GIRJANANDAN Vs. HANUMANDAS

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for sale on the basis of a mortgage-deed, dated the 3 of April 1917, and presented for registration on the 24 of April 1917. The suit was contested mainly by Defendant No. 2 who held a mortgage, dated the 8 of April 1917, and presented for registration on the 11th of April 1917. The defendant pleaded that the plaintiff's mortgage deed had been antedated and was in fact subsequent to the defendant's mortgage. This point has been conclusively found against the defendant. He further denied the completion and validity of the document. The Court of first instance in a very summary judgment decreed the claim. On appeal the learned District Judge held that the plaintiff's mortgage-deed was defective for want of proper attestation. He held that it was executed in the presence of only one witness Baldeo at one place, and then it was brought to the Court compound where it was attested by the second witness Kamla. Kamla was dead and could not be produced, but Baldeo was examined. The learned Judge felt inclined to assume that Kamla must have attested the document at the request and admission of the mortgagor. He, however, did not feel inclined to re-examine Baldeo because he was of opinion that even if Kamla had signed the document on the acknowledgment of the mortgagor, there was no proper attestation in law and the document created no charge on the property. He accordingly allowed the appeal by the contesting defendant and gave the plaintiff a mere simple money decree against the mortgagor.

(2.) The plaintiff came up in appeal to this Court and a Bench of this Court came to the conclusion that the trial of the suit by the first Court had been unsatisfactory and that inasmuch as the pleas taken by the defendants were not quite express and clear, there was a possibility of the plaintiff having been prejudiced. This Court accordingly on the 23 of March 1926, sent down an issue whether or not the statutory provisions with regard to attestation had been duly complied with. Parties were given the opportunity to produce additional evidence if they chose. The finding now returned by the District Judge confirms what had been anticipated on the former occasion. It is found that Baldeo actually saw the executant sign the document, and attested it at one place and later on at another place Kamla, the second witness, received an acknowledgment of the execution by the executant and then signed it.

(3.) There can be no doubt that under the ruling of their Lordships of the Privy Council in the case of Shamu Pattar V/s. Abdul Kadir Ravuthan [1912] 35 Mad. 607 the signing of the document by Kamla was not a valid attestation. It has however, been pressed before us that the effect of the new Act 27 of 1926, is to make it a valid attestation.