NAWAB SARURJIGAR BEGAM Vs. BARODA KANT MITTER

JUDGEMENT

(1.) This is an appeal, on behalf of the second defendant in a mortgage suit. The mortgage security which the plaintiff-respondent seeks to enforce, is alleged to have been executed in his favour by the first two defendants on the 28 May 1898. The principal sum advanced, is stated to have been Rs. 5,000 which carried interest at the rate of 12 per cent, per annum, with quarterly rests, and was repayable on the 28 November 1898. The present action was commenced on the 11 March 1905 upon the allegation that, nothing had been paid towards the satisfaction of the mortgage debt except four sums paid on account of interest namely: Rs. 150 on the 20 September 1898, Rs. 200 on the 16 February 1899, Rs. 400 on the 5th February 1901, and Rs. 600 on the 11 March 1902. The parties joined as defendants, were the mortgagors, (the first two defendants), a subsequent mortgagee, the third defendant, who claimed to have taken a security from the mortgagors on the 6 October 1902, and the fourth defendant a third encumbrancer, who had taken a security from the first defendant, mortgagor, on the 28 September 1903. The first defendant admitted execution of the bond and receipt of the consideration. The second defendant, her sister, denied that she had taken the loan, alleged that the mortgage-deed was invalid for various reasons, and farther pleaded the bar of limitation. She also denied the mortgage in favour of the third defendant. The third defendant, the second mortgagee from both the mortgagors, prayed that provision might be made in the decree for the satisfaction of his debt after the claim of the plaintiff had been satisfied in full, from the sale proceeds of the mortgaged premises. The fourth defendant, the third mortgagee from one of the mortgagors, made a similar prayer, but he put the plaintiff to the proof of his claim. On these pleadings, four issues were raised, the first of which covered the question of the genuineness of the mortgage transactions, so far as the second defendant was concerned, in favour of the plaintiff and the third defendant. The second issue related to the question of the validity of the mortgages, as affected by the omission of the mortgagors who were the administrators of the estate of their father, to obtain the sanction of the Court which had granted Letters of Administration. The third issue related to the question of the payments of interest alleged by the plaintiffs, so as to save his claim for a personal decree on the basis of his mortgage. The fourth issue expressly raised the question of limitation. The Subordinate Judge found upon the evidence that the several mortgage-deeds were genuine, that they had been executed by the defendants mortgagors and duly attested by witnesses, that the principal sums had been advanced as recited in the deeds, and that the payments alleged to have been made on account of interest had been made on behalf of both the mortgagors, He overruled the objection based on the ground of the failure of the mortgagors to obtain the sanction of the Court by which they had been appointed administrators inasmuch as they acted in their capacity as the heiresses of their father, and not as administrators of his estate. As regards the alleged payments of interest, the Subordinate Judge found, that the payments had been made through the husband pf the first defendant on behalf of his wife," as also of his sister-in-law. In this view, the Subordinate Judge decreed the claim, and directed that in default of payment to the plaintiff of the judgment-debt within the period of six months specified in the decree, the mortgaged properties were to be sold, and out of the sale proceeds, the plaintiff was to-be paid first, then the third defendant, out of the surplus left, and one-half of the balance, if any, was to be applied in satisfaction of the claim of the fourth defendant. The second defendant alone has appealed against this decree, and on her behalf the decision of the Subordinate Judge has been assailed substantially on four grounds namely: first, that the mortgage-deeds executed in favour of the plaintiff as also of the third defendant were not shown to have been duly attested and were consequently inoperative as mortgage securities: secondly, that the mortgage-deeds were not proved to have been executed by her under such circumstances as would make them binding upon a purdanashin lady; that the deeds were not read over to her and that the effect of the covenant for payment of compound interest, was not explained to her; thirdly, that the payments alleged to have been made, were either not actually made at all, or if made, were not made by an agent duly authorized by her in this behalf, and fourthly, that the decree as framed is erroneous, and not in accordance with the provisions of the Transfer of Property Act, which does not contemplate the payment of the dues of subsequent encumbrancer in an action by a prior encumbrancer to enforce his own security.

(2.) In support of the first ground urged on behalf of the appellant, it has been contended that under Section 59 of the Transfer of Property Act, the mortgage instrument to be operative as such, must be attested by at least two witnesses, that an attestation by a witness who receives an acknowledgment of execution from the mortgagor is not sufficient, and that in order to effect a valid attestation, the execution of the instrument must take place in the presence of the witness who sees the execution and affixes his signature in token of this fact. In support of these propositions, reliance has been placed upon the cases of Girindra Nath v. Bijoy Gopal 26 C. 246 : 3 C.W.N. 84 and Abdul Karim V/s. Salimun 27 C. 190. Reference was also made to the cases of Ford V/s. Kettle 9 Q.B.D. 139 : 51 L.J.Q.B. 558 : 46 L.T. 666 : 30 W.R. 741; Raj Narain V/s. Abdur Rahim 5 C.W.N. 454; Dinamoyee Debi V/s. Bon Behari 7 C.W.N. 160 and Sashi Bhusan V/s. Chandan Peshakar 33 C. 861 : 4 C.L.J. 41. In answer to these arguments, it has been contended on behalf of the respondents that the view taken in the cases of Girindra Nath V/s. Bijoy Gopal 26 C. 246 : 3 C.W.N. 84 and Abdul Karim V/s. Salimun 27 C. 190 is erroneous, that the contrary view adopted in Ramji Haribhai V/s. Bei Parvati 27 B. 91 and Ganga Dei V/s. Shiam Sundar 26 A. 69 ought to be adopted, that in any event, on the analogy of cases relating to the attestation of Wills, it is not necessary to prove that the attesting witness saw the execution of the deed, but that it is sufficient compliance with the law, if the document is executed in his presence; and finally, that when the document is jointly executed by more than one person in the presence of each other, each executants may be treated as an attesting witness in respect of the signature of every other executants.

(3.) Before we deal with the question of law raised, it is necessary to ascertain precisely the circumstances under which the mortgage-deeds, in controversy in the present litigation, were executed by the first two defendants. From the evidence it appears that the mortgagors, Nawab Murtaza Begum and Nawab Sarurjigar Begum were daughters of Prince Sir Jahan Kader Mirza, nephew and son-in-law of the late King of Oudh. Their father died on the 16th April 1896. On the 15 September 1896, they took out Letters of Administration of the estate of their father, from this Court in its testamentary and interstate jurisdiction. The two sisters at that time and for several years afterwards, lived together in amity, in their paternal house, and there is evidence to show that the younger sister, the second defendant, regarded her eldest sister almost as her mother. Some time after the marriage of the eldest sister in 1887, the younger sister had been married on the 7 February 1891. She lived with her husband for about 2 months, and then, at the request of her father, resided in his palace. After the death of her father, she lived with her husband for a short time, but in February 1898, there were differences between them, due it is alleged, to the interference of the husband of the eldest sister. The result was a suit by the husband of the second sister for restitution of conjugal rights. This was commenced in 1899, and was decided by the Subordinate Judge on the 20th June 1900. It is fairly clear upon the evidence, that at the time of the execution of the mortgage in favour of the plaintiff on the 28 May 1898, the two sisters lived together in peace and amity and there was entire mutual confidence between them. There is also no room for reasonable doubt that the terms between the sisters continued to be the same, up to the time of the execution of the second mortgage in favour of the third defendant on the 6th October 1902. So far, therefore, as the suggestion is made that the second defendant had no independent advice at the time of these transactions, there is no solid foundation for it. She had the advice of her sister, a literate lady of considerable intelligence, whose interests were carefully watched by her husband Prince Mahamad Mukim. It has indeed been suggested, that the second defendant was betrayed by her eldest sister, that she never received, any portion of the mortgage-money, that she took no part in the mortgage transactions, and that in substance, there were elaborate schemes prepared by her sister and her brother-in-law with a view to defraud her. These allegations have, in our opinion, been recklessly made, and have not been established by the evidence on the record. It is further plain, that the two ladies after the death of their father got involved in expensive litigation regarding his estate, and considerable sums were needed to pay the solicitors and to meet the other costs of the litigation. Under these circumstances, we feel no doubt whatever as to the substantial truth of the story of execution of the first and second mortgages, by the two sisters, as told in the Court below by the witnesses on behalf of the plaintiff and the third defendant. The first defendant was examined on commission, at considerable length, and upon her testimony which we see no reason whatever to distrust, it is proved that the two sisters executed jointly, the two mortgage bonds, and received the consideration money. The documents were read over and explained to them, and there is no reason to suppose that they did not fully appreciate the meaning and effect thereof. The first defendant admits with perfect frankness, that the transaction was genuine and that she and her sister executed the deeds, on receipt of the consideration, and with full knowledge of their contents. We have also the evidence of Jotindra Nath Bose, a Solicitor of this Court, in whose presence the deeds were executed and he is fully supported by Muhammad Abdul Hossain and the husband of the first defendant, Prinoe Mukim. Under these circumstances, the denial of the second defendant cannot be accepted as trustworthy, and her deposition, recorded at great length by the Commissioner, when closely examined does not produce a favourable impression as to the truth of her allegations. The only question, therefore, which really requires consideration, is whether the two mortgage-deeds were duly attested, as required by Section 59 of the Transfer of Property Act, which provides, that a mortgage, when the principal money secured is Rs. 100, or upwards, may be effected only by a registered instrument, signed by the mortgagor, and attested by at least two witnesses.