HARKISANDAS DHARAMSEY Vs. DWARKADAS GORDHANDAS

JUDGEMENT

(1.) This is a vendor and purchaser summons raising a question whether the defendants have made out a marketable title to certain leasehold property, which by an agreement in writing dated July 21, 1934, the plaintiff agreed to purchase from the defendants and one Tulsidas Valji.

(2.) The title begins in the year 1901 with a mortgage, exhibit A, which was executed by Omar Pir Mahomed, the then owner, on December 21, 1901, in favour of Dossibai Nowroji Gazdar. At the foot of the witness clause the mortgage was signed by Umar Pir Mahomed in the presence of one attesting witness only, and the point is taken that by reason of that fact it is not a valid mortgage. Below that signature and attestation appears a receipt clause whereby the mortgagor on the very same day on which he signed the document admitted the receipt of Rs. 20,000, signing his name below the words " I say received ", and that was witnessed by two persons, one of whom Mr. Rustomji Fardunji Mulla had previously attested the mortgagor's signature to the execution of the document. It is contended on behalf of the defendants that the attestation to this receipt clause is a sufficient attestation to comply with Section 59 of the Transfer of Property Act.

(3.) On the same day, namely, December 21, 1901, as appears from the last page of the mortgage, certain endorsements were made in the office of the Sub-Registrar of Bombay. The first is in these terms :-"Omar Peer Mahomed effecuting party timber-merchant residing at Memon Mohola admits execution, and below that is the signature of the mortgagor. Then comes another endorsement in these terms : " Mr. Sakarlal Jayantilal, clerk to Messrs. Mulla and Mulla, Solicitors, residing at Bhooleshwar and known to the Sub-Registrar examined as to identity of the above executant." Below that appears the signature of Sakarlal Jayantilal, and below his signature is the signature at the Sub-Registrar of Bombay. It is contended on behalf of the defendants :hat this is an attestation sufficient to comply with Section 59 of the Transfer of Property Act. The last endorsement on the mortgage is a statement that it was registered on January 3, 1902, and the document is signed by the Sub-registrar to that effect on that date.