Judgement

Appeal (No. 6 of 1924) from a decree of the High Court (June 10, 1921) varying a decree of the District Judge of Patna (September 26, 1917).

The respondents sued the appellants to enforce by sale a mortgage dated August 17, 1906, for Rs.29,000.

Though other questions arose at the trial the only substantial question in the appeal was whether the mortgage was binding upon the first appellant, a pardanishin woman. She had filed a separate written statement in which she pleaded that she was a pardanishin woman, and did not admit the validity of the deed. At the trial she admitted in her evidence that she had executed it.

The facts as to the attestation of her signature appear from the judgment of the Judicial Committee.

The suit was tried by the District Judge, who made a decree for sale against the first appellant, but dismissed the suit as against the other defendants upon grounds not material to this report.

Upon an appeal and cross-objection the High Court set aside the decree, and made a mortgage decree against all the defendants. The learned judges were of opinion that the execution of the deed by the first appellant was not duly attested, but they considered themselves bound by Indian decisions to hold that, as in the course of the trial she had admitted execution, s. 70 of the Indian Evidence Act, 1872, rendered the document valid against her. The judgment of Das J., with which Adami J. agreed, after referring to Satish Chandra Mitra v. Jogendra Nath Maharlanabis (( 1916) I. L. R. 44 Calc. 345.); Nibaran Chandra Sen v. Ram Chandra Sen (( 1917) 22 Cal. W. N. 444.), followed by the Patna High Court in Nageshwar Prasad v. Bachu Singh (( 1919) Pat. L. J. 511.), contained the passage cited in the judgment of the Judicial Committee.

1925. May 22, 26. De Gruyther K.C. and Wallach for the appellants.

Sir George Lowndes K.C., and E. B. Raikes for the respondents Nos.1 to 5 and No.8.

Reference was made to the decisions of the Board referred to in the present judgment.

June 23. The judgment of their Lordships was delivered by

LORD DARLING. This is an appeal from a judgment and decree, dated June 10, 1921, of the High Court of Judicature at Patna, partly affirming and partly reversing a judgment and decree of the District Judge of Patna. The suit was brought to enforce a mortgage dated August 17, 1906. It was pleaded by the defendants (appellants) that the mortgage bond is void by reason of its not being attested in accordance with the provisions of the Transfer of Property Act IV. of 1882, s. 59.

The only important question upon this appeal is in regard to the appellant Musammat Hira Bibi and her liability on the mortgage bond. It is admitted that she actually signed the bond, but it is a document which requires attestation by witnesses, as is provided by statute.

Hira Bibi is a pardanishin lady. The evidence shows, beyond contest, that when Hira Bibi signed the mortgage bond not one of the persons who signed as witnesses was present or saw her sign it. She was behind the parda. Anant Prasad, her son, took this deed, and others, inside the parda. He came out and told those outside, and out of sight of Hira Bibi, that she had signed the deed, and after this all those signed whose names appear as witnesses.

The learned judges from whose judgments this appeal is brought have themselves declared that this is wholly insufficient to comply with the statute relating to the due execution and attestation of such a document as this mortgage bond, but they have held that the deed is good as against Hira Bibi, because she has admitted that she signed it.

Das J., with whose judgment Adami J. agreed, put the case thus "If the matter were res integra I should doubt whether the admission of a party can render valid that which is invalid. The question is—is the rule enunciated in s. 59 of the Transfer of Property Act a rule of law affecting the validity of the mortgage or is it a rule of evidence affecting the proof of the document ? If it