DAHU Vs. JAMADAR RAI

JUDGEMENT

(1.) This is an appeal under the Letters Patent from a decision of Shearer J. sitting singly. The appeal is by defendants 1st party. The suit was brought upon a mortgage created in 1927 by the appellants in favour of one Chilu Rai. Defendant 4 was Chilu's widow, and defendant 3, the widow of his son. The plaintiff is an assignee from defendant 3. The suit was decreed by the learned Munsif and the learned Subordinate Judge dismissed the first appeal.

(2.) It is necessary for our present purposes only to consider two of the defences taken. The defendants first party claimed that the mortgage had been redeemed by payment of the full amount to defendant 4. The learned Subordinate Judge held that this payment had in fact been made, but it could not operate as a discharge as the right to realise the debt had passed from Chilu to his son, and thence to defendant 3, and thereafter to the plaintiff. Therefore, the payment could not be recognised by the Court.

(3.) The second point to be noticed is that it was alleged that the mortgage was not valid because the document had not been duly attested. There were two attesting witnesses, Mathura Rai and Damar Rai. Mathura Rai (deceased) had signed for himself and had also signed on behalf of Damar, the latter not having even affixed his mark. The learned Subordinate Judge held that the signature of Damar made on his behalf, at his instance, and in his presence by Mathura was good signature, and the mortgage was, therefore, valid. This is the sole point which was raised before Shearer J. in second appeal. That learned Judge had dealt with the matter elaborately, and, as I am in complete agreement with his views, it is unnecessary to add much to what he has said. The definition of the word "attested" was inserted in Section 3, T. P. Act, by the Transfer of Property (Amendment) Act (XXVII [27] of 1926), and was further amended by the insertion of the words "and shall be deemed always to have meant" by the Repealing and Amending Act, 1927, to show that the definition had retrospective effect. The definition was made in the same words as had been used in Section 63, Succession Act (originally Section 50). In Fernandez v. Alive, 3 Bom. 382, it had been held in regard to Section 50, Succession Act, that it was necessary for the validity of a will that the actual signature, as distinguished from a mere mark, of at least two witnesses Should appear on the face of the will. This decision was followed by the Calcutta High Court in Nitye Gopal v. Nagendra Nath, 11 Cal. 429. But obviously other considerations arise with regard to the Transfer of Property Act. One is this. Before the definition of "attested" in the Transfer of Property Act, it had been held, and was recognised as good law, that a signature might be validly made by the pen of someone else provided it was done at the instance of the attesting witness, and in his presence. On this point reference may be made to Sasi Bhusan Pal v. Chandra Peshkar, 33 Cal. 861 : (4 C. L. J. 41) where the question was fully examined. Now, if the intention of the Legislature in 1926 was to alter the position, it is highly unlikely that the definition would have been made retrospective, as thereby large numbers of existing titles would have been upset, and large numbers of deeds validly attested in accordance with the previous view would become invalid. This suggests that there was no intention to alter the law in this respect, but rather to define and clarify it. The question in regard to the words "signed by the mortgagor" an Section 59, T. P. Act, was exhaustively considered fey a Full Bench of five Judges in the Allahabad High Court in Deo Narain Rai v. Kukur Bind, 24 ALL. 319 : (1902 A.W.N. 127 F.B.). Stanley C.J. considered the whole position including that under the English law and held that the word "signed" did not mean "personally autographed" unless there was some clear provision in the statute under consideration so providing. "There was no such provision in the Transfer of Property Act. In Section 59, the word "signed" was used without more. The same remarks apply to the definition of "attested" in Section 3. Here also the wording is, "each of whom has signed the instrument in the presence of the executant." I cannot usefully add to the reasoning of "Stanley C. J., which may be referred to.