KADERBHAI ISMAILJI POONAWALLA Vs. FATMABAI GOLAMHUSEIN KABIRA

JUDGEMENT

(1.) This is a suit to enforce a mortgage of Rs. 1,000 dated November 15, 1927. The only defence taken to the suit is that the mortgage is not valid inasmuch as the signature of the mortgagor to the mortgage deed has not been attested by any witness in accordance with the provisions in that behalf prescribed by the Transfer of Property Act (IV of 1882).

(2.) The mortgage deed is of November 15, 1927, and Mr. G.S. Talpade, an advocate of twenty years standing of this Court, has deposed before me that he prepared this document. The document is signed by the mortgagor; then there is a receipt clause for Rs. 1,000, The mortgagor admits having received this amount and has signed this clause. Then to the left of the signature of the mortgagor to the receipt clause there is a typed heading "Witnesses", and under this heading there are the signatures of one Abdeally Mahomedally Gangriwalla and of Mr. G.S. Talpade. Both the advocate, as I have already stated, and Gangriwalla have been called in evidence by Mr. K.T. Desai on behalf of the plaintiff. The evidence given by them is clear and unequivocal and has not been cross-examined upon. The evidence is that the mortgagor signed the document and then signed the receipt clause; this he did in the presence of both Gangriwalla and Talpade. Then Gangriwalla and Talpade signed under the heading "Witnesses" in the presence of the mortgagor. These shortly are the facts; and the question is, on the document as it stands and on the evidence that has been led, whether it can be said that in law there has been due attestation of the execution of this document.

(3.) Now Section 59 of the Transfer of Property Act, 1882, provides that where the principal money secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of title-deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. "Attested" is defined in Section 3, and the portion of the definition relevant for the purposes of this case runs as follows : attested , in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument...and each of whom has signed the instrument in the presence of the executant. There is no doubt on the evidence that each of the two attesting witnesses has seen the executant sign the instrument, nor can there be any doubt on the evidence that each of the attesting witnesses has signed the instrument in the presence of the executant. The sole basis of Mr. Boovariwala's contention for the defendants rests on the fact that the signatures of the attesting witnesses do not appear against the signature of the mortgagor where he has executed the document but that they appear against the signature of the mortgagor where he has signed the receipt clause.