SANA PANU ROUT Vs. RAMA BISWAL

JUDGEMENT

(1.) THIS is a Defendant's second appeal against the confirming judgment of the lower appellate court arising out of a suit for foreclosure on the basis of a mortgage transaction dated 9 -5 -1944 for a consideration of Rs. 400/ -. The transaction had taken place in the ex -State area of Nilgiri. The Defendant had taken up several pleas denying the passing of consideration and further asserting that the transaction Was never acted upon and therefore the original deed never came into the custody of the Plaintiff. The Defendant had made a further attack that this Was not a valid mortgage transaction in accordance with law.

(2.) BOTH the courts below have found as a matter of fact, inspite of the position that the original deed was not forthcoming from the custody of the Plaintiff, that the Plaintiff has proved, by overwhelming evidence, that the transaction was for consideration. The concurrent finding appears to be unassailable in second appeal. But this is not sufficient to dispose of the appeal.

(3.) THE point urged by the learned Counsel appearing on behalf of the Respondent is that the Sub Registrar before whom the executant admitted the signature can be taken to be an attesting witness in order to comply with the provisions of Section 59. In my opinion, the Sub Registrar cannot be taken to be a competent attesting witness simply by the endorsement that the executant had admitted the signature before him. The bilateral requirement of the provisions of Section 3, that is the definition of toe word "attested" requires, as I have indicated above, that the Sub Registrar must also sign in the presence of the executant or executants. In the present case that item of evidence is conspicuously absent. I would in this connexion refer to a decision of their Lordships of the Privy Council in the case of Surendra Bahadur v. Behari Sing : A.I.R 1939 P.C. 117. Their Lordships decided one of the essentials of attestation of mortgage deed is that each of the attesting witnesses must have signed the instrument in the presence of the executant". On a thorough consideration of the provisions of the Registration Act and of tile Transfer of Property Act their Lordships came to the definite conclusion that the Sub -Registrar could not be taken to be an attesting witness as there was nothing to indicate that he had signed in the presence of the executants. Mr. R.K. Das, the learned Counsel for the Respondent, relies upon a Full Bench decision of the Madras High Court in the case of Verappa Chettiar v. Subrahmanaya Ayyar, A.I.R. 1939 Mad. 1 (FB). He placed the entire judgment which is just less than a column. This aspect of the matter has been completely ignored there. In my opinion, with very great respect i will follow the decision of their Lordships of the Privy Council which appears to me exactly in accord with the very definition of "attestation".