The legal validity of attestation for mortgages and the requirement to raise objections at the earliest opportunity.

Sadasiva Ayyar, J.

1. The third defendant whom I shall call the mortgagee is the appellant before us. The plaintiff is a melkanomdar and he got his melkanom from the jenmi, the first defendant, who was then the stanom-holder of a desam. The suit was for redemption of the third defendant, the mortgagee under the kanom deed Exhibit A, dated 1904, and all the sub-mortgagees and other demisees under the third defendant were also made parties. The second and third plaintiffs and the second defendant may be treated as claiming under sub-mortgages created by the plaintiff. The first Court held that the melcharth or melkanom to the first plaintiff granted by the first defendant was not a kanom, but an improvement lease and that it did not require therefore to be attested by two witnesses (as a mortgage is required to be attested by Section 59 of the Transfer of Property Act). Then it found the value of improvements due to the third defendant and his sub-mortgagees and lessees and gave an elaborate decree from which I shall make the following extracts This Court doth order and declare that the amount due to the third defendant on account of kanom is Re. 1-8-0 and the value of improvements is Rs. 4,047-3-11; to the fourth defendant is Rs. 204-7-6 and so on up to the hundred and seventh defendant; and then the decree says that if the plaintiffs pay into Court the amount so declared due on or before 12th February 1919, the defendants shall deliver up to the plaintiffs all documents in their possession or power relating to the mortgaged properties and shall put the plaintiffs in possession of the properties.

2. This decree means that each of the particular defendants mentioned in the first portion of the decree to whom a specified amount is declared to be due by the plaintiffs shall put the plaintiffs in possession of the particular properties in his possession. Then, the third defendant preferred an appeal and he made only the defendants Nos. 1, 2, 37,112 and 154 and the three plaintiffs, party respondents to his appeal. The main points taken by him in the appeal were (1) that the melcharth Exhibit B in favour of the first plaintiff, was invalid for want of proper attestation (2) that Exhibit B was a mortgage and ought to be attested as a mortgage and not as a mere lease.

3. These were the two principal contentions in the Appeal before the Subordinate Judge.

4. The plaintiffs-respondents did not take the objection before the Subordinate Judge that the appeal was bad for non-joinder of the other defendants who had been parties in the first Court. The learned Subordinate Judge held that Exhibit B might be considered as an improvement lease and not a kanom and that therefore it did not require attestation as a mortgage and hence he dismissed the appeal.

5. In Second Appeal before us the same points are taken, namely, that Exhibit B was a kanom document and therefore was not properly attested and was wholly invalid; and then there is also a point taken about compensation for a well in plot B, and for tank and well in plot D. The first defendant (the stanomdar who granted the melcharth and the original kanom. Exhibit A) died after the date of the decision of the lower Appellate Court, and the third defendant brought the next stanomdar on record in this Second Appeal as the legal representative of the first defendant.

6. The first question for consideration is whether Exhibit A is a mortgage document and whether it ought to be attested as such to have legal validity. The plaint is worded as a suit for redemption of the kanom mortgage, and Court fees have been paid on the principal mortgage amount as in a suit for the redemption of mortgage. The document of which Exhibit A is a counter-part, and the document Exhibit B are no doubt called Taragas or Royal grants, but that should make no difference in their construction. What we have to look to is not the form but the substance of the documents. The contention that they are not kanoms but leases