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Mt. Hira Bibi And Others v. Ram Hari Lal And Others
Factual and Procedural Background
The suit was brought to enforce a mortgage dated 17th August, 1906. The defendants (appellants) contended that the mortgage bond was void because it was not attested in accordance with the provisions of Section 59 of the Transfer of Property Act, 1882. The principal issue concerned the appellant, Mt. Hira Bibi, who had signed the bond but the attestation by witnesses did not comply with statutory requirements, as the witnesses were not present when she signed due to her being behind purdah. The High Court of Judicature at Patna partly affirmed and partly reversed a judgment of the District Judge of Patna, holding the deed valid against Hira Bibi on the basis of her admission of signing it despite the attestation defect.
Legal Issues Presented
- Whether the attestation requirement under Section 59 of the Transfer of Property Act is a substantive rule affecting the validity of the mortgage or merely a rule of evidence affecting proof of execution.
- Whether an admission by a party to an unattested document can cure the defect of non-compliance with the attestation requirement.
- Whether the mortgage bond signed by Hira Bibi, but attested by witnesses who were not present at the time of signing, is valid and enforceable against her.
Arguments of the Parties
Appellant's Arguments
- The mortgage bond is void because it was not attested in accordance with Section 59 of the Transfer of Property Act, which requires witnesses to be present at the time of execution.
- Hira Bibi, being a pardanashin lady, signed the deed behind purdah, and the witnesses did not see her sign, thus failing the statutory attestation requirement.
Respondents' Arguments
- The mortgage bond should be considered valid against Hira Bibi because she admitted signing the document, which under Section 70 of the Indian Evidence Act, 1872, is sufficient proof of execution against her.
- The admission by the mortgagor renders it unnecessary to prove attestation strictly as per the statute.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Shamu Patter v. Abdul Kadir Ravu (1912) 35 Mad 607 (PC) | Attestation under Section 59 of the Transfer of Property Act requires witnesses to be present at execution of the instrument. | The Court relied on this precedent to hold that the witnesses must be present and see the signing for attestation to be valid. |
| Bryan v. White, 2 Rob. 315 | Definition of "attest" meaning witnesses must be present and see the execution. | Adopted to support the requirement of presence for attestation under the statute. |
| Burdett v. Spilsbury, 10 Cl and F 340 | Confirmed requirement of witness presence for attestation. | Followed to reinforce the principle that attestation requires witnessing the execution. |
| Padarath v. Ram Narain Upadhia AIR 1915 PC 21 | Material facts differ; no bearing on the present question. | The Court distinguished this precedent as not applicable to the current facts. |
| Ganga Pershad Singh v. Ishri Pershad Singh AIR 1918 PC 3 | Mortgage deed declared void for not being duly executed and attested. | Held analogous to the present case and supported setting aside the mortgage decree against Hira Bibi. |
Court's Reasoning and Analysis
The Court analyzed whether the attestation requirement under Section 59 of the Transfer of Property Act is a substantive rule affecting validity or merely a rule of evidence. It noted that while Section 70 of the Indian Evidence Act allows admission by a party to suffice as proof of execution, this applies only where the document is duly attested. In this case, the mortgage deed was not legally attested because the witnesses were not present at the time of execution, as required by statute and established precedents.
The High Court of Patna felt bound by earlier decisions holding that admission of signing renders proof of attestation unnecessary. However, the Privy Council found that those decisions overlooked binding precedents from this Board which require actual presence of witnesses. The Court concluded that the mortgage bond was not duly executed and attested, and therefore invalid as against Hira Bibi.
Holding and Implications
The appeal is partly allowed.
The mortgage decrees against appellant Mt. Hira Bibi are set aside with costs, and the suit is dismissed as against her. The decrees against the other appellants stand. Costs of Hira Bibi are to be paid by the contesting respondents, while the unsuccessful appellants must pay the costs of the respondents who appeared.
No new precedent was established; the decision applies existing authoritative rulings to the facts, clarifying that attestation under Section 59 of the Transfer of Property Act requires witnesses to be present at execution, and mere admission of signing does not validate a defectively attested document.
Lord Darling:-
This is an appeal from a judgment and decree, dated 10th June, 1921, of the High Court of Judica ture at Patna, partly affirming and partly reversing a judgment and decree of the District Judga of Patna. The suit was brought to enforce a mortgage dated 17th August, 1906. It was pleaded by the defendants (appellants) that the mortgage bond is void by reason of its not being attested in accordance with the provisions of the Transfer of Property Act IV of 1882, S. 59.
The only important question upon this appeal is in regard to the appellant Mt. Hira Bibi and her liability on the mortgage bond. It is admitted that she actually signed the bond, but it is a docu ment which requires attestation by wit nesses, as is provided by statute.
Hira Bibi is a pardanashin lady. The evidence shows, beyond contest, that when Hira Bibi signed the mortgage bond not one of the persons who signed as witnesses was present or saw her sign it. She was behind the purda. Anant Prasad, her son, took this deed, and others, inside the purdah. He came out and told those outside, and out of sight of Hira Bibi, that she had signed the deed, and after this all those signed whose names appear as witnesses.
The learned Judges from whose judg ments this appeal is brought have them selves declared that this is wholly insuffi cient to comply with the statute relating to the due execution and attestation of such a document as this mortgage bond, but they have held that the deed is good as against Hira Bibi, because she has admitted that she signed it.
Mr. Justice Das - with whose judgment Mr. Justice Adami agreed - put the case thus :-
"If the matter were res integra I should doubt whether the admission of a party can render valid that which is in valid. The question is - Is the rule enun ciated in S. 59 of the Transfer of Property Act a rule of law affecting the validity of the mortgage or is it a rule of evidence affecting the proof of the document ? If it be a rule of evidence the question be comes one of proof and the admission of a party would be in the circumstances quite sufficient. But if it be a rule of law then it is difficult to understand how the ad mission of a party helps the solution of the problem. My own view is that S. 70 of the Evidence Act operates only where the mortgagee has not given any evidence at all of due execution of the document by the mortgagor but relies on the admission by the mortgagor. If, for instance, the mortgagor, admits the execution of the document in the written statement it is wholly unnecessary for the mortgagee to adduce any evidence as to the execution of the document. But the matter would stand on an entirely differ ent footing if the mortgagee produces his evidence of execution and that evidence establishes that the document was not attested in the manner required by S. 59 of the Transfer of Property Act. I am, however, bound by the decisions of the Calcutta High Court and of this Court. In accordance with those decisions I must hold that the admissions of the defendant renders it unnecessary for the plaintiffs to prove that the document was executed and attested in the manner required by S. 59 of the Transfer of Property Act.
It appears, then, that the Judges of the High Court of Patna would have held that thin mortgage bond was not duly executed by the appellant, Hira Bibi, had they not felt bound to follow earlier deci sions of that Court and of the High Court of Calcutta. They appear to have been unaware of several cases decided on appeal by this Board, and directly dealing with the matter in question. When these are considered it appears to their Lordships that this case is already concluded by authority. It is needless to do more than to call attention to them very briefly :-
Shamu Patter v. Abdul Kadir Ravu than (1912) 35 Mad 607 : 39 IA 218 : 16 CWN 1009 : 23 MLJ 321 : 12 MLT 338 : (1912) M WN 935 : 10 ALJ 259 : 14 Bom LR 1034 : 16 IC 250 : 16 CLJ 596 (PC) decides that to be a good signa ture attested by two witnesses, within the Transfer of Property Act, 1882, S. 59, the persons signing as witnesses must be present at the execution of the instrument. Their Lordships adopted these words of Dr. Lushington in Bryan v. White 2 Rob. 315:-
Attest' means the persons shall be pre sent and see what passes, and shall when required, bear witness to the facts." And they followed the decision of the House of Lords in Burdett v. Spilsbury 10 Cl and F 340 to the same effect.
The case of Padarath v. Ram Narain Upadhia AIR 1915 PC 21: 37 All 474 : 42 IA 163 : 13 ALJ 809 : 19 CWN 991 : 17 Bom LR 617 : 18 MLT 85 : 2 LW 639 : 29 MLJ 159 : 22 CLJ 165 : (1915) MWN 709 (PC), is in its material facts to tally different from this one, and has, therefore, no bearing on the question here to be decided. But another case - Ganga Pershad Singh v. Ishri Pershad Singh AIR 1918 PC 3: 45 Cal 748 : 45 IA 94 : 4 Pat LW 349 : 16 ALJ 409 : 34 MLJ 545 : 27 CLJ 548 : 22 CWN 697 : 20 Bom LR 587 : 23 MLT 888 : (1918) MWN 382 : 8 LW 176 (PC) is in almost all particulars identical with this present one, and in that instance the mortgage deed was declared to be void as not being duly executed and attested.
These cases sufficiently confute the argument founded upon the words of S. 70 of the Indian Evidence Act, 1872, that-
"The admission of a party to an attest ed document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.
Those words apply only to a document duly attested. The mortgage deed here in question was not in a legal sense at tested" for it was merely signed by per sons who professed to be witnesses to its execution, although in truth and in fact they were not so.
Their Lordships are, therefore, of opi nion that, as against the appellant Mt. Hira Bibi, the mortgage decrees of both the Courts below should be set aside with costs, and the suit dismissed as against her. With regard to the other appellants the decrees should stand.
The costs of Mt. Hira Bibi should be paid by the contesting respondents, but the other, and unsuccessful appellants, should pay the costs of such of the res pondents who appeared. Their Lordships will humbly advise His Majesty accord ingly.
Appeal partly allowed.
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