Mt. Hira Bibi and others vs Ram Hari Lal and others

Lord Darling

This is an appeal from a judgment and decree, dated 10th June, 1921, of the High Court of Judica ture at Patna, partly affirming and partly reversing a judgment and decree of the District Judga of Patna. The suit was brought to enforce a mortgage dated 17th August, 1906. It was pleaded by the defendants (appellants) that the mortgage bond is void by reason of its not being attested in accordance with the provisions of the Transfer of Property Act IV of 1882, S. 59.

The only important question upon this appeal is in regard to the appellant Mt. Hira Bibi and her liability on the mortgage bond. It is admitted that she actually signed the bond, but it is a docu ment which requires attestation by wit nesses, as is provided by statute.

Hira Bibi is a pardanashin lady. The evidence shows, beyond contest, that when Hira Bibi signed the mortgage bond not one of the persons who signed as witnesses was present or saw her sign it. She was behind the purda. Anant Prasad, her son, took this deed, and others, inside the purdah. He came out and told those outside, and out of sight of Hira Bibi, that she had signed the deed, and after this all those signed whose names appear as witnesses.

The learned Judges from whose judg ments this appeal is brought have them selves declared that this is wholly insuffi cient to comply with the statute relating to the due execution and attestation of such a document as this mortgage bond, but they have held that the deed is good as against Hira Bibi, because she has admitted that she signed it.

Mr. Justice Das - with whose judgment Mr. Justice Adami agreed - put the case thus :-

"If the matter were res integra I should doubt whether the admission of a party can render valid that which is in valid. The question is - Is the rule enun ciated in S. 59 of the Transfer of Property Act a rule of law affecting the validity of the mortgage or is it a rule of evidence affecting the proof of the document ? If it be a rule of evidence the question be comes one of proof and the admission of a party would be in the circumstances quite sufficient. But if it be a rule of law then it is difficult to understand how the ad mission of a party helps the solution of the problem. My own view is that S. 70 of the Evidence Act operates only where the mortgagee has not given any evidence at all of due execution of the document by the mortgagor but relies on the admission by the mortgagor. If, for instance, the mortgagor, admits the execution of the document in the written statement it is wholly unnecessary for the mortgagee to adduce any evidence as to the execution of the document. But the matter would stand on an entirely differ ent footing if the mortgagee produces his evidence of execution and that evidence establishes that the document was not attested in the manner required by S. 59 of the Transfer of Property Act. I am, however, bound by the decisions of the Calcutta High Court and of this Court. In accordance with those decisions I must hold that the admissions of the defendant renders it unnecessary for the plaintiffs to prove that the document was executed and attested in the manner required by S. 59 of the Transfer of Property Act.

It appears, then, that the Judges of the High Court of Patna would have held that thin mortgage bond was not duly executed by the appellant, Hira Bibi, had they not felt bound to follow earlier deci sions of that Court and of the High Court of Calcutta. They appear to have been unaware of several cases decided on appeal by this Board, and directly dealing with the matter in question. When these are considered it appears to their Lordships that this case is already concluded by authority. It is needless to do more than to call attention to them very briefly :-

Shamu Patter v. Abdul Kadir Ravu than (1912) 35 Mad 607 : 39 IA 218 : 16 CWN 1009 : 23 MLJ 321 : 12 MLT 338 : (1912) M WN 935 : 10 ALJ 259 : 14 Bom LR 1034 : 16 IC 250 : 16 CLJ 596 (PC) decides that to be a good signa ture attested by two witnesses, within the Transfer of Property Act, 1882, S. 59, the persons signing as witnesses must be present at the execution of the instrument. Their Lordships adopted these words of Dr. Lushington in Bryan v. White 2 Rob. 315:-

Attest'' means the persons shall be pre sent 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. Spilsbury 10 Cl and F 340 to the same effect.

The case of Padarath v. Ram Narain Upadhia AIR 1915 PC 21: 37 All 474 : 42 IA 163 : 13 ALJ 809 : 19 CWN 991 : 17 Bom LR 617 : 18 MLT 85 : 2 LW 639 : 29 MLJ 159 : 22 CLJ 165 : (1915) MWN 709 (PC), is in its material facts to tally different from this one, and has, therefore, no bearing on the question here to be decided. But another case - Ganga Pershad Singh v. Ishri Pershad Singh AIR 1918 PC 3: 45 Cal 748 : 45 IA 94 : 4 Pat LW 349 : 16 ALJ 409 : 34 MLJ 545 : 27 CLJ 548 : 22 CWN 697 : 20 Bom LR 587 : 23 MLT 888 : (1918) MWN 382 : 8 LW 176 (PC) is in almost all particulars identical with this present one, and in that instance the mortgage deed was declared to be void as not being duly executed and attested.

These cases sufficiently confute the argument founded upon the words of S. 70 of the Indian Evidence Act, 1872, that-

"The admission of a party to an attest ed document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.

Those words apply only to a document duly attested. The mortgage deed here in question was not in a legal sense at tested" for it was merely signed by per sons who professed to be witnesses to its execution, although in truth and in fact they were not so.

Their Lordships are, therefore, of opi nion that, as against the appellant Mt. Hira Bibi, the mortgage decrees of both the Courts below should be set aside with costs, and the suit dismissed as against her. With regard to the other appellants the decrees should stand.

The costs of Mt. Hira Bibi should be paid by the contesting respondents, but the other, and unsuccessful appellants, should pay the costs of such of the res pondents who appeared. Their Lordships will humbly advise His Majesty accord ingly.