JANAKI NATH RAY Vs. ASWINI KUMARI DEVI

JUDGEMENT

(1.) This is an appeal by a puisne mortgagee, defendant No. 2. The Brat defendant executed a mortgage in favour of the plaintiff on the 10th Sravan 1310, The document consisted of three sheets. Tae fasts as found are as follows:

(2.) The mortgagor signed the second sheet in the presence of two witnesses who wrote their names at the foot of the document as having witnessed the signature of the, mortgagor. Then, apparently, some addition was made and a third &h"e& was added including other properties which I under stand are comprised in the security given to the second defendant, the puisne encumbrancer. Then the third sheet was signed by the mortgagor in the presence of the same witnesses who wrote their names on the second sheet. But so far as third sheet is concerned, the names of those witnesses do not appear on that sheet.

(3.) It is contended on behalf of the appellant, that, this being so, the mortgage cannot be enforced so far as regards the properties comprised in the third sheaf; and it is urged that there has been no compliance with Section 59 of the Transfer of Property Act inasmuch as the witnesses are said not to have attested the third sheet. We have been referred to several authorities including the case of Shamu Patter v. Abdul Kadir Rowuthan 16 Ind. Cas. 250 : 35 M. 607 : 23 M.L.J. 321 : 16 C.W.N. 1009 : 12 M.L.T. 338 : (1912) M.W.N. 935 : 10 A.L.J. 259 : 14 Bom. L.R. 1034 : 16 C.L.J. 596 ; 39 I.A. 218 (P.C.).