COLLECTOR OF MIRZAPUR Vs. BHAGWAN PRASAD

JUDGEMENT

(1.) This appeal arises out of a suit for sale on foot of an alleged mortgage. The document is dated the 11th of July, 1900. It purports to have been executed by a number of persons who are stated to have been the adult members of a joint Hindu family. The present suit is brought against all the members of the family. The court below dismissed the plaintiff s suit. Hence the present appeal.

(2.) The appellant has to admit that owing to the fact that the document was attested by one witness only, the deed cannot operate as a mortgage, having regard to the provisions of Section 59 of the Transfer of Property Act, which requires that a mortgage must be attested by at least two witnesses. It is, however, contended that the document, assuming it to have been executed by the persons who purported to do so, amounts to a charge under Section 100 of the Transfer of Property Act and ought to be given effect to as such. It was further contended that in any event the plaintiff ought to have a personal decree against such persons as in fact executed the document.

(3.) The question as to how a mortgage must be attested was recently before their Lordships of the Privy Council in the case of Shamu Patter v. Abdul Kadir Ravuthan (1912) I.L.R., 35 Mad., 607. In that case there were several witnesses to the document, but it appears that these witnesses had signed their names as such merely upon the admission of the executants and had not actually witnessed the signatures of the executants. It was held by the High Court of Madras that such "attestation" did not fulfil the requirements of Section 59. On appeal their Lordships of the Privy Council took the same view and confirmed the decision of the Madras High Court. It is contended that their Lordships did not decide the question raised in the present appeal, namely that the document might be good as a charge although it fell short of fulfilling the necessary conditions of a mortgage. We cannot accept this view. The suit in that case was a suit for sale on an alleged mortgage, just as the present; and the present argument could not well have escaped the attention of their Lordships or of the Madras High Court. As a matter of fact we find from the report, at page 610, that it was contended before their Lordships of the Privy Council that the document must operate as a charge. We must take it that their Lordships considered and repelled the contention that a charge was created. We deem ourselves bound by the ruling of their Lordships in the case to which we have referred.