P L M PALANIAPPA CHETTIAR Vs. SRAJAGOPALA PANDARATHAR

JUDGEMENT

(1.) The plaintiff, one Palaniappa Chetti, brings this suit on a mortgage-deed, Ex. A, executed by defendant 1, the Zamindar of Gandarvakottai, on 17 June 1917, for Rs. 10,000. The District Judge has refused a mortgage-decree, but has given a personal decree against defendant 1 for Rs. 2,053-12-3 and interest. The plaintiff appeals and contends: firstly, that Ex. A is a properly executed mortgage-deed and also that the whole of the consideration passed under that document and asks for a decree as prayed for in the plaint. Defendants 3 and 4, who are the contesting respondents, are purchasers of one of the two villages mortgaged under Ex. A, and they contend that the mortgage-deed is not valid as a mortgage and that no consideration passed. So far as the Rs. 2,000 decreed is concerned, they do not contest it as it is payable only by defendant 1 and does not affect their interests.

(2.) The most important point for consideration is whether Ex. A is a valid mortgage. The District Judge has found on the evidence that, although it purports to be attested by three witnesses, only one of these witnesses actually witnessed the execution; whereas he also states that there is evidence that defendant 1 acknowledged execution to one other witness, although he does not specifically state that he believes the evidence of this witness. Assuming that one witness actually witnessed the execution and that the execution was acknowledged to two witnesses, it was contended for the appellant that, under the Amending Act 27 of 1926, 10 of 1927 and 12 of 1927, the document was validly attested as a mortgage. It has been held by the Privy Council that an attesting witness must have actually witnessed the execution and that an acknowledgment made by the executant of execution is not sufficient. Accordingly, the legislature enacted Act 27 of 1926 which amended Section 3, T. P. Act as follows: "Attested" in relation to the instrument means attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument...or has received from the executant a personal acknowledgment of his signature or mark.

(3.) If that Act had retrospective effect the attestation in the present case would be adequate, but it was held by a Full Bench in the Allahabad High Court in Girja Nandan Kalwar v. Hanuman Das Marwar that Act 27 of 1926 had no retrospective effect and this was followed by a Bench of the Calcutta High Court in Nepra V/s. Sajer Pramanik . The same point was considered by the Bombay High Court in Motilal V/s. Karambhai, A.I.R. 1928 Bom. 16, but was not decided on the ground that Act 10 of 1927, which had been passed before the decision in that case, made the definition of "attested" retrospective. The judgment is a very brief one and there is no discussion at all of the effect of Act 10 of 1927, it being remarked that the 1926 Act was merely a case of bad drafting which has now been amended by the 1927 Act so as to run in the ordinary form. A contrary view was held by a single Judge of this Court in Balaji Singh V/s. Gangamma A.I.R. 1927 Mad. 85. However, what we have now to consider is not Act 27 of 1926, but the latest Act 12 of 1927. Under Act 10 of 1927, Act 27 of 1926 was amended as follows: In Section 2, in the definition of the word "attested" after the word "means" the words "and shall be deemed always to have meant" shall be inserted.