1. The suit out of which the present second appeal arises was commenced by the plaintiff, now appellant, before the Munsif of Bogra for enforcing a mortgage bound executed by the defendants, now respondents. The defendants while admitting execution contend that the bond was not properly attested and the plaintiff is not entitled to a mortgage-decree and the claim for personal decree is barred by limitation as it was filed more than six years after due date of payment. The Munsif gave effect to the contentions of the defendant and dismissed the suit. Against the decision of the Munsif an appeal was preferred to the Subordinate Judge of Bogra and the learned Subordinate Judge dismissed the appeal by a judgment dated the 20th of August 1924. Against this decision the present second appeal has been preferred to this Court by the plaintiff and it has been contended on his behalf by the learned Advocate for the appellant that the Courts below were wrong in dismissing the suit on the ground of want of proper attestation of the mortgage-bond seeing that the facts of this case attract the operation of Act 27 of 1926, Transfer of Property Amendment Act.
2. In order to examine the validity of the ground taken it is necessary to state the findings of fact arrived at by the Court of Appeal below. The facts found are these : Both the mortgagors are illiterate persons and their names were written out in the bond by the pen of the writer Karuna Kanta who himself subscribed as such under these signatures. At the foot of the document, besides the scribe, Boyetulla and Kheru Bepari are described as attesting witnesses; Boyetulla said that he was called after the execution was over; other attesting witness, viz., Kheru Bepari was not examined and we are told by the learned Advocate on both sides that he is now dead; Thus the attesting witnesses did not see the executants sign the mortgage but merely received an acknowledgment of the execution by the executants and then signed the bond. According to the law which prevailed at the time when the suit was instituted there was no proper attestation within the meaning of Section 59 of the Transfer of Property Act : see the decision of the Judicial Committee in the case of Shamu Patter v. Abdul Kadir [1912] 35 Mad. 607. It is said, however, that the effect of that decision has been rendered mugatary by the enactment of act 27 of 1926, and according to this Act the word "attest" in Section 59 of the Transfer of Property Act would include attestation by a person who has received an anknowledgment of the execution by the executants. The question in controversy really depends on whether a retrospective operation should be given to act 27 of 1926, for it is conceded that if no retrospective operation could be given to the said Statute then the plaintiff's suit must fail. It is conceded by the learned Advocate for the appellant that ordinarily no retrospective operation should be given to a Statute in matters affecting the substantive right of parties but it is said that this rule has no application if the Act or the Statute is declaratory in form and in support of this contention reliance has been placed on the decision of Attorney-General v. Thubald [1890] 24 Q.B.D. 557. The true rule seems to us to have been laid down in the following words of Lord Watson in the case of Young v. Adams [1898] A.C. 469:
It may be true that the enactments are declaratory in from; but it does not necessarily follow that they are, therefore, retrospective in their operation and were meant to apply to acts which had been completed or to interests which had vested before they became law.
3. In In re Pulborough School Board Election (1894) 1 Q.B.D. 725, Lopes, L.J., said:
It is a well-recognised principle in the construction of Statutes that they operate only on oases and facts which come into existence after the Statutes were passed, unless a retrospective effect is clearly intended.
4. In the case of the Colonial Sugar Refining Co. v. Irving [1905] A.C. 369 the Judicial Committee of the Privy Council laid down that if an Act touches a right in existence at the passing of an Act, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, no retrospective effect should be given to the Act unless a clear intention to that effect is manifested. In the light of these principles let us proceed to examine the provisions of Act 27 of 1926, to see if it is restrospective by express enactment or by necessary intendment. The preamble is as follows:
Whereas it is expedient to explain certain provisions of the Transfer of Property Act, 1882, it is hereby enacted as follows.
5. Then follow the provisions of section 2 which does not declare what hag always been the meaning of Section 2, but enacts that the word "attest" which was not defined in the Act of 1882 should be defined and that a new definition be inserted in Section 3 of the Act of 1882, which definition is not in accordance with the meaning of the word "attest" as was settled by a decision of the Judicial Committee of the Privy Council in the case of Shamu Patter v. Abdul Kadir Rowthan [1912] 35 Mad. 607 so far back as 1912. The Judicial Committee re-affirmed their decision in the case of Hira Bibi v. Ram Hari Lal and observed as follows:
Shamu Patter v. Abdul Kadir Rowthan [1912] 35 Mad. 607 decides that to be a good signature attested by two witnesses within the meaning of Section 59 of the Transfer of Property Act the persons signing as witnesses must be present at the time of the execution of the instrument. Their Lordships adopted these words of Dr. Lushington in Bryan v. White [1850] 2 Rob. 315, "Attest" means the persons shall be present 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. Shilsbury [1843] 10 Cl. & F. 340 to the same effect.
6. It is clear, therefore, that by Section 2 of the Act the Legislature intended to alter the meaning of the word "attest" as interpreted by the highest Judicial Tribunal of the realm. In these circumstances the Legislature if it wanted to give a retrospective operation to the Act should have said so in clear unambiguous terms. That intention is not clear by the use of expression "means" in Section 2. In the case of Attorney General v. Theobald [1890] 24 Q.B.D. 557 relied on by the appellant the words used were:
the description of property marked (c) shall be construed as if the expression 'voluntary settlement' included any trust...in favour of a volunteer.
and it was held that the earlier Act must be read as having the meaning given by the later Act. The effect of the later enactment was that the word "voluntary" had always that meaning; and retrospective operation was given. It may be a question how far the decision in Attorney-General v. Theobald [1890] 24 Q.B.D. 557 is right in view of the following observations made in the case of Young v. Adams [1898] A.C. 469:
It does not seem to be very probable that the Legislature should intend to extinguish, by means of retrospective enactment, rights and. interests which might have already vested in a-very limited class of persons, consisting, so far as appears, of one individual, namely the respondent. In such oases their Lordships are of opinion that the rule laid down by Brie, C.J.; in Midland Ry. Co. v. Pye [1861] 10 C.B. (N.S.) 179 ought to apply. They think that, in a case like the present, the learned Chief Justice was right in saying that a. retrospective operation ought not to be given to the Statute, 'unless the intention of the Legislature that it should be so construed is expressed in plain and unambiguous language, because it manifestly shocks one's sense of justice that an act legal at the time of doing it should be made; unlawful by some new enactment.' The ratio is equally apparent when a new enactment is said to convert an act wrongfully done at the time into a legal act, and to deprive the person injured of the remedy which the law then gave, him.
7. It is true that the preamble to the Act of 1926 says that it is explanatory but it is a settled rule that the preamble can not be made use of to control the enactments themselves when they are expressed in clear and unambiguous terms. As Lord Davey observed in Powell v. Kempton Park Race Course Co. [1899] A.C. 143:
There is, however, another rule or warning which cannot be too often repeated, that you must not create or imagine an ambiguity in order to bring in the aid of the preamble or recital. To do so would in many cases frustrate the enactment and defeat the general intention of the Legislature.
8. I have no doubt that the words "attest means" in Section 2 cannot be held to mean the words "attest always meant" so as to make it clear that retrospective operation was intended.
9. It is next argued that want of due attestation of a document renders the document invalid but does not affect the substantive rights of the parties. We are unable to agree in this contention, Here the mortgagors have a right to say to the mortgagee:
You cannot make our property liable as their is no valid mortgage. You can at most get a personal decree against us if you are in time to enforce a personal decree.
10. The mortgagers' vested right to resist an action which intended to effect their property would be affected if retrospective operation is given to the Act of 1926. The law requiring how a document is to be completed is not a mere rule of procedure but a substantive provision : see Gardner v. Lucas [1877] 3 A.C. 582. When the present suit was decided before trial Court the defendants were right in resisting the action on the mortgage on the ground of invalidity of attestation and they successfully resisted the same. That right cannot be taken away by a later Statute unless it was clearly stated in the later Statute that retrospective operation was intended.
12. We are fortified in the view we take by the decision of the majority of a Full Bench of the Allahabad High Court in the case of Girji Nandan v. Hanuman Das . Mr. Gupta drew our attention to the fact that a Bill has been introduced in the Council of State to make it clear that the Act of 1926 was intended to have retrospective operation in view of the decision to the contrary of the Allahabad High Court referred to above. But it is not permissible (for us) to refer to a Bill which is not passed into law for the purpose of construing what an earlier Act meant, Our function is not to legislate but to construe the law as we find it, Giving our best consideration to the matter we think that decision of the present suit does not depend on the Act of 1926 but rests on the law as laid down by the Judicial Committee in the two cases aforesaid. The Courts below were right in holding that the mortgage was not validly attested and in dismissing the suit. The appeal fails and is dismissed but without costs. It has been urged there should be a decree against one of the mortgagors as the evidence shows that there was a valid attestation with regard to him. The ground was not taken in the Courts below nor in the memorandum of appeal and we disallow it.
Panton, J.
13. I agree.