MT MOHAMMADI BIBI Vs. KASHI UPADHYA

JUDGEMENT

(1.) This second appeal arises out of a suit, brought by the plaintiff appellant as puisne mortgagee for redemption of a prior mortgage. The only question for decision in this appeal is whether the lower Courts were right in holding that the suit must fail by reason of the plaintiff not having proved the due execution of his own puisne mortgage deed.

(2.) The plaintiff alleged due execution of this deed on the 31 of May 1920. The defendant prior mortgagee, in his written statement denied that a mortgage deed executed by all the persons stated by the plaintiff had been validly executed. The mortgagors-defendants, admitted due execution. The first question to decide is whether it was necessary for the plaintiff to prove due execution of this deed of the 31 of May 1920 in view of the fact that the defendant mortgagors admitted due execution. It is argued by the appellant that the plaintiff was only concerned with getting his money, and that no issue arose when once the due execution of the deed was admitted by the mortgagors. But this was a suit not only against the mortgagors but primarily against the prior mortgagee. Before the suit could be successful the plaintiff had to prove that he was entitled to redeem the prior mortgage. He had to prove that he was one of the persons described in Section 91 of the Transfer of Property Act. He claimed to be a person having an interest in or charge upon the right to redeem the property: see Clause (b) of Section 91. It was necessary for him to prove this interest in the property before he could demand a right to redeem the first defendant. The fact that the mortgagor-defendants admitted due execution would not relieve the plaintiff of the necessity of proving his right to redeem as against the first defendant. Then it is said that the plaintiff was entitled to show that he had "an interest in the right to redeem the property" within the meaning of Section 91(b) without proving due execution of his mortgage deed. The argument was that although when a deed has been executed, oral evidence may not be given to prove its terms, yet oral evidence is admissible to prove the relation of the parties to the deed to one another. In other words the appellant's counsel maintained that he could prove that the plaintiff was a puisne mortgagee under the deed of 31 of May 1920 without proving that deed itself.

(3.) No doubt there are cases where a certain legal relationship may be proved otherwise than by means of the deed which imposes terms on the parties to that relationship. This cannot, however, be the case here. Section 59 of the Transfer of Property Act enacts that a mortgage securing Rs. 100 or upwards can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Before the relationship of mortgagor and mortgagee can be held proved it is necessary to show that relationship was created by a duly attested deed. In order that the deed should be duly attested it was necessary, at the date when the trial Court's judgment and the lower Court's judgment were delivered, that the attesting witnesses should have actually seen the person executing the deed make, or get made, his signature. This brings us to the second question when due execution of this deed was proved. Both the lower Courts have held that the plaintiff failed to prove that the attesting witnesses were present when the mortgagors signed the deed. We see no reason to differ from this finding, but this case has assumed a new aspect owing to the enactment of the Transfer of Property Amending Act of 1926. This Act received the assent of the Governor- General on the 25 March 1926, and as there is no provision in the Act for its coming into force on any other date, it must be held in virtue of Section 5 of the General Clauses Act to have come into force on that date. This Act is entitled an Act to explain certain provisions of the Transfer of Property Act, and the preamble begins with the words whereas it is expedient to explain certain provisions of the Transfer of Property Act of 1882.