DEBENDRA CHANDRA ROY Vs. BEHARI LAL MUKHERJI

JUDGEMENT

(1.) The present appeal arises out of a suit brought by the plaintiffs-respondents to recover a sum of Rs. 522-8 on a registered mortgage-bond. The bond in question purported to have been executed by the defendants Nos. 1 and 2. In the Court of first instance, an objection was taken to the bond on the ground that it did not create a valid mortgage as there was only one attesting witness to the document. " It appears that the defendant No. 2 wrote the bond and that, after writing it, he signed his name as an executant of the bond and afterwards as the writer and as one of the attesting witnesses. The Court of first instance held that this objection was valid and that the document could not have effect as a mortgage. The Munsif, however, was of opinion that, under the provisions of Section 100 of the Transfer of Property Act, the bond could take effect as creating a charge on the property covered by it for the realization of the debt and he, therefore, gave a decree to the plaintiffs for the recovery of the amount claimed by sale of the property, on which he held a charge had been created.

(2.) The defendants appealed to the lower Appellate Court but the plaintiffs did not file a cross-appeal nor did they put in any cross-objection. On the hearing of the appeal before the lower Appellate Court, however, that Court, after first arriving at a conclusion that the Munsif was wrong in holding that any charge could be held to be created under the provisions of Section 100 of the Transfer of Property Act and after setting aside the finding of the Munsif on that ground, look up the question which had, in fact, been decided against the plaintiffs and in respect of which there was no appeal to that Court and decided that though the mortgage- bond could not be taken to be valid and operative as against both the executants, still it could be taken as a mortgage-band binding, so far as one-half of the amount of the mortgage-debt was concerned, against the defendant No. 1 because it was possible to treat the defendant No. 2 not as one of the executants of the bond but as the writer and one of the attesting witnesses to it. On that finding, the lower Appellate Court gave the plaintiffs a decree in modification of the decree of the Court of first instance for the recovery of one-half of the mortgage-money by sale of one-half of mortgaged property.

(3.) The defendant No. 1 has appealed to this Court and, in support of the appeal, it has been argued, first, that the lower Appellate Court was not justified in re opening, in appeal the question as to the validity of the document as a mortgage, the Court of first in-stance having decided against its validity and there having been no appeal against that finding of the first Court and, secondly, that the lower Appellate Court was entirely wrong in the view which it took with regard to that document and in holding that it could be treated as a valid mortgage against the defendant No. 1 by regarding the defendant No. 2, one of the executants, not as an executant but as the writer and one of the attesting witnesses to the document. In our opinion, both these grounds are sound. The Subordinate Judge certainly ought not to have re- opened the question which had been decided by the Court of first instance and in respect of which there was no appeal. We also hold that the view which the learned Judge has taken with regard to the document is incorrect. The authorities are clear that a party to a document cannot, under any circumstances, be allowed to sign a document as an attesting witness and a person, who has once signed as an executant and as in the present case as one of the persons who were borrowing the money on the bond cannot be allowed to have his position altered from an executant of the bond to that of a witness for the purpose of rendering the document valid as a mortgage against the other executant. The authorities in support of this view are to be found in the cases of Seal v. Claridge 7 Q.B.D. 516 at p. 519 : 50 L.J.Q.B. 316 : 44 L.T. 501 : 29 W.R. 598; Prannath Sarkar v. Jadunath Saha 32 C. 729 : 9 C.W.N. 697 and Royzuddi Sheikh v. Kalinath Mookerjee 33 C. 985 : 4 C.L.J. 219. Disagreeing, therefore, with the finding of the lower Appellate Court, we hold that the document on which the suit was brought cannot be held to be valid as against the defendant No. 1 as mortgage. The lower Appellate Court held, and we think rightly, that the Court of first instance was wrong in holding that any charge on the property described in the document could be held to be created by the document. Section 100 of the Transfer of Property Act expressly states that where immoveable property of one person is by act of parties or by operation of law made security for the payment of money to another and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and, in this case, there can be no doubt that the document, if valid, amounted to a mortgage. In these circumstances, it is impossible to hold that any charge by it was created on the property. This is indeed the view which was taken by this Court in the case of Royzuddi Sheikh v. Kalinath Mookerjee 33 C. 985 : 4 C.L.J. 219. The only benefit which the plaintiffs could derive from the document would be to bring a suit against the presorts who had executed it on the basis of the personal covenant contained in the bond. This is in accordance with the view taken by this Court in the case of Tofaluddi Peada v. Mahar Ali Shaha 26 C. 78. Such a suit, however, ought to have been brought within three years from the date when the money was borrowed and, as in the present case, it appears that the present suit was not brought till more than five years after the execution of the document and the date when the loan was taken, the plaintiff s claim to recover on the personal covenant is clearly barred. The result, therefore, is that we decree the appeal, set aside the judgment and decree of the lower Appellate Court and direct that the plaintiff s suit is dismissed with costs in all Courts.