BUNKATES SEWAK SINGH Vs. RAMA DAS

JUDGEMENT

(1.) THIS is a defendant's appeal arising out of a suit: for sale on a mortgage. The property in suit originally belonged to the family of which the appellant is a member. It was purchased by Babu Madho Das, father of the plaintiffs, in 1883. Under a sale-deed, dated 25 October, 1893, and registered on 27 October, 1893, Babu Madho Das re-sold the property bought by him in 1883 to Rai Ramanuj Sewak Singh, Rai Bunkates Sewak Singh and Rai Sri Newas Singh. The sale-deed sets out the receipt of a portion of the consideration and recites that the vendees and one Rai Rukmini Sewak Singh had executed a deed of mortgage in favour of the son of Babu Madho Das hypothecating the property sold and other property in addition as security for payment of the balance of the consideration money. The suit out of which this appeal has arisen is one for enforcement of this mortgage. It was executed on the 27 October, 1893, and registered on the same day along with the sale-deed. In the deed the appellant Rai Bunkates Sewak Singh is described as a minor under the guardianship of his mother Aeharja Kuar. The document recited that it was executed to secure the payment of the balace of the consideration money due under the sale-deed. It bears the signatures of Rai Rukmini Sewak Singh and Ramanuj Sewak Singh. On the 29 October, 1893, Musammat Acharja Kuar, as guardian of her minor sons including the present appellant, admitted execution of the document before the Sub-Registrar and her signature was affixed to it on her behalf by Ramanuj Sewak Singh. At the same time two witnesses affixed their signatures to the endorsement of the Sub- Registarar as witnesses to the identity of Musammat Acharja Kuar. The mortgagee instituted a suit on the mortgage on 27 June, 1905, impleading Rai Bunkates Sewak Singh the present appellant as a minor. The suit was contested by other defendants but proceeded ex parte against the appellant. It was decreed on the 5 December, 1905, the decree against the appellant being ex-parte. On the 6th July, 1907, the date on which the Court below passed an order absolute for sale, the appellant put in an application to have the decree against him set aside on the ground that he was a major, not a minor, at the time of the institution of the suit and that he had no notice of it. The application was allowed on the 9 September, 1907, and the decree of the 5 December, 1905, was set aside as against him. The suit was then re-tried and the appellant filed a written statement. On the 14th January, 1908, the suit was decreed. The present appeal is against this decree. No arguments have been addressed to us in support of grounds 1 and 2 in the memorandum of appeal. The learned Counsel for the appellant confines himself to the sole ground that the mortgage-deed in suit had not been duly executed in the manner provided by Section 59 of the Transfer of Property Act and was not binding on the defendant-appellant. He rests his contention on the fact that before the proceedings before the Sub-Registrar took place there was no signature or mark of Acharja Kuar On the document in token of the execution by her of the document and that there was no attestation of witnesses to the execution of the document by her and he relies on Girindra Nath Mukerjee V/s. Bejoy Gopal Mukerjee 26 C. 246 : 3 C.W.N. 84; Abdul Karim V/s. Salimun 27 C. 190; Shamu Patter v. Abdul Kadir Ravuthan 31 M. 215 : 18 M.L.J. 219 : 3 M.L.T. 300.

(2.) HE contends that the admission of execution by Acharja Kuar before the Sub- Registrar and the attestation of witnesses in the registration proceedings cannot take the place of the execution and attestation contemplated by Section 59 of the Transfer of Property Act. This ground was not taken in the Court below and is not taken specifically in the memorandum of appeal to this Court. It is admittedly a technical plea taken for the purpose of saving a portion of the family property from sale. The rulings cited by the learned Counsel for the appellant support his contention. On the other hand, this Court has held in Ganga Dei V/s. Shiam Sundar 26 A. 69 that the legislature in using the word "attested" in Section 59 of the Transfer of Property Act did not intend to use it in a narrow sense and further that the provisions of that section were complied with if there were attesting witnesses to attest, not necessarily the execution of the document, but the acknowledgment of execution by the person who had executed it. At page 71 of the judgment there is this passage: The social institutions of this country, in which it may be extremely difficult, if not impossible to obtain evidence of actual execution of a document by a parda nashin lady, support the view that the larger construction should be placed upon the word attested in Section 59 of the Transfer of Property Act." With these observations we agree. Further in Ramji Haribhai V/s. Bai Parvati 27 B. 291 it was held that a mortgage-deed was attested within the meaning of Section 59 of the Transfer of Property Act where witnesses had signed it in the presence of the mortgagor after having received from him a personal acknowledgment of his signature. This Court has considered that the provisions of the Act are sufficiently complied with if the Court is satisfied that the executant intended to and did execute the mortgage recited in the deed and further acknowledged the fact of execution to two attesting witnesses. If this view be correct, we have in the present case an execution and an acknowledgment of execution attested by witnesses and vouched for by public officer. For these reasons we find that the document was executed by Acharja Kuar and that her execution was attested by two witnesses as required by law. We agree with the finding of the Court below that the deed was executed by Acharja Kuar in favour of the respondents. We would be very loth to give effect to a technical plea of this nature in the circumstances of the present case. The sale-deed and the mortgage- deed were registered on one and the same date. Each document is in outward form complete in itself, but looking to the circumstances attending their execution it would appear that they were both part and parcel of really one transaction between the parties each being the complement of the other. The position now taken by the defendant-appellant is that while he accepts the sale-deed, he repudiates the mortgage. We do not think that he should be allowed to do so. The vendor believed that he was obtaining a valid mortgage from the persons in whose favour he had executed the sale-deed. We dismiss the appeal with costs, including in this Court-fees on the higher scale.