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1918 Supreme(SC) 4
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT HALDANE, SIR JOHN EDGE, MR. AMEER ALI, AND SIR WALTER PHILLIMORE, BART.
GANGA PERSHAD SINGH - Appellant
Versus
ISHRI PERSHAD SINGH - Respondents
On Appeal from the High Court in Bengal.
Decided On : February 1, 1918.
Solicitors for appellant:T. L. Wilson & Co. Solicitors for respondents: Ranken Ford & Chester.
Attestation under Section 59 of the Transfer of Property Act, 1882, requires witnesses to be present at the execution of the instrument. Mere subsequent acknowledgment of the signature, even in the case of pardanishin ladies, is insufficient to satisfy the statutory requirement.
Headnote:(A) Transfer of Property Act, 1882 - Section 59 - Attestation of mortgage deed - Requirement for witnesses to be present at the time of execution - Mere subsequent acknowledgment of signature by a third party is insufficient to satisfy the statutory requirement of attestation.
(B) Execution by pardanishin ladies - Attestation is valid if witnesses can identify the executant through their hand or voice, but invalid if they rely solely on the word of another person that the document has been signed.
Facts of the case:
A mortgage deed was executed by a pardanishin lady acting as a guardian. The lady remained behind a curtain during the process. The witnesses did not see her sign the document nor hear her voice. They were informed by the lady's son that the document had been signed. The validity of the attestation under the relevant statute was challenged.
Findings of Court:
The attestation was invalid because the witnesses were not present at the actual execution and relied on subsequent acknowledgment.
Issues: Whether a mortgage deed is validly attested under Section 59 of the Transfer of Property Act, 1882, when witnesses do not see the executant sign but are informed of the execution by a third party.
Ratio Decidendi: For a document to be "attested" under Section 59, witnesses must be present at the execution. In the case of pardanishin ladies, while seeing the hand or hearing the voice may suffice for identification, relying on a third party's statement that the document was signed constitutes mere subsequent acknowledgment, which does not comply with the law.
Result: Appeal allowed.
Legal Category Hierarchy
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property law
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mortgages
- attestation and execution
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mortgages
Judgement
Appeal from a judgment and decree of the High Court (August 12, 1909) reversing a decree of the Subordinate Judge of Darbhanga.
The sole question argued upon the appeal was whether a mortgage deed dated August 23, 1893, was so attested as to comply with s. 59 of the Transfer of Property Act, 1882.
The circumstances of the attestation and the terms of s. 59 appear from their Lordships judgment.
7 Law Rep. 45 Ind. App. 94 ( 1917- 1918)
Ganga Pershad Singh V. Ishri Pershad Singh 18
The Subordinate Judge held that the attestation was invalid and the deed inoperative. The High Court reversed that decision and made a decree upon the mortgage.
1918. Feb. 1. De Gruyther, K.C., and Kenworthy Brown, for the appellant.
Dunne, K.C., for the respondents.
[Reference was made to Shamu Patter v. Abdul Kadir Ravuthan (L. R. 39 I. A. 218.), Padarath v. Ram Nain Upadhia (L. R. 42 I. A. 163.), and Abdul Karim v. Salimun . (( 1899) I. L. R. 27 C. 190.)]
The judgment of their Lordships was delivered by
VISCOUNT HALDANE. This appeal arises out of a suit which was brought by one Ishri Pershad and others to enforce an instrument of mortgage, dated in 1893, against the present appellant and others. The whole question before their Lordships turns, in the first instance, upon the validity of the instrument of mortgage which is sought to be enforced. It is argued on behalf of the appellant that the mortgage was invalid because it was not executed in the manner rendered necessary by s. 59 of the Transfer of Property Act, 1882. Sect. 59 enacts that " Where the principal money sum secured is 100 rupees or upwards, a mortgage can be effected only by a registered instrument signed by the mortgagor, and attested by at least two witnesses." Now the question is, What is meant by the word " attested " ? In the present case, all that is proved is that the mortgage was executed under circumstances which their Lordships will state very shortly. It was granted by a lady called Mussummat Sharbat Koer, who was the guardian of her son Balmukund Das, and she executed the mortgage on his behalf. She was a pardanishin lady, and the account given by the respondents own witnesses of what happened was this She was behind the parda when the document was taken to her for signature ; none of the witnesses saw her sign it; her son came from behind the parda and said that it had been signed by her. That was all. The question is whether the witnesses who appended their names under these circumstances attested the document in accordance with the provisions of s.
59. Now at one time there seems to have been a good deal of difference of opinion as to what " attested " meant. It will be observed that the words are not " attested and acknowledged," as is the case in some statutes, but " attested" only. At the time this appeal was decided by the High Court this Board had not decided the case of Shamu Patter v. Abdul Kadir Ravuthan. (L.
R. 39 I. A. 218.) In that case it was held, settling the law as to the interpretation of the words to which their Lordships have referred in s. 59, that the section is not complied with if the witnesses have
not been present at the execution of the instrument and have only attested on the subsequent acknowledgment of the signature. After that there was another case brought before this Board, which was relied on by the respondents as bringing the point in the present case, at any rate, much nearer. It was a case of Padarath v. Ram Nain Upadhia. (L. R. 42 I. A. 163.) The head-note is as follows “A mortgage deed purported to be executed by two pardanishin ladies. It appeared from the evidence of two of the attesting witnesses that they saw the hand of each executant when she signed the deed, and that, although they could not see the faces of the executants; they heard them speak and recognized their voices."
That is a very different case from a case of attesting on mere subsequent acknowledgment. It is a case in which the witnesses actually saw the ha
