Before determining the various questions of law that have been argued in this appeal, it seems to us that it is necessary that findings should be recorded and sent up by the lower Court, with regard to the following matters:
1. Whether the Sub-Registrar, who registered the instrument, Ex. A in the case, made his signature in the registration endorsement, referring to the admission of execution by the executants of the document, in the presence of the executants?
2. Whether the witnesses who identified the executants before the Sub-Registrar were present when such admission of execution was made by the executants?
3. Whether they or either of them made their signature in the presence of the executants?
Time for return of the findings is two months.
Ten days are allowed for objections.
[This Appeal again came on for hearing on 10th and 11th April 1928, after the return of the findings of the lower Court, before their Lordships the Chief Justice and Odgers, J.].
ORDER OF REFERENCE TO A FULL BENCH.
The Chief Justice.—This appeal was argued before Mr. Justice Srinivasa Aiyangar and myself and we asked for findings on three points. The findings have come to hand, but it is pointed out by the learned vakils in the case that a point of law confronts us in limine, the disposal of which might affect the appeal, so as to render discussion of any subsidiary points unnecessary. The points are of considerable importance and relate to the position of a Registration Officer, as witness to a document, which comes before him in his official capacity and to which he affixes his signature. There is direct authority in Patna, for the position taken up by the appellant, in the case of Sarada Prasad Tej v. Triguna Charan Ray(1). The decision in that case has been gravely doubted by Mr. Justice Carr in S. M. A. R. A. L. Firm v. R. M. M. A. Firm(2). The opinion of the Patna High Court is also supported in Radha Mohan Dutta v. Nripendra Nath Nandy(3). The question is one of importance and is likely to arise constantly, especially since the definition of “attestation” in the amending Act. It is one that is very likely to recur and one of the questions that will arise will be, as to the effect of the amending Acts, with their new definition of “attestation,” which did not exist in the old Transfer of Property Act, In these circumstances, we think it best to refer the following questions to a Full Bench:
1. Whether Acts XXVII of 1926, X of 1927 and XII of 1927 are retrospective in their nature, so as to apply to documents executed on a date prior to their coming into force?
2. Whether the signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement, under Sects. 58 and 59 of the Indian Registration Act, amount to sufficient attestation, within the meaning of Sect. 59 of the Transfer of Property Act, read with the aforesaid amending Acts?
3. Consequently, whether or no Appeal No. 170 of 1925 was rightly decided?
[This Appeal came on for final hearing on 3rd August 1928 before a Full Bench constituted as above].
Messrs. T. V. Venkatarama Aiyar and T. V. Ramanatha Aiyar for the Appellant.
Messrs. T. V. Muthukrishna Aiyar, N. Muthuswami Aiyar T. S. Subramania Aiyar and T. S. Srinivasa Aiyar for the Respondents.
OPINION
The Chief Justice. — My brother Odgers and I referred this case to a Full Bench, rather from a desire to have an authoritative ruling for the Courts of this Presidency than from any real doubt we had, as to the right answers to the questions that we referred.
The answers to the questions are as follows:
(1) The Acts are retrospective. We should have thought that Acts XXVII of 1926 and X of 1927 showed a clear intention that they were to be regarded as retrospective, but the terms of Act XII of 1927 preclude further discussion.
(2) The signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement are a sufficient attestation, within the meaning of the Transfer of Property Act and its subsequent amending Acts. The argument against this conclusion was that the signatures were made alio intuitu, to satisfy the requirements of the Registration Act, and cannot therefore be invoked in aid for another purpose, viz., attestation under the Transfer of Property Act, though in fact all the conditions laid down by the latter Act are fulfilled. The Registering Officer and the identifying witnesses had exactly the same duty imposed upon them by the Registration Act, as would have vested upon them as attesting witnesses under the Transfer of Property Act, and that duty they discharged. We think that this argument is at its best too artificial to prevail, and we agree with Sarada Prasad Tej v. Triguna Charan Ray and Radha Mohan Dutta v. Nripendra Nath Nandy in rejecting it.
(3) As Appeal No. 170 of 1925 has not been reported, it is unnecessary to express any opinion on the correctness of the decision.
Ramesam, J.—I agree.
Pakenham Walsh, J.—I agree.
N.R.RReference answered.