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Case Number

First Appeal No. 1 of 1957

Advocates

R.N.Mishra
R.K.Sinha
M.K.Deb
L.K.Das Gupta

Judges

Hon'ble Mr. Justice Jaya Krishna Misra
Hon'ble Mr. Justice Souri Prasad Mohapatra

Acts

Sections 58, 59 and 60 of the Registration Act,
SECTION 59 A TRANSFER OF PROPERTY ACT
Sections 58 and 59 of the Registration Act,
SECTION 58 REGISTRATION ACT
SECTION 59 REGISTRATION ACT
TRANSFER OF PROPERTY ACT

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Smart Summary

Analytical Summary of the Opinion — Mohapatra, J. (First Appeal)

Factual and Procedural Background

The plaintiff filed this First Appeal against the judgment and decree dated 31 August 1956 of Sri B.K. Das, Subordinate Judge, Mayurbhanj. The underlying suit sought enforcement of an "anomalous mortgage bond" dated 4 May 1948 executed by defendant No. 1, Bhabatosh Das, and Maheswari Debi (since deceased), who was the mother of defendants 1, 2 and 3. The bond purportedly entitled defendant No. 1 to draw amounts from the plaintiff-bank to the extent of Rs. 10,000; after making adjustments the plaintiff claimed Rs. 12,477/11/9.

Properties mortgaged stood in the name of Maheswari Debi. Defendants 2 and 3 — not original parties to the transaction — were made parties as her heirs. Defendants 4 to 7 were the sons of defendant No. 1 and defendant 8 was the son of defendant No. 2. Defendants 1 and 4–7 supported the plaintiff's case; defendants 2, 3 and 8 contested the suit.

The trial Court found that (a) due, proper and valid execution of the document was not proved, (b) proper attestation was not proved, and (c) there was no legal necessity supporting the transaction. However, on admissions by defendants 1 and 4–7 a money decree was passed against them; as to the other defendants the suit was dismissed. The plaintiff appealed from that judgment and decree.

Legal Issues Presented

Whether the mortgage document (Ex. 1.c) was duly and properly executed by the executants, in particular by Maheswari Debi.
Whether the instrument was properly attested in accordance with the definition of "attested" (section 3) and the requirements of Section 59 of the Transfer of Property Act.
Whether the transaction was supported by legal necessity (i.e., whether the loan could be characterized as for family necessity such as to bind others).
Whether, on the proved facts and evidence, the plaintiff was entitled to a mortgage decree based on the impugned document.

Arguments of the Parties

Plaintiff / Appellant (summarised from the opinion)

Sought enforcement of the mortgage bond and claimed Rs. 12,477/11/9 after adjustment.
Relied on the evidence of the Sub-Registrar (P.W.1) who stated that the lady executant admitted execution in his presence, signed in his presence and that he endorsed the admission of execution; he also stated that the sons were present when he visited her house.
Relied upon evidence of several other witnesses to establish proper attestation by two witnesses.
Did not base the claim on family necessity (the opinion expressly notes that the plaintiff did not take that footing).

Defendants / Respondents (summarised from the opinion)

Contended that the transaction was not duly and properly executed.
Contended that there was no proper attestation within the meaning of the Transfer of Property Act.
Contended that there was no legal necessity to support the transaction.
It is recorded that defendant No. 1 himself stated there was no necessity for reading out or explaining the document to the lady executant.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Surendra Bahadur v. Behari Singh, AIR 1939 PC 117	Clarifies the import of the definition of "attested" in the Transfer of Property Act (1927): each attesting witness must have signed the instrument in the presence of the executant; signatures endorsed in registration proceedings do not, without evidence of presence, prove attestation required by Section 59 of the Transfer of Property Act.	The Court relied on this authority to hold that the Sub-Registrar's endorsement and registration entries do not, in the absence of explicit evidence that attesting witnesses signed in the executant's presence, establish the attestation required by law; accordingly the appellant's reliance on the Sub-Registrar's evidence failed to prove due attestation.

Court's Reasoning and Analysis

The court proceeded through linked factual findings and legal analysis as follows:

Execution by the lady executant:
- The court accepted the trial court's finding that Maheswari Debi was a purdanashin lady and that the Sub-Registrar had visited her house and obtained an acknowledgement of execution.
- Noting the document was in English and that Maheswari's signature was in English, the court observed that the signature disclosed only that she could sign her name in English; there was other evidence she did not know English and the document was not plainly comprehensible on a mere perusal because its terms were difficult.
- On these facts, the court held it was incumbent on the plaintiff to prove not merely that Maheswari had signed, but that the document had been fully read over and explained to her and that she willingly understood and assented to its nature and character.
- The court found there was "not an iota of evidence" that the document had been read over and explained to the lady executant; neither attesting witnesses nor defendant No. 1 testified that the document was read and explained. Defendant No. 1 in fact stated there was no necessity to read or explain it. For these reasons, the court agreed with the trial court that proper and due execution was not proved.
Attestation under the Transfer of Property Act:
- The court quoted the statutory definition of "attested" (section 3 of the Transfer of Property Act) and emphasised its two bilateral aspects: (a) the executant signs or acknowledges the signature before the attesting witnesses, and (b) each attesting witness signs in the presence of the executant.
- The court referenced the Privy Council decision in Surendra Bahadur v. Behari Singh to underscore that each attesting witness must have signed in the executant's presence and that registration endorsements alone cannot substitute for this proof unless the endorsement expressly records that signatures were made in the presence of the executant.
- The appellant's key reliance was on the Sub-Registrar's evidence (P.W.1). The Sub-Registrar stated that the executant admitted execution in his presence, that she signed in his presence, and that he endorsed the admission of execution. However, the Sub-Registrar did not state in his deposition that his endorsement was made in the presence of the executant who had acknowledged her signature.
- The court identified a "serious lacuna" in the Sub-Registrar's statement. It observed that the mere fact of a lawful endorsement at registration does not prove that such endorsement was made in the executant's presence, particularly because Section 59 of the Registration Act permits such an endorsement to be made during the course of the same day when the executant appears before the Sub-Registrar.
- Because of this lacuna, and because attesting witnesses had not been examined to establish the required presence-and-signature sequence, the court concluded that attestation in accordance with law was not proved.
Legal necessity:
- The court noted that the plaintiff did not rely upon family or legal necessity as the basis for imposing liability on others; neither the plaint nor the transaction mentioned legal necessity.
- These facts led the court (following the trial court) to conclude the transaction was not supported by legal necessity.
Overall assessment:
- After reviewing the evidentiary record and relevant legal principles, the Court agreed with the trial court's findings that due execution and proper attestation were not proved and that the transaction lacked legal necessity.
- Consequently, the plaintiff was not entitled to a mortgage decree based on the impugned transaction.

Holding and Implications

HOLDING: The appeal is DISMISSED. The Court affirmed the trial court's findings that (a) the document was not duly and properly executed by the lady executant, (b) the instrument was not properly attested in accordance with the Transfer of Property Act, and (c) the transaction was not supported by legal necessity.

Direct implications for the parties:

The plaintiff is not entitled to obtain a mortgage decree on the basis of the challenged transaction.
The money decree previously passed by the trial court against defendants who admitted liability (defendant No. 1 and defendants 4–7) remains effective as the appeal is dismissed (the opinion records that a money decree had been passed on their admissions).
There will be no order as to costs of this Court; the order regarding costs made by the trial Court will stand.

No broader precedent was created by this decision beyond its application of settled principles (including the cited Privy Council authority) to the facts of the case; the Court expressly affirmed the trial court's findings.

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Mayurbhanj State Bank v. Bhabatosh Das And Others

Mohapatra, J.:— The plaintiff has filed this First Appeal against the judgment and decree dated 31st August 1956 of Sri B.K Das, Subordinate Judge of Mayurbhanj, arising out of a suit for enforcing an anomalous mortgage bond executed on the 4th May, 1948, by the present defendant No. 1 (Bhabatosh Das) and one Maheswari Debi, since deceased, who was the mother of defendants 1, 2 and 3. The agreement in the bond was to the effect that defendant No. 1 would be entitled to draw amounts from the plaintiff-bank to the extent of Rs. 10,000/-. The plaintiff alter making adjustment had laid the claim ft. Rs. 12,477/11/9.

2. Defendants 2 and 3, who were not parties to the transaction, have been made parties in the suit as heirs of Maheswari. It is to be noted, the properties mortgaged stood in the name of Maheswari, the mother. Defendants 4 to 7 are the sons of defendant No. 1 and defendant No. 8 is the son of defendant No. 2. Defendants 1, 4, 5, 6 and 7 supported the case of the plaintiff. The suit was contested by defendants 2, 3 and 8. The main contest was on the basis that the suit transaction was not duly and properly executed, that there was no proper attestation within the meaning of the definition under the Transfer of Property Act and that there was no legal necessity for the transaction.

3. The trial Court found that due, proper and valid execution of the document has not been proved, proper attestation also has not been proved and further there was no legal necessity to support the transaction. But on the admission of the defendants 1 and 4 to 7 a money decree was passed against them. The suit was dismissed as against the other defendants. Against this judgment and decree of the trial Court the plaintiff has come up in appeal. We will now take up the question how far S. there has been proper execution of the document in suit (Ex. 1.c), One of the executants was Maheswari Debi. The learned Court below has found that it is admitted that Maheswari was a purdanashin lady. In fact the transaction was registered by the Sub-Registrar who had been to the house of Maheswari on commission and obtained the acknowledgement of due execution of the transaction. Moreover there is other evidence to the effect that she happened to be a Purdanashin lady.

4. That apart, it appears, the suit document is in English. Maheswari also had signed her name in English but on a scrutiny of her signature we feel convinced to observe that she did not know anything else of English excepting how to sign her name. There is also other evidence in support of the position that she did not know English. The document does not appear to be a very Plain document which can be understood just on a perusal of it. The terms appear to be difficult.

5. In such circumstances we are definitely of the view that in order that the Plaintiff can enforce such a document, it is incumbent upon the plaintiff to prove not only that Maheswari had put her signature on the transaction but that the document was fully read over and explained to her and that she became a willing partner to the document after understanding the nature and the character of the document. It is significant to note in this connection that there is not an iota of evidence on record to show that the document was read over and explained to the lady executant.

6. None of the attesting witnesses has been examined on this position nor even defendant No. 1, who fully supports the case of the plaintiff made even a bare statement to the effect that the document was read over and explained to the lady executant. On the contrary, it is the definite statement of the defendant No. 1 himself that there was no necessity for reading out or explaining the document. In such circumstances we are in complete agreement with the view taken by the learned Court below that proper and due execution of the document has not been proved.

7. The next question is whether the document which is sought to be enforced as a mortgage transaction has been proved to have been attested by two witnesses as required under Section 59 of the Transfer of Property Act we will first refer to the definition of “attestation” contained in section 3 of the Transfer of Property Act:

“‘attested’ in relation to an instrument, means and shall be deemed always to have 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 acknowledgement 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, I and no particular form of attestation shall be necessary.”

The definition clearly lays down that the legal act of attestation involves two important bilateral aspects (i) that the executant will sign the document in the presence of the attesting witnesses or that the executant will acknowledge his signature before the attesting witnesses and (ii) the further aspect which is equally important that the attesting witnesses will have to sign the document in the presence of the executant. We may in this connection refer to a decision of their Lordships of the Privy Council in the case of Surendra Bahadur v. Behari Singh, AIR 1939 PC 117 which practically settles at rest the true import of this definition contained in the new Act of the year 1927.

8. Their Lordships laid down the Position very clearly that one of the essentials of attestation of a mortgage-deed is that each of the attesting witnesses must have signed the instrument in the presence of the executant; where the Sub-Registrar and the identifying witnesses have affixed their signatures to the registration and endorsement-under Sections 58 and 59 of the Registration Act, admitting execution of a mortgage-deed but there is no evidence that signatures were made in the presence of the executant, the signature, assuming that it would be legitimate to look at the proceedings relating to the registration of mortgage-deed for the purpose of proving the due execution and attestation thereof, cannot be said to have Proved due attestation as required by Section 59 of the Transfer of Property Act.

9. If the particulars which are to be endorsed on documents which are admitted for registration under section 58 of the Registration Act do not include the statements as to whether the signatures were made in the presence of the executant, Sections 58, 59 and 60 of the Registration Act, are of no avail. The endorsement made at the time of registration are relevant to the matter of registration only. Reference to this decision becomes important in view of the fact that Mr. Dasgupta, appearing on behalf of the appellant, has strongly relied upon the evidence of the Sub-Registrar (P.W 1) in support of his contention that due attestation has been proved. The Sub-Registrar states:

“She (the lady) admitted the execution of the document in my presence at her place. She signed in my presence. Ext. 1 is her signature. I also endorsed the admission of execution by her. All her sons were present when I went to her place, and when the execution was admitted by her.”

There is a serious lacuna in the statements of the Sub-Registrar to prove proper attestation inasmuch as he does not say in his deposition that he made an endorsement in the presence of the executant who had acknowledged her signature. Mr. Dasgupta relies upon the feature that the sequence that transpires in the statements of the witnesses will show that the endorsement was made in the presence of the executant.

10. Mere fact that the Sub-Registrar had made an endorsement in accordance with law does not lead to the conclusion that the endorsement was made in the presence of the executant, because of the provision contained in Section 59 of the Registration Act that such an endorsement can be made during the course of the day on which the executant admits her signature before the Sub-registrar. In our view, therefore, when there is this serious lacuna in the statement of the Sub-Registrar, the statement of the Sub-Registrar does not prove attestation in accordance with law. The plaintiff relies upon the evidence of several witnesses to prove proper attestation by two witnesses. (After considering the evidence of these witnesses his Lordship concluded:) The learned Court below therefore was perfectly justified in coming to the conclusion that the document has not been properly attested and due execution of the document also has not been proved. Therefore the plaintiff is not entitled to get a mortgage decree on the basis of this transaction.

11. On the question of legal necessity we may mention at the outset that the plaintiff does not base his claim on the footing that even if a personal decree is passed against defendant No. 1, the brothers and the sons of the brothers will be liable as the loan was transacted for family necessity. Moreover it is also transparent that neither in the plaint nor in the transaction itself legal necessity is mentioned. These features weighed very much with the learned Court below and rightly to come to the conclusion that the transaction is also not supported by legal necessity.

12. In conclusion, therefore, we are in agreement with the learned Court below in all his findings.

13. Accordingly the appeal fails and is dismissed; but there will be no order as to costs of this Court; but the order regarding costs passed by the trial Court will stand.

14. Misra, J.:— I agree.

GE/A.

15. Appeal dismissed.

Mayurbhanj State Bank v. Bhabatosh Das And Others

Analytical Summary of the Opinion — Mohapatra, J. (First Appeal)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff / Appellant (summarised from the opinion)

Defendants / Respondents (summarised from the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Mayurbhanj State Bank v. Bhabatosh Das And Others

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