Case Summary
| Citation | Kumar Harish Chandra Singh Deo v. Bansidhar Mohanty (1966) 1 SCR 153: AIR 1965 SC 1738 |
| Keywords | sec 3 TPA , Attestation |
| Facts | Harish and Jagannath were friends. Harish was in need of money, Jagannath the money and wanted to help Harish, but the relations between them were such, that Appellant felt embarrassed in asking for some security from respondent no 1, for the repayment of the money advanced, for fear that it may spoil their relations. He took the help of Bansidhar Mohanty, whom he had taken into confidence. Though the money was Jagannath ‘s, it was lent to appellant by Mohanty, who also obtained a mortgage of Appellant ‘s property in his (Mohanty’s) name as a security for repayment of the money. This mortgage deed was duly executed by Respondent, the mortgagor in favour of Mohanty the mortgagee, and was attested by two witnesses, one of whom was respondent no 1. Respondent, who had lent the money, was a person who was a party to the whole transaction, but it was only Appellant and Mohanty who were parties to the deed. The money was not repaid by the appellant within the year with interest. |
| Issues | Whether the mortgage deed, upon which the suit of respondent was based validly attested? Whether respondent no. 1 was entitled to institute the suit? |
| Contentions | Appellant contended that this deed is not validly attested as there was only one attesting witness and the respondent was party to transaction, not AW. |
| Law Points | The Supreme Court held that no provision of law debars a money-lender from attesting a deed which evidences the transaction where under the money was lent. The Hon’ble Court drew a distinction between a person who is a party to a deed and a person who, though not a party to the deed, is a party to the transaction. While the former is incompetent to be an attesting witness, the later can validly attest the deed. A party who is interested in the transaction can be a competent witness. It was held that the deed was validly attested. |
| Judgement | SC upheld HC’s decree and held that this deed is validly attested. Court held that even if a person who is not a party to deed may attest it providing he has some interest in it. |
| Ratio Decidendi & Case Authority |
Full Case Details
J.R. MUDHOLKAR, J. – Two questions are raised before us in this appeal from the judgment of
the Orissa High Court. One is whether the mortgage deed upon which the suit of Respondent 1 was
based was validly attested. The other is whether Respondent 1 was entitled to institute the suit.
2. The mortgage deed in question was executed by the appellant in favour of Jagannath Debata,
Respondent 2 on April 30, 1945, for a consideration of Rs 15,000. The appellant undertook to repay
the amount advanced together with interest within one year from the execution of the deed. The
appellant, however, failed to do so. Respondent 1 therefore instituted the suit out of which this appeal
arises.
3. According to Respondent 1 though the money was advanced by him to the appellant he
obtained the deed in the name of the second respondent Jagannath Debata because he himself and the
appellant were close friends and he felt it embarrassing to ask the appellant to pay interest on the
money advanced by him. As the consideration for the mortgage deed proceeded from him he claimed
the right to sue upon the deed. He, however, joined Jagannath Debata as the third defendant to the
suit. He also joined Dr Jyotsna Dei as second defendant because she is the transferee of the mortgaged
property – which consists of a house, from the appellant whose wife she is. This lady however
remained ex parte. The appellant denied the claim on various grounds but we are only concerned with
two upon which arguments were addressed to us. Those are the grounds which we have set out at the
beginning of the judgment. The third defendant Jagannath Debata disputed the right of Respondent 1
to institute the suit and claimed that it was he who had advanced the consideration. His claim was,
however, rejected by the trial court and he has remained content with the decree passed by the trial
court in favour of Respondent 1. The trial court decreed the suit of Respondent 1 with costs. Against
that decree the appellant alone preferred an appeal before the High Court. The contention raised by
the appellant before us were also raised by him before the High Court but were rejected by it.
4. In our opinion there is no substance in either of the contentions urged on behalf of the
appellant. It is no doubt true that there were only two attesting witnesses to the mortgage deed, one of
whom was Respondent 1, that is, the lender himself. Section 59 of the Transfer of Property Act,
which, amongst other things, provides that a mortgage deed shall be attested by at least two witnesses
does not in terms debar the lender of money from attesting the deed. The word “attested” has been
defined thus in Section 3 of the Transfer of Property Act: This definition is similar to that contained in
the Indian Succession Act. It will be seen that it also does not preclude in terms the lender of money
from attesting a mortgage deed under which the money was lent. No other provision of law has been
brought to our notice which debars the lender of money from attesting the deed which evidences the
transaction where under the money was lent. Learned counsel, however, referred us to some decisions
of the High Courts in India. These are Peary Mohan Maiti v. Sreenath Chandra [14 Cal WN 1046];
Sarur Jigar Begum v. Barado Kanta [ILR 37 Cal 525] and Gomathi Ammal v. V.S.M. Krishna Iyer
[AIR 1954 Mad 126]. In all these cases it has been held that a party to a document which is required
by law to be attested is not competent to attest the document. In taking this view reliance has been
placed upon the observations of Lord Selborne, LC, in Seal v. Claridge [(1881) 7 QBD 516].
“It (i.e. the attestation) implies the presence of some person, who stands by but is not a
party to the transaction.”
38
The object of attestation is to protect the executant from being required to execute a document
by the other party thereto by force, fraud or undue influence. No doubt, neither the definition of
“attested” nor Section 59 of the Transfer of Property Act debars a party to a mortgage deed from
attesting it. It must, however, be borne in mind that the law requires that the testimony of parties to a
document cannot dispense with the necessity of examining at least one attesting witness to prove the
execution of the deed. Inferentially, therefore, it debars a party from attesting a document which is
required by law to be attested. Where, however, a person is not a party to the deed there is no
prohibition in law to the proof of the execution of the document by that person. It would follow,
therefore, that the ground on which the rule laid down in English cases and followed in India would
not be available against a person who has lent money for securing the payment of which a mortgage
deed was executed by the mortgagor but who is not a party to that deed. Indeed it has been so held by
the Bombay High Court in Balu Ravii Gharat v. Gopal Gangadhar Dhabu [12 Ind Cas 531 (Bom)]
and by the late Chief Court of Oudh in Durga Din. v. Suraj Bakhsh [AIR 1931 Oudh 285]. In the
first of these cases an argument similar to the one advanced before us was addressed before the
Bombay High Court. Repelling it the court observed:
“In Seal v. Claridge much relied upon by the appellant’s pleader the old case of Swire v.
Bell [(1793) 5 TR 371], in which the obsolete rule was pushed to its farthest extent, was cited
to the Court but Lord Selborne in delivering judgment said: ‘What is the meaning of
attestation, apart from the Bills of Sale Act, 1878? The word implies the presence of some
person who stands by but is not a party to the transaction.’ He then referred to Freshfield v.
Reed [(1842) 9 M. & W. 404] and said: ‘It follows from that case that the party to an
instrument cannot attest it.’ Again in Wickham v. Marquis of Bath [(1865) LR 1 Eq. 17 at p.
25], the remarks of the Master of the Rolls imply that if the plaintiffs Dawe and Wickham had
not executed the deed as parties but had only signed with the intention of attesting, the
provision of the statute requiring two attesting witnesses would have been satisfied.”
A distinction was thus drawn in this case between a person who is a party to a deed and a person
who, though not a party to the deed, is a party to the transaction and it was said that the latter was not
incompetent to attest the deed. This decision was followed by the Chief Court of Oudh. We agree with
the view taken by the Bombay High Court.
6. In this view we uphold the decree of the High Court and dismiss the appeal with costs
