1969 Supreme(SC) 42
K.S.HEGDE, R.S.BACHAWAT, S.M.SIKRI
M. L. Abdul Jabbar Sahib – Appellant
Versus
M. V. Venkata Sastri And Sons – Respondent
Advocates:
K.N.BALASUBRAMANIAN, R.GOPAL KRISHNAN, R.THIAGARAJAN
Judgement Key Points
- The appellant instituted a suit under summary procedure against Hajee Ahmed Batcha for recovery under promissory notes. (!)
- Hajee Ahmed Batcha obtained leave to defend on condition of furnishing security of Rs. 50,000 via a bond charging immovable properties, executed in favor of the Registrar. (!)
- The security bond was registered but properties were outside the Madras High Court's original jurisdiction. (!)
- Decree passed declaring the security bond enured as a charge for the decretal amount, with liberty to sell properties in default. (!) (!)
- Respondents, simple money decree-holders, sought rateable distribution of sale proceeds from the charged properties. (!) [1000137120003]
- Security bond attested by B. Somnath Rao; signatures of Sub-Registrar and identifying witnesses held not amounting to attestation. (!) [1000137120006][1000137120010][1000137120011]
- "Attested" under Section 3, Transfer of Property Act, requires two or more witnesses who have seen execution or received acknowledgment and signed with animus attestandi in presence of executant. (!) (!) [1000137120007]
- Signatures of registering officer or identifying witnesses prima facie for statutory purposes under Registration Act, not attestation, absent evidence of intent. (!) [1000137120009][1000137120010]
- Section 100, Transfer of Property Act, first part allows charge by act of parties without restricting mode; second part applies simple mortgage provisions (excluding creation requirements like Section 59 attestation/registration). (!) [1000137120012][1000137120013][1000137120014][1000137120016][1000137120017]
- Charge can be created without writing or attestation; registration required under Registration Act Section 17(1)(b) if value Rs.100+, but not attestation. (!) [1000137120015][1000137120016]
- Decree construed as enforcing charge created by security bond, granting liberty to sell for discharge thereof. (!) [1000137120018]
- Objection to court's territorial jurisdiction not raisable by rateable distribution applicants assuming valid sale.[1000137120019]
- Proceeds of sale of charged properties applied first to discharge charge-holder's amount under Section 73(1), proviso (c), Code of Civil Procedure; balance only for rateable distribution.[1000137120020]
- Appeals allowed; single judge orders restored, denying rateable distribution to respondents.[1000137120021] (!)
Judgement
BACHAWAT, J. On February 23, 1953 the appellant instituted C. S. No. 56 of 1953 on the Original Side of the Madras High Court under the summary procedure of Order 7 of the Original Side Rules against Hajee Ahmed Batcha claiming a decree for Rs. 40,556-1-2 and Rs. 832712-9 said to be due under two promissory notes executed by Hajee Ahmed Batcha.On March 9, 1953, Hajee Ahmed Batcha obtained leave to defend the suit on condition of his furnishing the security for a sum of Rs. 50,000 to the satisfaction of the Registrar of the High Court. On March 26, 1953 Hajee Ahmed Batcha executed a security bond in favour of the Registrar of the Madras High Court charging several immovable properties for payment of Rs. 50,000. The condition of the bond was that if he paid to the appellant the amount of any decree that might be passed in the aforesaid suit the bond would be void and of no effect and that otherwise it would remain in full force. The bond was attested by B. Somnath Rao. It was also signed by K. S. Narayana Iyer, Advocate, who explained the document to Hajee Ahmed Batcha and identified him. All the properties charged by the bond are outside the local limits of the ordinary ori
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