribe who executes a document for,and on behalf of, the executant is not a person who "sees whatpasses" or sees it executed, when he himself does the very thing to whichby subsequently signing as a witness he professes to bear witness.

26. For these reasons, I agree that the deed in question wasnot validly attested as a mortgage and I concur in the order to be made.

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Sristidhar Ghose vs.Rakhyakali Dasi (21.06.1921 - CALHC)