Decided on December 18,1973

Bhagabat Ray Appellant
Parameswar Paikary And Ors. Respondents


G.K. Misra, C.J. - (1.) THE suit was filed for recovery of Rs. 564. 80P. on the strength of Ext. 1 dated 7 -8 -1862 which is a mortgagee by conditional sale for Rs. 400/ - with a stipulation that if the mortgage is not put into possession, interest was payable as mentioned in the document. In the written statement the execution of the mortgage bond was not specifically denied. On the contrary, it was admitted by the Defendants that possession of the mortgaged property was handed over to the Plaintiff in accordance with the terms of the mortgage bond and Plaintiff remained in possession from 1962 to 1966 whereby the mortgage dues were fully discharged out of the usufruct and Plaintiff was to refund an amount of Rs. 31, 05 P. In paragraph 2 of the written statement it was pleaded that the mortgage deed was not attested in accordance with law. The learned trial Court decreed the Plaintiff 's suit holding that the mortgage bond (Ext. 1) was duly executed and attested and that the Plaintiff was not put in possession of the mortgage security, the possession remaining, with the Defendants as before. The learned lower appellate Court agreed with the trial Court that possession of the mortgage security was not parted with and the Defendants continued in possession and Plaintiff was not in possession of the mortgaged property. It, however, found that Ext. 1 was not duly attested and accordingly dismissed the suit. Plaintiff has filed the second appeal.
(2.) THE only point for consideration in this appeal is whether Ext. I was duly attested. In Section 3 of the Transfer of Property Act "attested" in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has been some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a 'personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary. The gist of the meaning of the word 'attested ' is that witnesses shall sign the document in the presence of the executant and similarly, the executant would sign the document in the presence of witnesses. Each must see the ' other signing the document. Under Section 59 of the T.P. Act when the principal money secured is one hundred rupees or onwards, a mortgage, other than a mortgage by deposit of title -deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.
(3.) EXT . 1 has admittedly been signed by two witnesses. P.w. 1, one of the attesting witnesses, has been examined in the case. He deposed, to the following effect in examination -in -chief: Parameswar Paikray (Defendant No. 1) and Laxmidhar Ray (Defendant No. 2) and Parameswar Paikray as guardian for minor Saakarsan Ray (Defendant No. 3) have executed a deed of mortgage by conditional sale in favour of the Plaintiff on 7 -8 -1962 before mr. Ganesh Chandra Mohanty scribed the said deed and read over the same to the executants before me. The executants after attesting it signed the said deed before me. I have signed the said deed. Anama Rout has ,also signed the said deed. Thus, on the evidence of p. w. 1 there is no dispute that two witnesses signed the document and the executants also signed it. The learned lower appellate Court did not accept Ext. 1 as having been attested on the basis of law laid down in Sita Dakuani and Ors. v. Rama Chandra and Ors. 33 (1969) C.L.T. 811. As p.w. 1 did not depose that witnesses signed Ext. 1 In the presence of the executants and executants signed in the presence of the witnesses, it held that there was no proof of attestation.;

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