Chekkur Puthaluth Poothati Edathil Kunhi Sankaran Nambiar vs Ponniath Akathoothu Narayanan Tirumunpu and Others

Seshagiri Ayyar, J.—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.

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.

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)

ILR 41 Cal. 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.

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.

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.

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.

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.,

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.

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.

In Tupper v. Foulkes (1861) 9 C.B. 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.

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.

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.

We may also refer to the case of Adsetts v. Hives (1863) 33 Bea., 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.

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.

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 ILR (1912) 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 ILR (1912) 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 ILR (1912) 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.

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 ILR (1919) All. 22, and the other of the Patna High Court, Ramdei

v. Chunder Bali Bibi 44 Ind.Cas. 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) ILR 41 Cal. 972 (P.C.) did not apply.

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) ILR 41 Cal. 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.