This is an appeal by the plaintiff against the decree of the learned Subordinate Judge dismissing his suit, reversing the decree granted in her favour by the learned District Munsif. The suit was for a declaration that the othi deed Ex. A.5 dated 10th February 1945 (of which Ex. B-5 is the original) executed by the power of attorney agent of Sankararamier the third defendant in favour of his brother the 1st defendant does not affect the plaintiff's right to the suit properties under the sale deed in her favour and for recovery of possession of the same with profits. The plaint schedule properties, it is not disputed, originally belonged to the third defendant. Under a sale deed dated 17th February 1945, Ex. A.1, the property was conveyed by the third defendant to the plaintiff for a sum of Rs. 1350 of which the consideration was fully paid. In the document, the third defendant assured the planitiff that the property was free from encumbrances and that he held the property absolutely. As the plaintiff was obstructed, when she went to take possession of the property by the first defendant claiming rights under the othi deed of an earlier date, viz, 10th February 1945, she instituted the present suit for the reliefs stated above. Her case was that this document, the othi deed, was an ante-dated document brought into existence by the collusion of defendants 1 and 3 and the power of attorney agent of the third defendant one Sivasubramania Aiyar. The stamps were purchased at Tinnevelly and though the document had to be registered at a nearer place, in fact it was presented for registration before the District Registrar of Tinnevelly. It was claimed that the recitals regarding the consideration in the othi deed were all false. There was an earlier criminal case against defendants 1 and 3 and also the power of attorney agent Sivasubramania Ayyar but that case was dismissed. The document was also attacked on the ground that it was not validly attested. The third defendant died during the pendency of the suit and the first defendant was the sole contesting defendant. He claimed that the document in his favour, the othi deed, was a valid document and was not ante-dated. In the trial Court, several issues were raised of which issues 1 and 3 are the most important issues. Issue 1 covers the question that the deed was ante-dated and issue 3 concerns the question whether the othi deed was properly attested. On the first point, the trial Court found in favour of the plaintiff but the third issue was disposed of summarily and it was held that the deed was validly attested. In the result, the suit was decreed in favour of the plaintiff. On appeal, this decision was reversed by the learned Subordinate Judge, who held that the othi deed was not ante-dated and that it was valid. He did not however deal with the question of the validity of the attestation of the document fully. He made a passing reference to it treating that question as one arising under S. 68 of the Indian Evidence Act.
In this appeal by the plaintiff, the finding of fact could not be seriously challenged as there are no grounds for interfering with that finding though a reversing one in second appeal. But the learned Advocate for the appellant pressed the issue relating to the validity of the attestation of the document and that is the the only question, which arises for consideration in this second appeal.
The document, the othi deed, Ex. B.5, was executed in favour of the first defendant by Sivasubramania Aiyar as the power of attorney agent of Sankararamier. It is so stated in the preamble to the document and to the body specific reference is made to the fact that he was executing the documents in his capacity as the general power of attorney agent of Sankararamier the third defendant. It was signed also by the power of attorney agent as Sivasubramania Aiyar, power agent of Sankararamier. The document purports to bear the attestation of Sankararamier, the third defendant and A.S Subramania Aiyar a stranger. There is also the signature of the scribe S. Rangarajan Mudaliar. The scribe was not examined in the trial Court and no point was made of the existence of his signature on the document to make him a valid attesting witness if it is permissible to do so under law. There are of course conflicting decisions on this point, which however does not arise for consideration in this case.
The attestations therefore of two witnesses are alone left and if they are valid attesting witnesses, the document will be valid. The question raised is that Sankararamaier, who is one of the attesting witnesses, is the executant himself and he could not, therefore, be a valid, attesting witness to a document, which was executed by his power of attorney agent on his behalf and signed by him as such. The question is whether this contention is well-founded.
In Shamu Pathar v. Abdul Kadir Ravuthan(1), before the amendment of the Transfer of Property Act, it was held by the Privy Council that the attestation of a mortgage deed within the meaning of S. 59 of the Transfer of Property Act must be by persons who signed their names as witnesses after seeing the actual execution of the deed. Mere acknowledgment of the signature by the executant, it was held, was not sufficient. The Privy Council therefore by this decision resolved the conflict, which then existed in the Indian Courts. In the Transfer of Property Act as it stood before the amendment, there was no definition of the word “attestation.” A definition of the word “attested” was for the first time introduced by the Transfer of Property Amending Act (Act XXVII of 1926) and as some doubt was felt under that Amending Act whether the Act could be retrospective or not, a further amendment was made by the Repealing and Amending Act of 1927 which inserted the words ‘and shall be deemed always to have meant’ to clearly indicate that the definition in the Amending Act of 1926 was retrospective in operation. The definition as it now stands is in these words:
“Attested,” in relation to an instrument, means and shall be deemed always to hare meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time and no particular form of attestation shall be necessary.”
The definition includes the acknowledgment of signature by the executant as sufficient in cases where the person who signed as an attesting witness did not see the actual execution of the deed. The requirement of attestation to a document was stated by the Privy Council in Shamu Pattar's case referred to above to be that “the barriers against perjury and fraud” to use the language of the Master of the Rolls in Ellis v. Smith(2) should not be removed upon speculative considerations. The attestation therefore of persons to a document is to ensure that there is no fraud or other vitiating circumstance in the execution of the document.
In Seal v. Claridge(3) a decision under the Bills of Sale Act, 1878, construing Ss. 8 and 10 of the Act, it was laid down by Lord Selborne, Lord Chancellor, that “the commonsense of mankind has always rejected the notion that the party to a deed could also attest it.” The Act under consideration required that the execution of every bill of sale should be attested by a Solicitor of the Supreme Court. The grantee in that case under the Bill of Sale was a Solicitor and the signature of the grantor was attested by the grantee and the point for consideration was whether the bill could be treated as having been validly attested. It was held that the Solicitor was a grantee under the Bill, he could not be a valid attesting witness as he was a party to the document, though not the executant. The word “attestation” implies, said, the Lord Chancellor:
“the presence of some person, who stands by but is not a party to the transaction. The view which I take seems to be confirmed by the circumstance that attestation is unnecessary; unless it is required by an instrument creating a power or by some statute. If the argument of Mr. Dugdale is correct, the attestation required by the Bills of Sale Act, 1878, would be satisfied by the mere repetition of the signature of a party to the deed, can this be regarded as a useful provision. I do not place much reliance upon what was said by Lord Eldon, L.C, in Coles v. Tracothick(4) but I do rely upon Freshfield v. Reed(5). It follows from that case that the party to an instrument cannot ‘attest’ it. When I pass to the provisions of the Bills of Sale Act, 1878, I find that it is necessary that the execution of a bill of sale shall be attested by a solicitor. This means that a solicitor shall be an independent witness. It has been admitted that if the grantor were a solicitor he could not attest his own signature; but it is contended that it is different in the present case where the grantee is a solicitor. It was the intention of the Legislature that the nature of the Bill of Sale should be explained to the grantor, one object no doubt, was that he should be adequately protected; can it be said that an attestation by a grantee is sufficient; when he has the greatest possible interest to deceive the grantor, if he is inclined to be fraudulent or to be guilty of malpractice? He is not to attest at an instrument which is to operate chiefly for his own benefit.”
This principle was considered in some of the decisions of the Indian Courts. In Durga Din v. Suraj Bakhan(6) before a Full Bench of the Lucknow High Court the question of the valid attestation of a mortgage executed berjami but attested by a person who actually advanced the money was raised. It was held that though the person, who advanced the money, was interested in the transaction as he is to get the ultimate benefit of the mortgage, he was not a party to the document and therefore the principle that a party to a document cannot be a valid attesting witness did not apply. A benamidar, it was pointed out, was the legal mortgagee and he was the person who was in the legal sense a party to the deed. Merely because a person is interested in a transaction, he is not on that ground disentitled to be a valid attesting witness. In Peary Mohan Maiti v. Sreenath Chandra Maiti(7), the Calcutta High Court ruled that the co-executant of a mortgage was not a valid attesting witness and this principle was followed in that Court in Sarunjigan Begum v. Baroda Kant Mitter(8), and other cases. In Upendra Chandra Bhadra v. Hukum Chand Be(9), a mortgage bond was executed by an illiterate person and there was no seal or thumb impression of the mortgagor on the deed. It was held that the scribe, who executed the document for and on behalf of the mortgagor, was not competent to attest his own signature as an attesting witness, even assuming that the subscription of the name as a scribe amounted to attestation within the meaning of S. 59 of the Transfer of Property Act. In Sristidhar Ghose v. Rakshakali Desi, the writer of the mortgage bond wrote out the name of the executant who was illiterate and then signed his own name by way of attestation. It was held that the document was not properly attested within the meaning of S. 59 of the Transfer of Property Act. All the decisions on the point were fully considered by Mookerjee J. At page 443, that learned Judge observed:
“We are unable to accept the contention of the respondent that the scribe who wrote out the name of the executant may be taken to have at the same time witnessed that fact, in other words to have simultaneously performed a double function. It might have been maintained with equal plausibility that where a deed has to be executed by A, and B, under authority conferred by a power of attorney, executes it on his behalf writing thereon ‘A by his duly constituted attorney B’ B is competent to become an attesting witness, to witness the endorsement made by himself. Dr. Kanjilal frankly conceded that such a position was manifestly incongruous and untenable. But, plainly, no real distinction in principle can be found between the hypothetical case mentioned and the concrete instance before us. In our opinion, there is no escape from the position that a scribe cannot be an attesting witness of what he has himself written. If in the case of execution of a document by a literate man, who can write his own name, it is deemed necessary by the Legislature to have two other persons as attesting witnesses, it is at least equally essential to have two independent attesting witnesses when the man is illiterate and cannot write his name which is written for him by another.”
These decisions illustrate the necessity for the attestation of a person as a witness, who had actually seen the executant sign the document or as now allowed by the amended definition received an acknowledgment from the executant. But there is no decision which has gone to the length of upholding that the executant himself could be a valid attesting witness. The principle laid down by Lord Selborne in Seal v. Claridge, has never been dissented from. On the other hand, it has been applied in other cases.
In the present case, though the power of attorney agent of Sankararamaier, the third defendant, is a different person, the act he did was an act on behalf of Sankararamaier and in law, Sankararamaier is the executant of the document. Sankararamaier, being a party to the document, could not be a valid attesting witness for the very good reasons given by Lord Selborne, Lord Chancellor in the case already cited. The argument strongly pressed on behalf of the respondent however is that as physically the two persons are distinct, it should be treated that the power of attorney agent, was in fact the person who actually signed the document and therefore there is no objection for Sankararamaier, on whose behalf the document was executed to be a valid attesting witness. It is rather difficult to accept this argument for it is impossible to hold that Sivasubramania Aiyar, the power of attorney agent, was in any sense of the term the executant of the document. The person entitled to sue for redemption and liable to be sued for enforcing the mortgage is not Sivasubramania Aiyar but Sankararamaier, the executant. Therefore in law Sankararamaier, is treated as the executant of the document though the act was done by somebody on his behalf. The analogy of cases where the scribe puts the mark of an illiterate executant and also signs as attesting witness could equally apply in the present case. If in the one case he could not be a valid attesting witness, there is no reason why in the present case Sankararamaier should be treated as a valid attesting witness. If any, the reason for holding that he could not be a valid attesting witness is stronger than in the other case. I am therefore unable to accept the argument of the learned Counsel for the respondent so strongly pressed by him and applying the well-established principle that a party to a document cannot be valid attesting witness, I must hold that the document, the othi deed, was not validly attested and, therefore, ineffective to create a valid mortgage. The plaintiff, therefore, though not entitled to succeed on the question of fact, is entitled to succeed on the question of law.
The appeal must therefore be allowed and the decree of the lower Court must be vacated and that of the District Munsif restored with costs here and in the Court below. No leave.
V.C.S