NEPRA Vs. SAJER PRAMANIK

JUDGEMENT

(1.) The suit out of which the present second appeal arises was commenced by the plaintiff, now appellant, before the Munsif of Bogra for enforcing a mortgage bound executed by the defendants, now respondents. The defendants while admitting execution contend that the bond was not properly attested and the plaintiff is not entitled to a mortgage-decree and the claim for personal decree is barred by limitation as it was filed more than six years after due date of payment. The Munsif gave effect to the contentions of the defendant and dismissed the suit. Against the decision of the Munsif an appeal was preferred to the Subordinate Judge of Bogra and the learned Subordinate Judge dismissed the appeal by a judgment dated the 20 of August 1924. Against this decision the present second appeal has been preferred to this Court by the plaintiff and it has been contended on his behalf by the learned Advocate for the appellant that the Courts below were wrong in dismissing the suit on the ground of want of proper attestation of the mortgage-bond seeing that the facts of this case attract the operation of Act 27 of 1926, Transfer of Property Amendment Act.

(2.) In order to examine the validity of the ground taken it is necessary to state the findings of fact arrived at by the Court of Appeal below. The facts found are these : Both the mortgagors are illiterate persons and their names were written out in the bond by the pen of the writer Karuna Kanta who himself subscribed as such under these signatures. At the foot of the document, besides the scribe, Boyetulla and Kheru Bepari are described as attesting witnesses; Boyetulla said that he was called after the execution was over; other attesting witness, viz., Kheru Bepari was not examined and we are told by the learned Advocate on both sides that he is now dead; Thus the attesting witnesses did not see the executants sign the mortgage but merely received an acknowledgment of the execution by the executants and then signed the bond. According to the law which prevailed at the time when the suit was instituted there was no proper attestation within the meaning of Section 59 of the Transfer of Property Act : see the decision of the Judicial Committee in the case of Shamu Patter V/s. Abdul Kadir [1912] 35 Mad. 607. It is said, however, that the effect of that decision has been rendered mugatary by the enactment of Act 27 of 1926, and according to this Act the word "attest" in Section 59 of the Transfer of Property Act would include attestation by a person who has received an anknowledgment of the execution by the executants. The question in controversy really depends on whether a retrospective operation should be given to Act 27 of 1926, for it is conceded that if no retrospective operation could be given to the said Statute then the plaintiff's suit must fail. It is conceded by the learned Advocate for the appellant that ordinarily no retrospective operation should be given to a Statute in matters affecting the substantive right of parties but it is said that this rule has no application if the Act or the Statute is declaratory in form and in support of this contention reliance has been placed on the decision of Attorney-General V/s. Thubald [1890] 24 Q.B.D. 557. The true rule seems to us to have been laid down in the following words of Lord Watson in the case of Young V/s. Adams [1898] A.C. 469: It may be true that the enactments are declaratory in from; but it does not necessarily follow that they are, therefore, retrospective in their operation and were meant to apply to acts which had been completed or to interests which had vested before they became law.

(3.) In In re Pulborough School Board Election (1894) 1 Q.B.D. 725, Lopes, L.J., said: It is a well-recognised principle in the construction of Statutes that they operate only on oases and facts which come into existence after the Statutes were passed, unless a retrospective effect is clearly intended.