UPENDRA CHANDRA BHADRA Vs. HUKUM CHAND DE

JUDGEMENT

(1.) THIS is an appeal by the plaintiff against the decision of the learned Subordinate Judge of Comilla, dated the 23rd August 1916, reversing the decision of the Munsif at Brahmanberia. The plaintiff brought the suit to enforce a simple mortgage. The plaintiff is the heir of the original mortgagee, and the defendant is the heir of the original mortgagor. The learned Judge of the lower Appellate Court has dismissed the suit for the reason, amongst others, that it has not been proved that the document sued upon was executed in the manner required by Section 59 of the Transfer of Property Act. The facts found are these: The original mortgagor was an illiterate man and the document was drawn up by the scribe, one Uma Nath Dutt. The mortgagor not being able to sign his name, the document was executed on his behalf by Uma Nath, and it is found and is supported by an inspection of the mortgage deed that no mark or seal or thumb impression of the mortgagor appears on the mortgage deed. The learned Judge considered that the document had not been attested by two witnesses as required by Section 59 of the Transfer of Property Act, the only persons purporting to sign the document being Uma Nath as the scribe and one witness, Prokash. It is quite clear in the circumstances that Uma Nath having executed the document for and on behalf of the mortgagor was not competent to attest his own signature as an attesting witness even in the view that the subscription of his name as the scribe amounted to attestation within the meaning of Section 59 of the Transfer of Property Act. In that view, only Prokash was the attesting witness. The document having been attested by only one attesting witness was not, therefore, executed in the manner prescribed by Section 59 of the Transfer of Property Act. In my opinion, this case is clearly covered by the observations of the Privy Council in the case of Shama Patter v. Abdul Kadir Ravuthan (1892) I.L.R.35 Mad. 607 ; L.R. 39 I.A. 218. I agree with the conclusion arrived at by the learned Judge of the lower Appellate Court. The present appeal, therefore, fails and must be dismissed with costs. Walmsley, J.

(2.) I agree.