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Sarkar Barnard And Co. v. Alak Manjary Kuari And Another
Factual and Procedural Background
The respondents were the two wives of Maharajah Kumar Jagat Mohan Nath Sah Deo of Chota Nagpur. On 6 April 1908 they executed a mortgage in favour of the appellants, Sarkar Barnard and Co. The deed contained a recital stating that the deed was executed with the consent and permission of their husband so that he might not later object to realization of the debt by sale of the mortgaged property; the Maharaj Kumar also signed the document and was described in the deed. The deed showed signatures of the two wives (each annotated "By my own pen"), the Maharaj Kumar, and the witness "Sabral or Saphal."
The appellants instituted suit to enforce the mortgage-bond. The respondents contested the suit on two grounds: (1) that the mortgage-bond lacked proper attestation and therefore was not enforceable against them; and (2) that the mortgage was not intended to be acted upon because the plaintiffs, by an agreement with the Maharaj Kumar, had been granted a licence and thereby exonerated the defendants from liabilities under the mortgage.
The Subordinate Judge rejected the defendants' contentions and gave the plaintiffs a decree for the full amount claimed. On appeal the High Court set aside that judgment on the ground that the mortgage-bond was invalid for want of proper attestation, while expressing agreement with the Subordinate Judge on the defendants' second contention. The plaintiffs then appealed to the Privy Council.
Legal Issues Presented
- Whether the mortgage-bond was properly attested in accordance with the requirements of attestation (as articulated by section 59 of the Transfer of Property Act and related authorities) and therefore enforceable against the mortgagors.
- Whether an agreement between the plaintiff company and the Maharaj Kumar (in consideration of a licence granted by the Maharaj Kumar) exonerated the defendants from liabilities under the mortgage-bond.
Arguments of the Parties
Respondents' Arguments
- The mortgage-bond was not duly attested according to law and therefore could not be enforced against them.
- The mortgage was not intended to be acted upon because the plaintiffs had entered into an agreement with the Maharaj Kumar, in consideration of a licence, which exonerated the defendants from liabilities under the deed.
Appellants' Arguments
The opinion does not contain a detailed account of the appellants' legal arguments beyond that they sought enforcement of the mortgage-bond and pursued appeals in the courts.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Muniappa Chettiar v. Vellachami Mannady | Attestation requires not merely execution but a further act of subscribing the name of the witness on the document as having seen the execution. | The High Court relied on this formulation to emphasize that seeing the execution is not enough; the witness must subscribe on the instrument itself. |
| Burdett v. Spilsbury | As recognized in section 59 of the Transfer of Property Act, witnesses alleged to have attested must have seen the execution and subscribed their names on the document; the rule guards against perjury and fraud. | Invoked to support the strict requirement that attesting witnesses must have subscribed on the document, and to justify refusing to treat the Maharaj Kumar's signature as that of an attesting witness. |
| Ellis v. Smith | Used as an example supporting the view that the attestation rule prevents perjury and fraud by requiring subscription by witnesses. | Referred to as reinforcing the policy underlying the attestation requirement which the court applied when assessing whether the Maharaj Kumar was an attesting witness. |
| Ram Bahadur Singh v. Ajodhya Singh | Holds that a person whose name appears on the deed merely as a scribe is not such a witness as is required by section 59 of the Transfer of Property Act, even if he actually saw the deed executed. | The High Court equated the Maharaj Kumar's signature (given as consent) to the position of a scribe who signs after seeing execution and therefore held he was not an attesting witness for the purposes of section 59. |
Court's Reasoning and Analysis
The High Court set out two conditions for the validity of the document as against the mortgagor: (1) there must be at least two persons who actually see the document executed; and (2) those persons must subscribe the document as witnesses. The court explained that attestation requires the further act of subscribing the witness's name on the document as having seen the execution, not merely seeing the execution.
Relying on the principles in Burdett v. Spilsbury and the policy reflected in section 59 of the Transfer of Property Act (to prevent perjury and fraud), and authorities such as Muniappa Chettiar and Ram Bahadur Singh, the High Court held that a person whose name does not appear as an attesting witness cannot be treated as such merely because he saw the execution or signed the instrument in some other capacity.
Applying these principles to the present facts, the High Court examined the recital in the mortgage-bond which stated that the deed was executed with the Maharaj Kumar's consent and that he signed as a witness in evidence of that fact. The court concluded that this recital established he signed to give his consent to the transaction and that he did not purport to sign as an attesting witness. Even accepting factual findings that the Maharaj Kumar saw the execution and signed after the wives, the court reasoned that those findings did not make him an attesting witness because he did not subscribe as such on the document. The court analogized his position to that of a scribe who signs after seeing execution and is not an attesting witness under section 59.
Because only one person (Sabral or Saphal) appeared to have attested the document by subscribing as a witness, the requirement of attestation by at least two witnesses was not met. Consequently, the High Court held the mortgage-bond invalid and unenforceable against the mortgagors.
The Privy Council (Lord Shaw), hearing the appellants' further appeal ex parte, assessed the appeal as hopeless and advised that it be dismissed. The Privy Council ordered the usual costs in favour of the respondents.
Holding and Implications
Appeal rejected; the mortgage-bond was held invalid for want of proper attestation and the plaintiffs' appeal was dismissed.
Implications:
- Direct effect: The mortgage-bond could not be enforced against the mortgagors because it was not attested by the requisite number of subscribing witnesses; the plaintiffs' appeals were dismissed and the respondents were entitled to costs as ordered.
- No broader implications are discussed in the opinion beyond the direct effect on these parties.
Facts :-
The respondents in this appeal were the two wives of a certain Maharajah Kumar Jagat Mohan Nath Sah Deo of Chota Nagpur. They executed a mortgage in favour of the appellants Sarkar Barnard and Co. on the 6th April, 1908.
The deed contained the following recital :-
"The deed is executed by us with consent and permission of our husband so that he may not in future raise objection to realization of debt by sale of mortgaged property (villages). Our hus band signed as witness in the bond in evidence of the above facts."
The signatures in the deed were as follows.
"Signature.........Srimati Alangamanjari Kueri Barkuerain Sahib. By my own pen.
"Signature.........Srimati Mohan Manjari Kueri Chotkuerain. By my own pen."
''Signature.........Maharaj Kumar Jagat Mohan Nath Sah Deo of Chota Nagpur."
Witnessed by.........Sabral or Saphal.
The appellants, the mortgagees institu ted a suit against the respondent to enforce the mortgage-bond. The suit was contest ed by the respondents on two grounds. First on the ground that the mortgage-bond not having been attested according to law was not enforceable against them, and secondly, on the ground that the mortgage was not intended to be acted upon and that the plaintiff company by an agree ment entered into by and between them and the Maharaja the husband of the defendants, in consideration of a license granted by the Maharaja Kumar to the plaintiff, exonerated the defendants from all the liabilities under the deed of the mortgage. The Subordinate Judge rejected the contentions advanced on behalf of the defendants and gave the plaintiffs a decree for the full amount claimed.
When the case went in appeal to the High Court the Subordinate Judge's judg ment was set aside on the ground that the mortgage bond was invalid for want of proper attestation, though the High Court expressed its agreement with the Subordinate Judge in regard to the other conten tion raised by the defendants.
We give below important passages in the High Court's judgment relating to the question of attestation.
"It will appear then that two conditions must be satisfied before the validity of the document is established as against the mortgagor first, there must be at least two persons who see the document actually executed and secondly, these must sub scribe as witnesses. As Abdur Rahim, J., said in Muniappa Chettiar v. Vellachami Mannady, 'Attestation does not consist merely in execution of a document. It requires a further act, that is, subscribing the name of witness on the document as having seen the execution.' .....
It seems to me that if as has been suggest ed, the rules stated by the Lord Chancellor in Burdett v. Spilsbury and recognised in section 59 of the Transfer of Property Act was deliberately adopted to serve as a bar rier against perjury and fraud (see Ellis v. Smith, it must be established that the persons alleged to be attesting witnesses not only saw the execution of the document but also subscribed their names on the document as having seen the execution. Any other view would open the door to fraud and perjury and enable a party to produce witnesses to speak to the factum of the execution in their presence when their names do not appear in the docu ment as attesting witnesses. This is at the bottom of the rule enunciated in Ram Bahadur Singh v. Ajodhya Singh that a person whose name appears on the deed merely as a scribe is not such a witness as is required by section 59 of the Transfer of Property Act, although he may have actually seen the deed executed".
With reference to the facts of the pre sent case the judgment observed :- "Prima facie the document was attested by only one witness, Sabral or Saphal, but it was urged on behalf of the respondent that as the Maharaj Kumar was not one of the executants he must have signed the docu ment as the attesting witness. The answer of the defendant to this argument is that he does not purport to sign the document as the attesting witness as Sabral or Saphal does, and they rely upon the recital in the mortgage bond as conclusive ly establishing that he put his signature on the document in another capacity
. ....... In my judgment this recital conclusively establishes that the Maharaj Kumar did not sign the document as the attesting witness but as giving his consent to the transaction. It was strongly contended on behalf of the respondent that as the evidence establishes that the Maharaj Kumar signed the document after seeing the execution of the document by his wives it must follow that he signed as an attesting witness........It was open to the learned Subordinate Judge on the evidence to find as he has found that the Maharaj Kumar saw the execution of the document by the ladies. I will also accept the finding of the learned Subordinate Judge that the Maharaj Kumar signed the document after the execution of the same by the ladies. But these findings of fact do not in my judgment establish that the Maharaj Kumar was an attesting witness to the document. In the first place he does not purport to sign in the document as attesting witness. In the second place, the document establi shes that he signed the document as giving his approval to the transaction and not as an attesting witness. I cannot distinguish his case from the case of a scribe who signs the document after seeing its execution by the executants. To hold otherwise would be to open the door to perjury and fraud which it was the intention of S. 59 of the Transfer of Property Act to prevent. I hold that the Maharaj Kumar not having subs cribed as a witness is not a witness. It follows that the mortgage bond was not at tested by at least two witnesses and that it cannot be enforced against the mortgagors.
The plaintiffs then appealed to the Privy Council.
Lord Shaw:-This appeal has been presented ex parte. Everything in its favour that could be said has been said. Their Lordships are of opinion that it is a hopeless appeal and will humbly advise His Majesty to dismiss it accordingly.
The usual order will be made with re gard to such costs as the respondents may be entitled to.
Appeal rejected.
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