ABINASH CHANDRA BIDYANIDHI BHATTACHARJEE Vs. DASARATH MALO

JUDGEMENT

(1.) In this case, the plaintiff brought his suit upon a mortgage bond. The Munsif decreed the suit for the full amount holding that the execution of the bond had been proved and holding also as regards defendant 2 (who was interested because subsequently to the mortgage bond he had purchased a tin hut which was part of the mortgaged subjects) that the plaintiff's claim prevailed against the claim of the defendant 2. Defendant 2's case was that he had purchased the tin hut not from the mortgagor but from another. However, the Munsif decreed the suit both as regards the tin hut and the land. So far as defendant 1 is concerned, he did not appear at the trial to contest the suit. The contest was between the plaintiff and defendant 2 throughout. Defendant 2 appealed to the lower appellate Court and the first ground he took was that this mortgage was invalid because it had not been properly attested as required by law. On that issue, the learned Subordinate Judge of Dacca found for the appellant and held that the mortgage bond was not attested as required by law.

(2.) Now, when we come to look into the matter, we find that there are two people who are put forward as attesting witnesses. As to one, there can be no doubt at all because he was a person who was present at the time of the execution and who put his name down on the instrument to authenticate its execution. As regards the other, the position is this : that man was, in fact, the scribe or the person who wrote the document out. He put his name to a statement in the margin to the effect that he had read the document out to the executant and also that he had put in certain alterations at the executant's desire. This statement he affirmed with his signature and it is reasonably clear that he put his signature down for that purpose before the document was executed at all. There is, however, another part of the document on which the same man's signature appears. Underneath the word "scribe" the man has put his name. It is not a case where a person has put his name with the word scribe" after it by way of extra information. It is a case where the man has put his name under the heading "scribe." The question is whether, in these circumstances, this man is an attesting witness so as to satisfy the requirements of the law. The appellant says that the trial Court is to go into the evidence to find out from the oral evidence of the man if he is available--whether or not he put his name down with the object of attesting the document. It is contended also that it does not matter for what purpose that signature was put down and that, as a matter of law, it is a good attestation.

(3.) That contention is based upon certain cases of this Court. The first case that is relied upon is the ease of Raj Narayan Ghose V/s. Abdur Rahim [1901] 5 C. W. N. 454 being a decision of Harrington, J. In that case, the document is not well described in the report ; but it is said that the plaintiff called a person who was described in the deed as the writer of the mortgage and the learned Judge said that he was of opinion that a person who was present and witnessed the execution of the deed and whose name appeared on the document was a competent witness to prove the execution of the deed. In other words, he held that the person was a good attesting witness if he was present and witnessed the execution and his name appeared on the document at all for whatever purpose and in whatever manner. Whether the decision on the particular document before the Court was right or wrong, I have no materials before me to say. But it does appear to me that the learned Judge's exposition of the law is somewhat too wide. The next case relied upon is the case of Dinomoyee Debi V/s. Bon Behary Kapur [1903] 7 C.W.N. 160. That was a case of a woman who executed a document by making her mark and underneath her mark was written her name "by the pen of so and so." These words were written in the ordinary way of "bakalam" signature as written in India, and the Court held that the person who wrote down the statement that the mark was the lady's mark and the statement that her name was written by his pen was an attesting witness. That is a very different case from the present case and from the case before Harrington, J. and I have no doubt that that decision was perfectly right because the man had put his name down on the document by way of saying that the lady had executed is his presence. The next case is the case of Jagannath Khan V/s. Bajrang Das A.I.R. 1921 Cal. 208. There again the document and the facts are not too clear. But it would seem that the name of the writer--the name of the witness in question was put somehow upon the instrument but apparently only for the purpose of saying that he was the writer of the bond ; and the learned Judges there differing from certain decisions of the Allahabad and the Patna High Courts and proceeding upon the two cases which I have mentioned took the view that a person who was present and witnessed the execution of the deed and whose name appeared on the document though he was therein described merely as the writer of the deed was a competent witness.