DEO NARAIN RAI Vs. KUKUR BIND

JUDGEMENT

(1.) The question raised in this appeal is a narrow one, but it is none the less very important. It is whether or not, having regard to the provisions of Section 59 of the Transfer of Property Act, 1882, a mortgage to be effective must bear either the autograph signature of the mortgagor or his mark. The facts of the case are simple and undisputed. On the 25 of August, 1896, one Kukur Bind borrowed a sum of Rs. 381 from the plaintiffs on the security of a mortgage, which provided that the interest on the mortgage-debt should be payable annually, and in default of payment of interest the mortgagee should be entitled to possession of the mortgaged property. Default was made in payment of the second instalment of interest, and in consequence the plaintiffs instituted this suit for possession of the mortgaged property. The mortgagor is illiterate, and the signature to the mortgage was made by the scribe of the deed by the direction and in the presence of the mortgagor. The following are the words which were written by the scribe in signing the deed on behalf of the mortgagor: " Signed by Kukur Bind alias Umar Bind; the deed of simple mortgage is correct; by the pen of Shiunandan Lal, patwari." The deed was duly registered on the 28 of August 1896, when Kukur Bind appeared before the Registrar and acknowledged the due execution of the deed. The Court of first instance dismissed the suit on the ground that the mortgage had not been executed in accordance with the provisions of Section 59 of the Transfer of Property Act, relying on the decision in the case of Moti Begam V/s. Zorawar Singh Weekly Notes 1899 p. 196. On appeal the lower appellate Court upheld the decision of the Munsif. Hence the present appeal.

(2.) The words of Section 59 which bear upon the question run as follows: "Where the principal money secured is one hundred rupees or upwards a mortgage can be effected only by a registered instrument signed by the mortgagor and attested by at least two, witnesses." In the decision to which I have referred it was held by a Bench of this Court that "where a mortgage was signed on behalf of a mortgagor, who was illiterate, by the scribe of the document not being specially empowered in this behalf, such a signature was not sufficient within the meaning of the section to validate the mortgage." One of the learned Judges who decided this case, my brother Aikman, held that "in the case of a mortgage the law requires the personal signature of the mortgagor," while my brother Knox held that "none but the mortgagor or some one vested by the mortgagor by deed in writing with full power to act as and for the mortgagor can execute such a document." It is contended on behalf of the appellants that this decision cannot be supported, that in accordance with the maxim qui per alium facit per se ipsum facere videtur (which I may translate, "he who does an act through another in the eyes of the law does it himself"), or, as the maxim is more familiarly known, qui facit per alium facit per se, signature by the authorized agent of a mortgagor is sufficient. This is an old and well-recognised maxim, and, as it seems to me, ought to prevail, unless the Legislature makes it reasonably clear that its operation was intended to be excluded in the interpretation of a Statute. At common law where a person authorizes another to sign for him, the signature of the person so signing is the signature of the person authorizing it. But there are, no doubt, cases in which a different construction must be put on particular Statutes, as in the case of the Statute of Frauds. Such was the case of Hyde V/s. Johnson (1836) 2 Bing. N.C. 776 upon which reliance was placed by the learned Judges who decided the case of Moti Begam V/s. Zorawar Singh. It seems to me not to be open to argument that if there were nothing to be found in the other provisions of the Transfer of Property Act to exclude the operation of the common law rule, a signature by an agent acting under the authority of the mortgagor would satisfy the requirements of Section 59 of the Act. A section, however, has been discovered which, it is contended, has this effect, and that is Section 123. Section 123 is the second section of Chapter VII of the Act, which deals, not with mortgages at all, but with a different subject-matter, namely, gifts of movable and immovable property. We have not been pointed out, nor am I aware of any words in any of the sections of Chapter IV of the Act, which deals with mortgages of immovable property and charges, which throw any light upon the provisions of Section 59. Section 123 runs as follows: "For the purpose of making a gift of immovable property the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses." It is contended that, inasmuch as the Legislature used in this section the words "on behalf of" and did not use these words in Section 59, the difference of language must be prima facie regarded as indicative of intended difference of meaning. In his judgment in the case to which I have referred, my brother Aikman observes: "The difference in the language of these two sections is striking. In the case of a gift the instrument must be signed by or on behalf of the donor. In the case of a mortgage, like the one in suit, the instrument must be signed {by the mortgagor Why the Legislature made this distinction I am unable" he says "to understand; but the distinction is there and I am reluctantly forced to the conclusion that in the case of a mortgage the law requires the personal signature of the mortgagor. In my opinion," he goes on to say, "the case relied on by the appellant Hyde V/s. Johnson (1836) 2 Bing. N.C. 776 is in point. To hold that the Legislature meant the same thing in Section 59 as in Section 123 would, in my judgment, be opposed to the ordinary canons of construction." Now let me see what is the language of Section 123 to which so much weight has been attached by my learned brother. It provides that a transfer of immovable property must be effected by a registered instrument signed by or on behalf of the donor. Do these words "by or on behalf of the donor" accurately express the meaning of the Legislature, or are they a loose form of expression? What was intended by the Legislature is that the instrument should be signed either by the donor or by an agent authorized by him in that behalf, but the section does not say so. An instrument may be signed on behalf of a party without his authority. It was certainly not the intention of the Legislature that such a signature should be effectual. The language is clearly elliptical. It is not accurate draughtsmanship. We must supply after or in addition to the words "on behalf of" some such-words as "by an agent duly authorized in that behalf." The section otherwise does not express the intention of the Legislature. Are we justified then in placing any reliance upon the use of the loose and vague words "on behalf of" contained in Section 123--a section dealing with gifts of property-to elucidate the meaning of the plain and intelligible language used in Section 59 of the Act--a section which falls within the part of-the Act which deals with a different subject- matter, namely, mortgages? I am of opinion, with all deference to the views of my brother Aikman, that we cannot safely adopt such a course, and that it would not be consistent with the canons of construction to do so. Sir George Jessel in Spencer V/s. Metropolitan Board of Works (1832) L.R. 22 Ch. D. 142 at p. 142 observed to the effect that we ought to-find out the meaning of a section of an Act, if we can, from the section itself. If we can do that, we need not have recourse to other sections of the Act. If we cannot, then, he says, "I agree with the principle which was laid down by Mr. Justice Chitty that, as a general rule, a word is to be considered as used throughout an Act of Parliament in the same sense, and that therefore we may look through the other sections to see in what sense the word is there used." In the case of Hyde V/s. Johnson, upon which so much reliance has been placed, the Court was considering one of a series of enactments which made a distinction between the signing of a document by a party personally and the signing by an agent; and it was therefore considered that where signature by an agent was not mentioned the Act intended that the signature should be an autograph signature. The Act which we are considering is not of that nature. The Statute in that case required an acknowledgment to be signed "by the party chargeable thereby." The mischief aimed at by the Statute was to exclude temptation to perjury in the proof of agency, and it was contended in that case that if the signature of an agent were admitted, parol evidence also must be admitted to prove the agent's authority, and that then all the inconvenience would be reproduced which the Statute was passed to obviate. Moreover, in that case the 7 Section of the Statute, 9 Geo. IV, Cap. XIV, under which the controversy arose, recites the 17 Section of the Statute of Frauds, and the Court held that the Legislature must therefore have had that section in view at the very time of passing the Statute, and therefore must have intended the distinction between writings signed by a party or signed by his agent. A similar case is that of Budoobhoosun Bose V/s. Enaet Moonshee (1867) 8 W.R. 1 and also that of Luchmee Buxsh Roy V/s. Runjeet Ram Panday (1873) 20 W.R. 375 in which last-mentioned case it was held by their Lordships of the Privy Council that the acknowledgment referred to in the Limitation Act, Act No. XIV of 1859, Section I (Clause 15) must bear the signature of the mortgagee himself, and that the signature of an agent would not be sufficient. In that case their Lordships refer to the case of Hyde V/s. Johnson and to the language used by Chief Justice Tindal in his judgment, and then observe: "It has been said that this case ought to be decided upon an equitable construction and not upon the strict words of the Statute; but their Lordships think Statutes of limitation, like all others, ought to receive such a construction as the language in its plain meaning imports. Statutes of limitation are in their nature strict and inflexible enactments. The object of the Legislature in passing them is to quiet long possession and to extinguish stale demands. Such legislation has been advisedly adopted in India as in this country. Their Lordships think that in construing these Statutes the ordinary rules of interpretation must prevail." I may observe that if such legislation was advisedly adopted in India, it was not followed in the amending Act. The Legislature altered the law in the subsequent Act, Act No. IX of 1871, and also in the Limitation Act, Act No. XV of 1877, whereby it is provided that the expression "signed by the party" in Section 19 means "signed either personally or by an agent duly authorized in this behalf." But let me assume that we arc entitled to call Section 123 in aid of the interpretation of Section 59. What light does it throw? As I have said, the signature of a deed of gift of immovable property made on behalf of a donor, but without his authority, clearly would have no efficacy. The signature to be effectual must be by a duly authorized agent. Now the Statute says nothing about a duly authorized agent; no doubt because the Legislature recognised the existence of the rule which enables A party to sign through the instrumentality of an agent, and by virtue of this rule a donor could authorize another to sign for him. Therefore the rule in question was manifestly before the minds of the framers of the Act. If the rule was before the minds of the framer of the Act, it appears to me obvious that if the intention had been to exclude its operation in the case of a mortgagor, it would have expressed that intention by requiring signature by the mortgagor personally, or with his own hand. The Legislature has however, abstained from doing this , and therefore, as it seems to me, so far from there being anything in the Act to show an intention to exclude the rule, the reasonable inference to be drawn from the language of the Act is quite the contrary. If in Section 123 the words "by his agent duly authorized in that behalf" had been inserted, I could better have understood the argument which has been advanced on behalf of the respondents. In the case of The Queen V/s. The Justices of Kent (1873) L.R. 8 Q.B. 305 the question of signature by an agent was considered. In that case the Commissioners of the Rother Levels made a rate of certain sums per acre on all lands lying within their jurisdiction, and the lands of one Wells, amongst others, were so rated. Wells, appealed against the rate to the Quarter Sessions. According to the provisions of Section 1 of the Statute 12 and 13 Vict., Cap. XLV, under which the appeal was presented, a notice of appeal to a Quarter Sessions "should be in writing signed by the person or persons giving the same, or by his, her or their attorney, on his, her or their behalf." The notice of appeal in that case was signed in Wells name by the clerk to his attorney by Wells authority. It was objected on the part of the Commissioners that the notice of appeal was insufficient, as the signature of the appellant was not in his handwriting. The Quarter Sessions held that the notice of appeal was bad and dismissed the appeal. Upon a rule calling upon the Justices of Kent to show cause why a mandamus should not issue commanding them to cause to be heard and determined the appeal of Wells on the merits, the Court of Queen's Bench, consisting of Blackburn, Quain and Archibald, JJ., held that a notice of appeal signed in the appellants name by the clerk, to his attorney with the appellant's authority was sufficient. Blackburn, J., in his judgment says: "No doubt at common law where a person authorizes another to sign for him, the signature of the person so signing is the signature of the person authorizing it; nevertheless there may be cases in which a statute may require a personal signature." He then refers to the case of Hyde V/s. Johnson as one coming within the purview of a Statute which requires personal signature and referring to the case before the Court, observes: "Here the clerk having full authority from the appellant signed for him, and this is a sufficient signing at common law. I see nothing in this Statute that makes a personal signature necessary, and the rule must therefore be made absolute." Quain, J., says: "I am of the same opinion. We ought not to restrict the common law rule qui facit per alium facit per se unless the statute makes a personal signature indispensable." Archibald, J., says: "I think this case comes within the common law rule qui facit per alium faeit per se, and there is nothing in the Statute to qualify the operation of that maxim." In the case of Ex parte Wallace (1884) L.R. 14 Q.B.D. 22 a similar question arose on the Bankruptcy Rules of 1883, Rule 125 provides that "a creditor's petition shall be in form No. 10 in the Appendix with such variations as circumstances may require." Form No. 10 provides that "the petition shall be signed by the petitioner, and that his signature shall be attested by a witness," and the attestation clause contains the words "signed by the petitioner in my presence." In this case a petition in bankruptcy was presented by one William Richards against one Wallace, who carried on business in the city of London. The petition was signed "William Richards by his attorney Thomas Picton Richards." The signature was attested by a witness, and the attestation clause was as follows: "Signed by the petitioner by his attorney Thomas Picton Richards in my presence." The objection was taken by the debtor to the petition that it was not duly signed as required by Rule 125. The Registrar overruled the objection. Whereupon the debtor appealed. It was held by the Court of appeal, consisting of Baggallay, Bowen and Fry, L. JJ., that the petition was properly signed, that a bankruptcy petition by a creditor might be signed on his behalf by his duly constituted attorney. Baggallay, L.J., in the course of his judgment, remarks: "The next question is, whether the signature of a bankruptcy petition by an attorney on behalf of the petitioner is a sufficient signature. I can entertain no doubt whatever that it is, provided that the power of attorney authorizes the signature," Again, in the case of In re Whitley Partners Limited (1886) L.R. 32 Ch. D. 337, it was held that Section 11 of the Companies Act, 1862, was complied with by the signature of an agent. Section 6 of that Act provides that "any seven or more persons associated for any lawful purpose may, by subscribing their names to a memorandum of association, and otherwise complying with the requisitions of this Act in respect of registration, form an incorporated company" and by Section 11 it is provided that the memorandum of association shall be "signed by each subscriber in the presence of and attested by one witness at least." It was contended that the Statute required the personal signature of each subscriber, and Hyde V/s. Johnson was relied on in support of this contention; but the Court, consisting of Cotton, Bowen and Fry, L. JJ., unanimously held that, there being nothing in the Company's Act, 1862, to show that the Legislature intended anything special as to the mode of signature of the memorandum, the ordinary rule applied that signature by an agent is sufficient. Lord Justice Bowen says in the course of his judgment as regards the question of law: "It is contended by the appellant that it is not sufficient for a man to sign the memorandum of association by an agent, but that he must sign it himself. In every case where an Act requires a signature, it is a pure question of construction on the terms of the particular Act whether its words are satisfied by signature by an agent. In some cases on some Acts the Courts have come to the conclusion that the personal signature was required. In other cases on other Acts they have held that signature by an agent was sufficient." Commenting upon Hyde V/s. Johnson he says: "Hyde V/s. Johnson was decided on the ground that Lord Tenterden's Act was to be read along with the Statute of Frauds, which expressly refers to the signature by an agent, and that a clause which contained no reference to an agent was therefore to be held to require personal signature. In the present Statute there is nothing in the way in which the memorandum of association is dealt with to show that the Legislature intended anything special as to the mode of signature."

(3.) It appears to me upon these authorities to be indisputable that if there is no clear indication that the Legislature intended that the signature shall be an autograph signature, the common law rule qui facit per alium facit per se should be applied. If the Legislature in this case had intended that an illiterate mortgagor in this country should not enjoy the privilege of employing an amanuensis to sign his name, it seems to me that it would have expressed its intention by the introduction of some such words in the section after the word "signed" as "personally" or "with his own hand." The introduction of the loose words to which I have referred in Section 123 appears to me to furnish totally inadequate grounds for the conclusion that the Legislature intended to exclude the application of the rule to Section 59. In an unreported case in this High Court Khunni Led V/s. Jhao Lal S.A. No. 48 of 1895 a Bench of this Court, consisting of my brothers Knox and Burkitt, decided this very question, and held that the signing of a mortgage on behalf of an illiterate person by the scribe of the deed at the instance of the mortgagor was a good signature within the meaning of Section 59. The learned Judges in their judgment say that "it is true that the manual act of signing was effected in this case by the hand of another, but the lady by her acts has acknowledged that the act was done with her consent and for her, and in this way is her act. We are unable to draw the distinction the Judge does between the words contained in Section 59 and those contained in Section 123 of Act No. IV of 1882."