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Seshagiri Ayyar

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Structured Summary of the Opinion

Factual and Procedural Background

This is a suit on a mortgage. In 1908 the first defendant, who was the owner of the property, executed a deed (Exhibit A) in favour of the third defendant. The third defendant subsequently assigned the mortgage to the plaintiff. The defence challenges the mortgage's validity on grounds of defective execution, defective attestation, and improper registration.

The deed as originally drawn covered a single ("first") item of property. Subsequently a second item of property was included (an interpolation). The finding recorded in the lower courts was that the second item was included with the knowledge and consent of the mortgagor and in the presence of the attesting witnesses. Both lower courts found no fraud on the registration laws or on any contracting party in making that interpolation, and found that the second item was included largely to facilitate registration near the mortgagor's residence and for the convenience of the parties.

The appeal (Second Appeal) challenges the conclusions below and raises questions about whether the interpolation and the circumstances of execution and attestation render the entire deed invalid and thus unenforceable.

Legal Issues Presented

Whether the interpolation (inclusion of a second item of property after the deed was engrossed and signed) vitiates the deed for want of proper execution.
Whether the attestation by the witnesses, given the insertion of the second item, is valid as to that second item.
Whether the inclusion of property not originally intended to be mortgaged, for the purpose of facilitating registration in a particular sub-district, constitutes a fraud upon the registration law.
Whether, on the facts, the lower courts were correct in holding the deed valid and dismissing the challenge to registration and formalities.

Arguments of the Parties

Contentions attributed to Mr. Madhavan Nair

The document was not executed by the mortgagor with reference to the second item of property.
The attesting witnesses did not attest with respect to the second item.
Therefore, although the execution and attestation might be valid for the first item, the whole document is inoperative because it could not lawfully have been registered in the sub-district where it was registered if the second item had not been included.

Contentions attributed to Mr. Menon

Relied on decisions of the Allahabad and Patna High Courts (Pahladi Lal v. Musammat Laraiti and Ramdei v. Chunder Bali Bibi) to support the proposition that inclusion of property (even over which the mortgagor lacked disposing power) to facilitate registration in a particular sub-district does not necessarily constitute fraud on the registration law.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Harendra Lal Roy Chowdhuri v. Haridasi Debi (1914) I.L.R., 41 Calc., 972 (P.C.)	Authority on fraud upon the registration law where property beyond disposing power is included.	The court stated that the present deed does not offend the rule enunciated in this case if the deed is otherwise valid; the court would have had doubts about fraud on the registration law if it had not already held valid execution and attestation.
David Yule v. Ram Khalwan Sahai (1901) 6 C.W.N. 329	On its face supports the respondent where a document was signed before the body was written up; held executant could not dispute its validity (but noted as obiter).	The court refused to base its decision on this obiter dictum and expressed doubt as to its correctness, therefore not relying on it.
Burgis v. Constantine (1908) 2 K.B. 484	Where a material part of a document is left blank and later filled, the document is void for uncertainty; a deed left blank in a material part cannot be validated by filling in after execution (summarized from 10 Halsbury, para. 687).	The court acknowledged the principle but found the present case distinguishable and instead applied authorities that permit alterations made in the progress of the transaction with consent.
Hall v. Chandless (1827) 4 Bing. 123	Principle that certain alterations made with consent/privity in the progress of the transaction do not vitiate a deed.	The court held the present case falls within this principle and relied upon it to support the validity of the deed despite the interpolation.
Doe d Lewis v. Bingham (1821) 4 B. & Ald. 672	Alterations during the progress of a transaction, with consent, leave the deed valid as to parties who executed it provided their situation is not affected (Bayley, J.).	Applied directly: the court concluded the interpolation did not affect validity because it was made in the progress of the transaction with consent.
Tupper v. Foulkes (1861) 9 C.B. (N.S.) 797	Admissions by a defendant (e.g., accepting and adopting a document executed by another on his behalf) constitute evidence and can defeat a plea of non est factum.	Used to support the view that a party's subsequent adoption and use of a document (including taking active part and directing proceedings) is evidence that he intended to acknowledge it as his deed; the court considered the present case an a fortiori instance because the defendant himself made the interpolation and registered it.
Adsetts v. Hives (1863) 33 Beav. 52	Immaterial alterations intended to supply formal defects do not vitiate a deed; approval of Doe d Lewis v. Bingham cited.	Cited in support of the line of authority permitting certain alterations without vitiating the deed.
Shamu Pattar v. Abdul Kadir Routhan (1912) I.L.R., 35 Mad., 607	Attestation rule: unless attesting witnesses see the execution by the party, there is no valid attestation.	The court distinguished this case because, in the present matter, the attesting witnesses both saw the mortgagor sign and saw the interpolation; thus Shamu Pattar's difficulty did not arise here.
Muniappa Chettiar v. Vellachamy Hannadi (1918) M.W.N. 853	Where attestors did not see a second executant sign, the attestation did not cover that second party's execution (follows Shamu Pattar).	Cited as analogous authority for the proposition that attestation must be seen to be effective for a particular executant; the court used it to highlight that in the present case witnesses did see both signature and interpolation.
Pahladi Lal v. Musammat Laraiti (1919) I.L.R., 41 All., 22	Where property over which mortgagor had no power of disposition was included to facilitate registration in a particular sub-district, there was held to be no fraud on the registration law.	Referred to by the court (cited by Mr. Menon) in connection with the registration argument; the court acknowledged the decision but did not need to decide the broader point because it found valid execution and attestation.
Ramdei v. Chunder Bali Bibi (1918) 44 I.C. 399 (Patna High Court)	Similar proposition to Pahladi Lal: inclusion to aid registration does not necessarily amount to fraud on registration law.	Cited alongside Pahladi Lal as supporting authorities; again noted but not determinative because the court had already decided on execution and attestation grounds.
10 Halsbury (paragraph 687)	Statement of law: a deed must be written before it is sealed; sealing a writing left blank in material part is void and cannot be made a deed by filling blanks after execution.	Quoted as the general principle on blanks and post-execution filling; the court considered it but concluded the present facts were governed by authorities allowing alterations made in the course of a transaction with consent.

Court's Reasoning and Analysis

The court proceeded by first accepting the factual findings of the lower courts that the second item had been included with the knowledge and consent of the mortgagor and in the presence of the attesting witnesses, and that there was no fraud on the registration law or any contracting party in making the interpolation. The lower courts also found that the inclusion was done primarily to enable convenient registration and to avoid delay.

The court considered competing authorities and principles:

It noted the general rule (as summarized in 10 Halsbury and Burgis v. Constantine) that a deed left blank in a material part when executed cannot be validated by subsequently filling the blank. The court acknowledged this principle but found the present case distinguishable.
The court rejected reliance on the obiter dictum in David Yule v. Ram Khalwan Sahai, expressing doubt as to that authority and declining to rest its decision upon it.
Instead, the court accepted and applied authorities permitting certain post-execution alterations made "in the progress of the transaction" with the consent of the parties — notably Hall v. Chandless and Doe d Lewis v. Bingham. The court relied on Bayley, J.'s formulation that an alteration made in the progress of the transaction leaves the deed valid as to parties who previously executed it, so long as their situation is not affected.
The court viewed the present interpolation as having been made before registration, with consent of all parties, and to give validity to a document not yet registered; on that basis it concluded the interpolation did not vitiate the deed.
On the question of adoption and subsequent conduct, the court relied on Tupper v. Foulkes to the effect that a party's later acceptance/adoption of a deed is strong evidence against a plea of non est factum. Here the mortgagor himself inserted the words complained of and then presented the altered document for registration — a fact the court described as an a fortiori reason to treat the deed as executed with reference to both items.
Regarding attestation, the court found that attesting witnesses were present both when the mortgagor signed and when the interpolation was made; therefore the witnesses must be deemed to have agreed that their attestation applied to both items. The court distinguished earlier authorities (Shamu Pattar; Muniappa Chettiar) where attestors had not seen the execution by a subsequent executant and therefore their attestations did not cover that execution.
Finally, on the narrower question of fraud upon the registration law, the court noted decisions (Pahladi Lal and Ramdei) supporting the view that inclusion to facilitate registration need not amount to fraud; however, because the court had already concluded there was valid execution and attestation, it did not decide the broader question and expressly stated it would not pursue that question further.

Holding and Implications

Final Disposition: The court held that the deed was valid as to both the first and the subsequently interpolated second item. The Second Appeal was dismissed with costs.

Implications:

Direct effect: The decision affirms the validity and enforceability of the mortgage deed as altered on the facts found (interpolation made with the mortgagor's knowledge and consent, in the presence of the attesting witnesses, and before registration).
On attestation: Where attesting witnesses both see the signature and the subsequent interpolation and remain present, their attestation is treated as covering the interpolated matter.
On fraud/registration: Although the court referred to authorities dealing with inclusion to facilitate registration and possible fraud on the registration law, it did not decide the broader legal question because it resolved the case on execution and attestation grounds.
Precedential effect: The court relied primarily on historical authorities (Hall v. Chandless; Doe d Lewis v. Bingham; Tupper v. Foulkes) to justify permitting alterations made in the progress of the transaction with consent; the opinion does not announce a novel legal doctrine beyond the application of those authorities to the facts at hand.

This summary is based exclusively on the content of the provided opinion and does not add or infer facts or legal conclusions beyond those stated by the court in the opinion.

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Chekkur Puthalath Poothak Etathil Kunhi Sankaran Nambiar v. Ponniath Akathoothu Narain Thirumumpu And Ors.

1. This is a suit on a mortgage. The first defendant, the owner of the property, executed Exhibit A to the third defendant in 1908. The third defendant assigned it to the plaintiff. The defence is that the mortgage is invalid for want of proper execution, proper attestation, and proper registration.

2. The first item of the plaint property was the only property originally intended to be mortgaged. The deed was engrossed and signed by the first defendant and attested by two witnesses, with this intention. Subsequently, the second item of property was included, The finding is that this was done with the knowledge and consent of the mortgagor and in the presence of the attesting witnesses.

3. The lower Courts have expressed themselves somewhat loosely in giving findings upon this part of the case. Both the Courts are agreed that there was no fraud either against the registration laws or against any of the parties to the contract, in making this interpolation. It is also clear, from what both the lower Courts say, that the object of adding the second item was not so much to give an additional security to the mortgagee as it was to enable the mortgagor to get the document registered near the place where he was living. The evidence makes it clear that it was to serve the convenience of both the parties to the transaction that this item was included, because the aim was to avoid delay in registering the deed. On these facts, we feel no hesitation in holding that the deed does not offend the rule enunciated in Harendra Lal Roy Chowdhuri v. Haridasi Debi (1914) I.L.R., 41 Calc., 972 (P.C.), if it is otherwise valid. The object of the interpolation was not to effect a fraud upon the registration law. Whatever might have been the original intention of the parties, they deliberately included the second item in the mortgage.

4. The contentions raised by Mr. Madhavan Nair are these: the document was not executed by the mortgagor with reference to the second item; it was not attested by the witnesses with respect to that item; therefore, although the document might be valid so far as the execution and attestation of the first item of property is concerned, the whole document is inoperative as the document could not have been validly registered in the sub-district where it was registered, if the second item had not been included.

5. There is no authority directly bearing on this question. There is a decision--David Yule v. Ram Khalwan Sahai (1901) 6 C.W.N. 329--which on the face of it, supports the respondent. In that case a document was signed by the executant before the body of the document was written up. The learned Judges held that it was not open to the executant to dispute its validity. As Mr. Madhavan Nair pointed out, it was an obiter dictum; and we doubt very much, whether this decision is right.

6. In Burgis v. Constantine (1908] 2 K.B., 484, it was held that where a material part of the document was left blank the document should not be regarded as valid. The principle is thus summarized in 10 Halsbury, paragraph 687:

A deed must be written before it is sealed. If, therefore, a man seal and deliver a writing which is left blank in some material part, that is void for uncertainty and is not his deed and it cannot be made his deed merely by filling up the blanks after his execution of it.

7. Therefore, we are not prepared to rest our decision upon the obiter dictum contained in David Yule v. Ram Khalwan Sahai (1901) 6 C.W.N., 329. But it seems to us that the present case comes within the principle of Hall v. Chandless (1827) 4 Bing., 123. There were blanks, in that case, which were subsequently filled up and some of the interpolations were of material character. In that case it was hold that, where after the execution of the deed by some of the parties, the deed is altered with the consent and privity of the promisee, the document is not vitiated. The alteration in that case was the deletion of the property which was included by mistake. Such an omission was held not to affect the validity of the deed. In Doe. d Lewis v. Bingham (1821) 4 B. & Ald., 672, where there were material alterations by filling up the blanks left in the body of the document after it was executed, the learned Judges held that the document was enforcible. Bayley, J., said, I am of opinion that any alteration made in the progress of the transaction (the italics are ours) still leaves the deed valid as to the parties previously executing it, provided such alteration has not affected the situation in which they stood.

Abbot C.J., Holroyd J. and Best, J.

8. Agreed with this view. In the language of Bayley, J., it can be said of the present case that the alteration was made in the progress of the transaction, to give validity to the document which had not yet been registered; before the document was taken for registration, with the consent of all the parties this interpolation was made. Applying the principle in Doe. d Lewis v. Bingham (1821) 4 B. & Ald., 672, we are of opinion that the interpolation does not affect the validity of the document.

9. In Tupper v. Foulkes (1861) 9 C.B. (N.S.) 797, the defendant had authorized his son to execute the document. After its execution, he accepted it as his own. Subsequently in an action on the bond, he pleaded non est factum. Earle, C.J., held, I am clearly of opinion that the admission of the defendant is always evidence to prove everything that he intended to admit.

Williams, J. and Keating, J.

10. Agreed with the Chief Justice; Keating, J., expressed himself very strongly on the point. He said:

First there was an admission by the defendant that he had given authority to his son to execute the deed in his name.... The deed being present and seen by the defendant, he deliberately adopts the act of his son. But the evidence does not stop there. It was proved that the defendant afterwards took an active part in directing the proceedings under this very deed. It was clear from his statement and his acts that he intended to acknowledge the deed as his deed. That amounts to delivery in law, and is evidence upon non est factum.

11. In the present case, it is in evidence that the defendant himself inserted in the body of the deed the words which he complains to have vitiated it. He subsequently had it registered. This is therefore an a fortiori case.

12. We may also refer to the case of Adsetts v. Hives (1863) 33 Beav., 52. No doubt, there it was held that an immaterial alteration which was intended to supply formal defects did not vitiate the deed. We cite this case because Sir John Romilly refers with approval to Doe. d Lewis v. Bingham (1821) 4 B. & Ald., 672.

13. On the authority of the above cases, we are of opinion that by the fact of himself inserting the interpolation and presenting the altered document for registration, the defendant must be deemed to have executed the document not only with reference to the first item, but also with reference to the second item.

14. The second question is, whether it can be said that there was proper attestation in respect of the document as altered. The interpolation is found to have been made in the presence of the attesting witnesses. Reliance was placed by Mr. Madhavan Nair upon Shamu Pattar v. Abdul Kadir Routhan (1912) I.L.R., 35 Mad., 607, for the proposition that unless the attesting witnesses see the execution by the party, there can be no valid attestation. The difficulty felt in Shamu Pattar v. Abdul Kadir Routhan (1912) I.L.R., 35 Mad., 607 does not arise in this case. The attesting witnesses were present when the mortgagor put his signature to the document, and they were also present when the mortgagor made the interpolation; they must therefore be deemed to have agreed to regard their attestation as applicable not only to the first item of the property comprised in the document, but to the second item as well. This is not a case where the attestors did not see the signature of the executant but only relied on his acknowledgment. The only other authority which need be referred to is Muniappa Chettiar v. Vellachamy Hannadi (1918) M.W.N., 853. In that case, two persons intended to execute a document. One alone executed it, and then the attestors attested. Then the document was taken to the second executant who signed it. It was held that the attestation would not cover the execution by the second party. This conclusion follows directly from Shamu Pattar v. Abdul Kadir Routhan (1912) I.L.R., 35 Mad., 607. The attestors did not see the second executant sign the document and therefore, so far as that party was concerned, there was no valid attestation.

15. We may briefly notice the last argument addressed to us by the learned Counsel for the appellant regarding registration. There are two decisions, one of the Allahabad High Court, Pahladi Lal v. Musammat Laraiti (1919) I.L.R., 41 All., 22, and the other of the Patna High Court, Ramdei v. Chunder Bali Bibi (1918) 44 I.C., 399, cited by Mr. Menon in support of his contention. In both the cases, property over which the mortgagor had no power of disposition was included with a view to facilitate registration in a particular sub-district, and it was held that there was no fraud upon the registration law, and that; Harendra Lal Roy Chowdhuri v. Haridasi Debi (1914) I.L.R., 41 Calc., 972 (P.C.). 28 Mad.--52 did not apply.

16. If we did not hold that there was valid execution and attestation, we would have felt considerable doubts on this part of the case. Where a party who has no disposing power over a property includes it for the purpose of getting the document registered within a particular jurisdiction, as at present advised we are not satisfied that there would not be a fraud upon the registration law within the language of the Judicial Committee in Harendra Lal Roy Chowdhuri v. Haridasi Debi (1914) I.L.R., 41 Calc., 972 (P.C.) but, as we have held that there was valid execution and attestation, we need not pursue this question any further. In our opinion, the decision of the Courts below is right and this Second Appeal must be dismissed with costs.

Chekkur Puthalath Po... v. Ponniath Akathoothu ...