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1925 Supreme(SC) 36
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD ATKINSON, LORD SHAW, AND LORD DARLING.
HIRA BIBI - Appellant
Versus
RAM HARI LAL - Respondents
On Appeal From The High Court At Patna.
Decided On : June. 23. 1925.
Solicitors for appellants:W. W. Box & Co. Solicitors for respondents: Watkins & Hunter.
Admission of execution under Section 70 of the Indian Evidence Act cannot validate a mortgage deed that is not duly attested as required by Section 59 of the Transfer of Property Act; attestation requires witnesses to be present during the execution.
Headnote:(A) Transfer of Property Act, 1882 - Section 59 - Indian Evidence Act, 1872 - Section 70 - Mortgage deed - Requirement of attestation - Validity of document - A mortgage deed requires attestation by witnesses as provided by statute. To be a good signature attested by two witnesses, the persons signing as witnesses must be present at the execution of the instrument. Attestation means the persons shall be present and see what passes, and shall when required, bear witness to the facts. (Paras 6, 10)
(B) Indian Evidence Act, 1872 - Section 70 - Admission of execution - The provision that the admission of a party to an attested document of its execution shall be sufficient proof applies only to a document that is duly attested. If a document is not, in a legal sense, attested, the admission of the party cannot render valid that which is invalid. (Paras 12, 13)
Facts of the case:
A suit was brought to enforce a mortgage. The mortgagor, a pardanishin woman, signed the bond, but the witnesses did not see her sign as she was behind a parda. The document was taken to her, signed, and then brought out to the witnesses who subsequently signed. The lower courts held the deed valid on the ground that the mortgagor had admitted to the execution of the document during the trial.
Findings of Court:
The mortgage deed was not duly executed and attested in accordance with the statute because the witnesses were not present at the time of signing.
Issues: Whether the admission of execution by a party under Section 70 of the Indian Evidence Act can validate a mortgage deed that fails to meet the attestation requirements of Section 59 of the Transfer of Property Act.
Ratio Decidendi: The court held that Section 70 of the Indian Evidence Act operates only where the document is already duly attested. It cannot be used to cure a fundamental legal defect in the execution of the document. Since the witnesses were not present to see the mortgagor sign, the document was not legally attested and therefore void, regardless of the party's admission.
Result: Mortgage decrees set aside and suit dismissed against the appellant.
Based on the provided legal document, here are the key points regarding the case Hira Bibi vs. Ram Hari Lal:
- Case Identification: The case is an appeal (No. 6 of 1924) from a decree of the High Court at Patna, which varied a decree of the District Judge of Patna, originating from a suit decided on June 23, 1925, by the Privy Council (!) (!) .
- Parties and Subject Matter: The respondents sued the appellants to enforce by sale a mortgage dated August 17, 1906, for Rs. 29,000 (!) . The only substantial question in the appeal was whether the mortgage was binding upon the first appellant, Hira Bibi, who was a pardanishin woman (!) .
- Procedural History: The District Judge initially made a decree for sale against the first appellant but dismissed the suit against others. The High Court set aside the decree against the first appellant and made a mortgage decree against all defendants, ruling that while the execution was not duly attested, Section 70 of the Indian Evidence Act rendered the document valid due to the appellant's admission of execution during the trial (!) (!) .
- Facts of Execution: It was admitted that Hira Bibi actually signed the bond, but she was a pardanishin lady behind the parda. None of the witnesses were present to see her sign; her son took the deed inside the parda, came out, and told those outside that she had signed it before the witnesses signed (!) .
- Legal Issue: The core issue was whether Section 59 of the Transfer of Property Act (requiring attestation) was a rule of law affecting validity or a rule of evidence affecting proof, and whether an admission by the party could cure a defect in attestation (!) (!) .
- Lower Court Reasoning: The High Court judges held that Section 70 of the Indian Evidence Act operated such that the admission of the defendant made it unnecessary for plaintiffs to prove due execution, following earlier decisions of the Calcutta and Patna High Courts (!) (!) .
- Privy Council Precedents: The Privy Council referenced *Shamu Patter v. Abdul Kadir
Legal Category Hierarchy
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property law
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transfer of property
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mortgages
- attestation and execution
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mortgages
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transfer of property
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evidence law
- admissions
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 i
