- Bookmark
- Share
- CaseIQ
Ramji Haribhai And Anr. v. Bai Parvati
Factual and Procedural Background
The central procedural matter concerns the validity of a mortgage-deed (referred to as Exhibit 15) and whether the lower Court misconstrued Section 59 of the Transfer of Property Act. Both lower Courts relied on Calcutta High Court rulings in Girindra Nath Mukerjee v. Bejoy Gopal Mukerjee (1898) 26 Cal. 246 and Abdul Karim v. Salimun (1899) 27 Cal. 190. The mortgage instrument was signed by the mortgagor and bears attestations of three witnesses; two of those witnesses were deceased and the third witness testified that the mortgagor (Dayal Lakshmidas) asked him to attest the mortgage-bond and admitted having signed it and having received the consideration. It was not contended that the signatures on the instrument were not genuine. The lower Appellate Court held the mortgage-deed invalid on the ground that the mortgagor who admitted his signature did not sign it in the presence of the attesting witnesses. The present court examined the statutory wording and relevant authorities and varied part of the decree accordingly.
Legal Issues Presented
- Whether the lower Court misconstrued Section 59 of the Transfer of Property Act in requiring that attestation means witnessing the actual execution (signing) of the instrument rather than permitting attestation based on a personal acknowledgment of signature to the attesting witnesses.
- Whether the mortgage-deed (Exhibit 15) is invalid where two attesting witnesses are deceased and the third witness testifies that the mortgagor admitted signing the instrument and received consideration, given that the signatures were not disputed.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Girindra Nath Mukerjee v. Bejoy Gopal Mukerjee (1898) 26 Cal. 246 | Relied on by the lower Courts in relation to attestation under Section 59; in that case the deed was not attested by two witnesses. | The court found this precedent not applicable here because, in Girindra Nath Mukerjee, the deed lacked attestation by two witnesses, a factual distinction from the present deed which bore attestations of three witnesses. |
| Abdul Karim v. Salimun (1899) 27 Cal. 190 | Held that the attestation required by Section 59 is attestation by witnesses of the execution of the document and not of the admission of execution. | The court explicitly declined to assent to that view, finding nothing in the wording of Section 59 to support reading "attested" as limited to witnessing execution; the court treated Abdul Karim as not determinative here and offered an alternative construction aligning attestation with the practice under the Succession Act. |
| Gokul v. Pudmanund (1902) 29 Cal. 707 | Stated the principle that a code is intended to be exhaustive on matters it declares and judges should not disregard the letter of the enactment. | The court invoked this authority to support a literal reading of the statutory wording and to justify treating "attested" in Section 59 in the same sense as used in Section 50 of the Succession Act, i.e., to include attestation following a personal acknowledgment of signature. |
Court's Reasoning and Analysis
The court begun from the text of Section 59, which requires that a mortgage of principal money of one hundred rupees or upwards be effected "by a registered instrument signed by the mortgagor and attested by at least two witnesses." It considered the rulings relied upon by the lower Courts but analysed the statutory language directly.
First, the court distinguished Girindra Nath Mukerjee on factual grounds: that decision involved a deed not attested by two witnesses, whereas Exhibit 15 bore three attestations.
Second, the court addressed Abdul Karim v. Salimun, which held that "attestation" under Section 59 required witnessing the execution rather than mere admission of execution. The present court stated it could not assent to that interpretation because nothing in the wording of Section 59 indicates such a restriction. The court compared the wording of Section 59 with Section 50 of the Succession Act, where the Legislature treated attestation by witnesses who sign after receiving a personal acknowledgment of the testator's signature as valid attestation of a will.
Relying on the principle from Gokul v. Pudmanund that one should adhere to the letter of a code, the court concluded there is no reason to use "attested" in a different sense in the Transfer of Property Act than in the Succession Act. Consequently, an instrument of mortgage can be treated as duly attested where witnesses sign in the presence of the mortgagor after receiving his personal acknowledgment of the signature.
Applying these principles to the facts: Exhibit 15 had three attestations; two witnesses were dead and the third attested that the mortgagor asked him to attest and admitted his signature and receipt of consideration. The signatures were not challenged. The court noted that in the absence of fraud, if all witnesses were dead it would suffice to prove the signatures and the court would apply the maxim omnia praesumuntur rite esse acta (all things are presumed to have been properly done). Also, no objection to the validity of the deed had been taken in the written statement nor was an issue raised on that point at trial. On this basis the court found the lower Courts' conclusion that the deed was invalid (because the mortgagor did not sign in the presence of the attesting witnesses) to be incorrect.
Holding and Implications
Holding: The court varied the decree of the lower Appellate Court in part and directed that, on failure to pay the amount within two months, the decreed debt of Rs. 182 be recovered by sale of the mortgaged property described in the plaint, and any balance be recovered from the estate of the deceased Dayal Lakshmidas. In other respects the decree of the lower Appellate Court was confirmed. The costs throughout were ordered to be borne by the respondent.
Implications: The direct effect is that the mortgage-deed (Exhibit 15) is treated as valid for enforcement purposes under the facts of this case and the decree is modified to permit sale for recovery of the decreed debt if payment is not made within two months. The opinion articulates a textual interpretation of "attested" under Section 59 consistent with the manner the word is used in the Succession Act, and it expressly disagrees with the narrower interpretation in Abdul Karim v. Salimun. The opinion does not state that it is creating any broader binding precedent beyond its application to the present facts.
1. The important question arising in this case is whether the lower Court has misconstrued Section 59 of the Transfer oi' Property Act. Both the lower Courts have relied on the ruling of the Calcutta High Court in Girindra Nath Mukerjee v. Bejoy Gopal Mukerjee (1898) 26 Cal. 246 and Abdul Karim v. Salimun (1899) 27 Cal. 190.
2. Section 59 runs:
Where the principal money secured is one hundred rupees or upwards, a mortgage can be effected only by a registered instrument signed by the mortgager and attested, by at least two witnesses.
4. The case of Girindra Nath Mukerjee v. Bejoy Gopal Mukerjee (1898) 26 Cal. 246 does not apply, as there the deed was not attested by two witnesses. In the case of Abdul Karim v. Salimun (1899) 27 Cal. 190 their Lordships held that the attestation required by Section 59 of the Transfer of Property Act is an attestation by witnesses of the execution of the document and not of the admission of execution. To that view we are unable to express our assent. There is nothing in the wording of the section to lead us to infer that such was the intention of the Legislature. Here the instrument is signed by the mortgagor and bears the attestations of three witnesses. Two of them are dead and the third, who has been examined in the case, states that Dayal Lakshmidas, the mortgagor, asked him to attest the mortgage-bond and admitted having signed it and having received the consideration. It has never been contended that the signatures are not genuine. If all the witnesses had been dead it would only have been necessary, in the absence of any allegation of fraud, to prove the signatures, and the Court would have acted on the maxim omnia prsumuntur rite esse acta. No objection was taken in the written statement to the validity of the deed and no issue was raised on the point. We may remark there is nothing to justify the inference that as the attestations of the deceased witnesses appear to have been written with a different ink they could not have witnessed the execution of the mortgage-bond.
5. It has been held by their Lordships of the Privy Council in a recent case Gokul v. Pudmanund (1902) 29 Cal. 707 that "the essence of a Code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction." If Section 50 of the Succession Act (X of 1865) be referred to, it will be seen that attestation by a person who signs a will in the presence of the testator after receiving from the testator a personal acknowledgment of his signature or mark is treated by the Legislature as attesting the will, and not as a mere attestation of the testator's admission of execution. The words used in the third paragraph of Section 50 of the Succession Act are "The will shall be attested by two or more witnesses...shall be necessary." And the words used in Section 59 of the Transfer of Property Act are "by a registered instrument signed by the mortgagor and attested by at least two witnesses." It seems to us there is nothing in Section 59 of Act IV of 1882 to warrant the conclusion that' the word "attested" is used in this Act, by the Legislature in a different sense from that in which it is used in Section 50 of the Succession Act, and to read into the former section a provision that an attestation in the presence of the mortgagor by a person who has received from him a personal acknowledgment of his signature on the instrument of mortgage is not an attestation within the requirements of Section 59 of the Transfer of Property Act is "to disregard or go outside the letter of the enactment." With due deference to the authority by which the came of Abdul Karim v. Salimun (1899) 27 Cal. 190 was decided, we are of opinion that where a will under the provisions of the succession' act is described by the Legislature as "attested" by witnesses who have signed it in the presence of the testator after having received from him a personal acknowledgment of his signature, an instrument of mortgage can equally be treated as attested under the provisions of Section 59 of the Transfer of Property Act when the witnesses sign it in the presence of the mortgagor after having received from him a personal acknowledgment of his signature.
6. The mortgage-deed (Exhibit 15) which was held proved by the lower Courts was wrongly held to be invalid on the ground that the mortgagor who admitted his signature did not sign it in the presence of the attesting witnesses.
7. We vary the decree of the lower Appellate Court by ordering that on failure to pay the amount within two months the decreed debt, Rs. 182, be recovered by sale of the mortgaged property described in the plaint, and the balance, if any, from the estate of the deceased Dayal Lakshmidas. In other res pacts the decree of the lower Appellate Court is confirmed. The costs throughout will be borne by the respondent.
Alert