KUNWAR SURENDRA BAHADUR SINGH Vs. THAKUR BEHARI SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiffs in the suit against a judgment and decree of the High Court of Allahabad dated 28 November 1933, whereby the appeal of one of the present respondents, viz., Lachman Singh, was allowed and the suit as against the said Lachman Singh and his share of the mortgage property was dismissed. The plaintiffs are Kunwar Surendra Bahadur Singh and his two minor sons and the suit was brought for foreclosure of a mortgage dated 23 June 1909, purporting to be executed by Himmat Singh (now deceased), Mulu Singh and Mt. Jamna Kunwar, mother and certified guardian of the said Lachman Singh, who was then a minor, in favour of Surendra Bahadur Singh in respect of certain zemindari property to secure a loan of Rs. 18,000 and 4? per cent. interest in order to pay off prior mortgages at a higher rate of interest. The defendant-respondents 1-9 are heirs of Himmat Singh, No. 10 is Lachman Singh, Nos. 11, 12 and 13 are Mulu Singh and his two sons and Nos. 14 to 24 are various transferees.

(2.) Before the execution of the mortgage, Mt. Jamna Kunwar obtained the permission of the District Judge to borrow Rupees 4500 (one-fourth of Rs. 18,000) by hypothecation of the one- fourth share of the minor Lachman Singh in the said property. The principal and interest were payable on 23 June 1916. The mortgage deed was presented for registration on 24 June 1909 at the office of the Sub-Registrar of Etawah by Himmat Singh and it was duly registered. It will be necessary to refer later in more detail to the proceedings of the registration. The suit was brought for principal and interest amounting to Rupees 41,400-14-6 on 25 May 1928. Written statements were filed by Lachman Singh and by two of the transferees. The plea to which it is necessary to refer is that which is contained in para. 9 of Lachman Singh's written statement, viz:

(3.) The contesting defendant does not admit the execution and completion of the document sued on, nor is receipt of any consideration of the same admitted. There were other pleas in the written statements but the above-mentioned plea is the only one which is material to the decision of this appeal. The mortgage deed purported to be signed by Himmat Singh and Mulu Singh and to be executed by the thumb impression of Jamna Kunwar, the mother of Lachman Singh and it bore on the face of it the names of five persons who purported to sign as witnesses to the execution of the deed. At the trial, Himmat Singh's heirs and Mulu Singh did not dispute the execution of the deed, but it was contended on behalf of Lachman Singh that the execution and due attestation of the mortgage bond so far as his mother was concerned had not been proved. One only of the five alleged witnesses, viz. Badri Prasad, was called to give evidence on behalf of the plaintiffs as to the execution and attestation of the mortgage deed on 23 June, 1909. The plaintiffs' mukhtaram and the scribe, who wrote out the mortgage, also gave evidence, but they were not attesting witnesses. In consequence of contradictory statements made by the above-mentioned persons, the Subordinate Judge came to the conclusion that he could not rely upon their evidence. The learned Judge however relying on a Full Bench decision of the Madras High Court Veerappa Chettiar V/s. Subramania Ayyar, (1929) 16 AIR Mad 1 held that the signatures of the registering officer and of the identifying witnesses affixed to the registration endorsement were sufficient attestation within the meaning of the Transfer of Property Act and its subsequent amending Acts. He therefore made a decree against the representatives of Himmat Singh, Mulu Singh and Lachman Singh, declaring their several liabilities to pay their proportionate shares of the amount due under the mortgage for principal, interest and costs which he assessed at Rs. 44,229. Lachman Singh appealed to the High Court of Allahabad, and the learned Judges who heard the appeal referred to a Full Bench the following questions : 1. When a mortgagee sues to enforce his mortgage, and execution and attestation of the deed are not admitted, what must the mortgagee prove in order to obtain a decree ? 2. Whether the signatures of the Sub-Registrar and of the witnesses identifying the executant at registration are a sufficient attestation of the deed for the purposes of the Transfer of Property Act, assuming that the Sub-Registrar and identifying witnesses did receive from the executant a personal acknowledgment of his signature or mark, and that they did sign in the executant's presence ?