RAJAH KOCHERLAKOTA VENKATA JAGANNADHA RAO GARU Vs. MAHARAJAH RAVU VENKATA KUMARA MAHIPATI SURYA RAO BAHADUR ZAMINDAR GARU

JUDGEMENT

(1.) Appeal No. 409 of 1925.--The plaintiff's suit was for a mortgage decree for Rs. 1,88,487-15-6 representing principal and interest alleged to be due under a mortgage deed, Ex. A. This deed arose out of the compromise already dealt with in Appeal No. 446 of 1925. It will be remembered that under that compromise, dated the 29 of November, 1920, one of the properties purchased in the Court sale, viz., Polavaram village with its hamlets was agreed to be retained by the Rajah of Polavaram in consideration of the payment of the sum of Rs. 1,39,986-1- 0 to the plaintiff. The compromise was entered into by the Rajah's adoptive mother. This amount had been deposited in Court by the plaintiff being the balance remaining after the Court sale of the defendant's properties by the plaintiff. Being unable to pay this sum in cash the 1 defendant's adoptive mother as his guardian executed in favour of the plaintiff on the 14 of December, 1920, a bond for that amount repayable with interest at 9 per cent, per annum on the security of the Polavaram village and its hamlets. This bond is Ex. A, Alternatively, the plaintiff claims that he is entitled to a vendor's lien over these properties for the unpaid purchase money and that there is a statutory charge in his favour.

(2.) The Judge in the Court below allowed the suit finding that the suit bond, Ex. A, was a valid one. The 1 defendant, however, contended that Ex. A was not validly attested, because the attestors did not see the executant sign, nor did the executant acknowledge to them in their presence that she had signed it and that she was not present at the attestation. If (1) the attestors did not see the executant sign Ex. A, (2) the executant did not acknowledge to them that she had signed it, and (3) the attestors did not sign the instrument in the presence of the executant, then the instrument has not been properly attested within the meaning of Section 2 of the Transfer of Property (Amendment) Act (XXVII of 1926). Ex. A on the face of it bears the signature of the adoptive mother and guardian of the 1 defendant. The witnesses are B. Venkata Rao and Chengalva Kondayya. Then execution is admitted by Prakka Subramaniam, the agent of the 1 defendant's adoptive mother and guardian. This is witnessed by Kandukuri Subbayya and the before mentioned B. Venkata Rao. There is nothing on the face of the document to show that even the acknowledgment of the execution of the document by Venkata Buchayamraa, the adoptive mother and guardian of the 1 defendant, was made in the presence of these witnesses; but there is a still greater defect because the signature of Venkata Buchayamma upon the evidence clearly was not affixed in the presence of the two attesting witnesses. It must be remembered that this lady was a gosha lady. The evidence of the attesting witnesses is as follows:--P.W. 1, Appayya, the clerk of the 1 defendant and the writer of Ex. A, says that Buchayamma observed gosha, that the attesting witnesses were at her house when the deed was sent inside for her signature and that after its return with her signature they attested. The next witness, Chengalva Kondayya, says that he saw Buchayamma sign it, that Venkata Rao, the other attesting witness, also saw and that after they had seen her sign they attested it. He further states: I do not remember seeing her sign any other document. The documents are sent in by Dasis. We should stand outside the wall so that we should not sec her. The Dasi brings back the papers after signature. I do not know the name of the Dasi who took in Ex. A. She brought it back signed...I attested in the verandah near the window of the Rani's room...I saw Rani sign through the window. It is about breast high from the ground. She was sitting, I stood...Rani sat on the floor when she signed. The window was jhilmil. Two planks were broken. I saw through the broken plank . We both saw through that hole. I suppose Venkata saw.

(3.) The other attesting witness was not called. The evidence of Chengalva Kondayya seems to me to be palpably false. It is obvious that at the trial the necessity for strict compliance with the Transfer of Property (Amendment) Act (XXVII of 1926) had become apparent and so Kondayya's duty in the witness box was to show that both he and the other attesting, witness had actually seen the Rani sign the document, and thus we have the. evidence that both the attesting witnesses looked through the window two planks of which were conveniently broken to enable them to see the Rani who was sitting also most conveniently in a direct line with the broken window planks. This evidence is so improbable and is obviously for the purpose of getting within the provisions of the Transfer of Property (Amendment) Act that it must be rejected. Ex. A, therefore, must be held to be invalid for want of proper attestation.