Shamu Patter V Abdul Kadir

SCC Online Web Edition, Copyright © 2020
Page 1 Monday, August 31, 2020

Printed For: Prakhar Raghuvanshi, National Law University
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1908 SCC OnLine Mad 101 : ILR (1908) 31 Mad 215
In the High Court of Madras

Appellate Civil
(BEFORE WALLIS AND SANKARAN NAIR, JJ.)
Shamu Patter … (Plaintiff) Appellant;

Versus
Abdul Kadir Ravuthan and Others … (Defendants and Legal
Representatives of Fifth and Sixth Defendants) Respondents.*
Appeal No. 27 of 1904, presented against the decree of P.J. Itteyerah, Esq.,
Subordinate Judge of South Malabar at Palghat, in Original Suit No. 26 of 1902
Decided on January 22, 1908, January 23, 1908 and January 28, 1908
Transfer of Property Act, Act IV of 1882, s. 59 — Provisions of section not sufficiently
complied with when witnesses not present at execution, but attest on executant's
acknowledgment of signature.
A mortgage deed is ‘attested’ by witnesses within the meaning of section 69 of the Transfer of
Property Act only when such attesting witnesses are actually present at the time of execution. The
provisions of the section are not complied with when the witnesses are not present at the execution
of the document but attest it, subsquently, on the acknowledgment by the mortgagor of his
signature.
Abdul Karim v. Saliman, (I.L.R., 27 Calc., 193), followed.
Ramji v. Bai Parvati, I.L.R., 27 Bom., 91, dissented from.
Ganga Dei v. Shiam Sundar, I.L.R., 26 All., 69, dissented from.
Per WALLIS, J.— The previsions of section 60 (clause 3) of the Indian Succession Act prescribing
the manner in which wills must be attested and allowing attestation by witnesses on the testator's
acknowledgment of his signature, cannot be regarded as a statutory definition of an attestation
applicable to other Indian Acts.
Per SANKARAN NAIR, J.— The absence in section 69 of the Transfer of Property Act of the provision
as to attestation on acknowledgment of signature contained in section 50(3) of the Succession Act,
shows that under section 19 of the Transfer of Property Act, attestation of the actual signature is
necessary.
SUIT to recover from first and second defendants personally, and by sale of the mortgaged
properties the amount due on a mortgage bond executed by defendants Nos. 1 and 2 to plaintiff's
elder brother in 1899.
The mortgage bond was attested by two witnesses both of whom, when examined, admitted
that they did not see the execution of the document, but attested subsequently on the admission of
the execution by the mortgagor. The Subordinate Judge gave a decree personally against defendants
Nos. 1 and 2, and dismissed
Page: 216
the suit as against the mortgaged properties. The plaintiff appealed to the High Court.
P.R. Sundara Ayyar and C.V. Anantakrishna Ayyar for appellant.

T.R. Ramachandra Ayyar and T.R. Krishnaswami Ayyar for third, seventh, tenth to
twelfth and seventeenth respondents.
The Judgment of the Court was delivered by
WALLIS, J.:— The main question raised in this appeal is whether the provisions of
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section 59 of the Transfer of Property Act which requires a mortgage to be effected by
a registered instrument signed by the mortgagor and attested by at least two
witnesses are sufficiently complied with when the witnesses are not present at the
execution of the instrument by the mortgagor, but attest it subsequently on his
acknowledgment of his signature. This question has been answered in the negative by
the Calcutta Court in Girindra Nath Mukerjee v. Bejoy Gopal Mukerjee(1) and Abdul
Karin v. Saliman(2) and in the affirmative by the Bombay and Allahabad High Courts in
Ramji v. Bai Parvati(3) and Ganga Dei v. Shiam Sundar(4) .
As to what is meant by attesting an instrument the appellants have relied on
numerous old cases under section 5 of the Statute of Frauds, of which Stonehouse v.
Evelyn(5) , Grayson v. Atkinson(6) , Ellis v. Smith(7) , and White v. Trustees of the British
Museum(8) were cited before us. In these cases it was held that under the provision
which required a will of lands to be “attested and subscribed in the presence of the
devisor by three or more credible witnesses,” it was unnecessary for the testator
actually to sign his will in the presence of the witnesses and that it was sufficient if he
acknowledged it to be his will. This contention, however, was disapproved by many of
the Judges who felt bound to follow it on the principle of stare decisis, and the
objections to it have nowhere been more forecibly expressed than by Lord Brougham
in delivering the judgment of the Privy Council in Casement v. Fulton(9) , a case under
the Indian Wills Act No. XXV of 1838. “The Statute of Frauds (29 Car. II.C.3, s. 5),
requires the will to be signed by the testator, in the presence of the witnesses;
Page: 217
nevertheless, the construction put upon that important provision has been that an
acknowledgment is equivalent to a signature. How far this latitude of interpretation
was justified in principle, we need not now stop to inquire, else it might well be
suggested that to do an act in the presence of a witness, and to acknowledge having
done it when the witness was not present, are two entirely different things—as
different as the witnessing a fact or act, and the witnessing a confession of that fact or
act. But it is too late to raise any such objection; we may, nevertheless, observe that
the greatest Judges who have dealt with the subject have admitted the force of such
considerations, and lamented the latitude given to the statutory provision by their
predecessors, who first broke in upon its strictness. When Lord Hardwicke, in 1752,
was first called upon to adopt this construction, he expressed that it had for a long
while been vexata quæstio; but still he felt the weight of authority too great to adopt
the course he manifestly inclined to (Grayson v. Atkinson(1) ). Two years after, the point
was more solemnly considered in Ellis v. Smith(2) , and adjudged by the same great
lawyer, who then had the assistance of Sir, J. Strange, M.R. Willes, C.J., and Parker,
C.B. All these eminent men expressed their opinion, that had the question been open
and that they were called upon now to decide it for the first time, they should not have
held acknowledgments sufficient. “But they found on examining the cases that the
case was not res integra.”
In the English Wills Act, 1 Vict., C. 36, followed in the Indian Wills Act No. XXV of
1838 and the Indian Succession Act of 1865, section 50, the Legislature when
intending that acknowledgment of the signature should be sufficient in the case of
wills did not think fit to leave this upon the construction placed upon the word ‘attest’
in the connection in which it occurs in section 5 of the Statute of Frauds, but expressly
enacted that the signature must be “made or acknowledged” by the testator in the
presence of two or more witnesses, thus reproducing what had for a very long time
been understood to be sufficient in the case of wills of land, but no longer leaving it to
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rest on a questionable construction of the Statute of Frauds.
Mr. Sundara Iyer has not been able to cite to us any case not under section 5 of the
Statute of Frauds in which attestation was
Page: 218
held to be sufficiently proved when it appeared that the deed was not executed in the
presence of the witnesses but subsequently acknowledged before them by the maker.
England v. Roper(1) and Farie v. Mears(2) deal with proof of execution and not with
proof of attestation where attestation is necessary. The meaning of the word ‘attest’
has often come up in regard to the execution of powers which are required to be
attested, but I cannot find that it has ever been suggested that attestation of an
acknowledgment of the appointor's signature would do. In Farwell on ‘Powers,’ p. 137,
it is said that the term ‘attest’, means “a witness shall be present to testify that the
appointor has done the act required by the power.” In Burdett v. Spilsbury(3) where
the opinion of the Judges was taken, Lord Campbell observes at p. 417 “What is the
meaning of an attesting witness to a deed? Why it is a witness who has seen the deed
executed, and who signs it as a witness” and Lord Chancellor Lyndhurst says similarly
“The party who sees the will executed is in fact a witness to it; if he subscribes as a
witness, he is then an attesting witness.” This was the meaning put upon the word in
Sharpe v. Birch(4) and by Sir George Jessel in Ford v. Kettle(5) . In the latter case Sir
George Jessel says at p. 143 “What then does ‘attestation’ mean? It is a well known
legal term. The ordinary form of attestation is ‘signed sealed and delivered’ by the
person who executes in the presence of the attesting witness. That is what
‘attestation’ means. The thing must be done in the presence of the man who in the
future will be able to testify that it was done. The authorities show that there is no
attestation unless the thing is done in the presence of the attesting witness.” These
words afford good guidance as to the meaning to be put on the word attestation in
construing an Indian statute. The decisions of the Bombay and Allahabad High Courts
in Ramji v. Bai Parvati(6) and Ganga Dei v. Shiam Sundar(7) proceed on the ground that
section 50 (cl. 3) of the Indian Succession Act which prescribes the manner in which
wills must he attested requires the attesting witness either to see the testator sign, or
to receive from him a personal acknowledgment of his signature, and that this
provision must be fallen as
Page: 219
a statutory definition of attestation applicable to other Indian Acts as well. With great
respect I am unable to share this view. I do not think we should be justified in
treating the provisions of section 50 (cl. 3) of the Indian Succession Act, as though
they appeared in an Interpretation Act and applying them to other Acts. These
provisions have a special history as already printed out and follow the provisions of the
Wills Act, 1 Vict., C. 36, which gave statutory authority to the construction put upon
section 5 of the Statute of Frauds, and in my opinion it would not be justifiable to
apply them to other Acts. If the Legislature had intended that mortgages should be
recognized in this way, they would, I think, have said so.
It is further objected on behalf of the appellant that this point was taken too late as
the execution was admitted by the third defendant who filed a Written statement on
behalf of defendants Nos. 5 to 7. The mortgagors, defendants Nos. 1 and 2, were ex
parte, and defendants Nos. 5 to 7 were only attaching creditors. It was therefore
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necessary for the plaintiff to prove his right to a mortgage decree against defendants
Nos. 1 and 2. This he failed to do when it was elicited in cross-examination that the
attesting witnesses were not present when the mortgage was executed.
Under these circumstances the Subordinate Judge was, I think, justified in framing
the further issue and deciding it for the defendants. The appeal must be dismissed
with costs.
SANKARAN NAIR, J.:— The question is whether the instrument sued upon is
‘attested’ as required by section 59 of the Transfer of Property Act. There are two
witnesses, Chami and Sivarama Menon. Chami admitted that he did not see the
document being written or signed and that he attested it at the Sub-Registry office at
the request of the mortgagee. As this was in the presence of the mortgagors to whom
the mortgage amount was then paid in his presence, it must be taken to be proved
that though there was no oral acknowledgment, the mortgagors in effect admitted
their execution. Sivarama Menon stated that he did not know where and when the
document was written, that he did not see its execution by the first and second
defendants and that he only attested it on their admission. Section 59 of the Transfer
of Property Act enacts that “a mortgage can be effected only by a registered
instrument signed by the mortgagor and attested by at least two witnesses.” Is this
document ‘attested’?
Page: 220
It is contended before us that as the witnesses signed their names on the

admission of the mortgagors of their signatures they have ‘attested’ the instrument.
The word ‘attest’ means to bear witness to; affirm the truth or genuineness of. A
person cannot be a witness to, or affirm the genuineness of, an instrument unless he
was present at the execution thereof. The subsequent admission may be false. If the
mental conviction of a person is enough for him to be a witness, such conviction may
be produced not only by the admission of the party executing, but also by other
unimpeachable testimony even against the declaration of the executant. Apparently
for this reason, the attesting witness must be one who was present at the execution.
So according to Blackstone's Commentaries, Vol. II, page 307, the ‘attestation’ of a
deed is “the execution of it in the presence of witnesses.” According to Lord St.
Leonards the attestation should be in this form: “Signed by the abovenamed-testator
in the presence of us present at the same time who have hereunto signed our
names”—Hand Book of Real Property. Freshfield v. Reed(1) has decided that when used
in an intstrument “the term ‘attest’, manifestly implies that a witness shall be present
to testify that the party who is to execute the deed has done the act.” Lord Selborne
relied upon this decision in Seal v. Claridge(2) when he was considering the effect of
the Bills of Sale Act, 1878. He said “What is the meaning of the word ‘attestation’
apart from the Bills of Sale Act, 1878? The word implies the presence of some person,
who stands by but is no; a party to the transaction.” So also Jessel, M.R., in Ford v.
Kettle(3) , Seal v. Claridge(2) , Sharpe v. Birch(4) , Ford v. Kettle(3) are decisions on the
Bills of Sale Act where the same view was taken as to the meaning of this word.
On the other hand, the cases Ellis v. Smith(5) , Grayson v. Atkinson(6) , Stonehouse v.
Evelyn(7) , White v. Trustees of the British Museum(8) have been cited to show that in
decisions upon the Statute of Frauds it has been repeatedly held that the witnesses
need not be present at the execution, but the acknowledgment
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Page: 221
by the testator of his signature to the witnesses followed by their own signatures is
sufficient, and they will be treated as attesting witnesses under the section.
Lord Campbell, C.J., however said of a will under section 5 of the Statute of Frauds
“that the will should be attested by the witnesses, i.e., that they should be present as
witnesses and see it signed by the testator” (Roberts v. Phillips(1) ), and in Bryan v.
White(2) , Dr. Lushington said “‘Attest’ means the persons shall be present and see
what passes, and shall, when required, bear witness to the facts.”
As to the decisions on the Statute of Frauds holding that an acknowledgment by the
testator is sufficient for the witnesses to sign, I do not attach great weight to them. All
the four Judges including the Lord Chancellor in Ellis v. Smith(3) said that they were
not satisfied that an acknowledgment is sufficient as it lets in inconveniences and
perjuries which the Statute was designed to prevent and is destructive of those
barriers the Statute erected against perjury and fraud, though they also said that it
was not open to them to decide otherwise as it was not res integra and stare decisis
seemed the wisest course.
The balance of English authority is decidedly in favour of adopting the natural
meaning of the term.
The decisions of the Indian High Courts are not uniform. No decision of this Court
has been brought to our notice. The learned Judges of the Calcutta High Court are of
opinion that the witnesses must be present when the mortgage instrument is signed—
see Girindra Nath Mukerjee v. Bejoy Gopal Mukerjee(4) , Abdul Karim v. Salimun(5) , Sasi
Bhusan Pal v. Chandra Peshkar(6) and Dinamoyee Debi v. Bon-Behari Kapur(7) .
On the other hand, it has been decided by the Bombay High Court in Ramji v. Bai
Parvati(8) and the Allahabad High Court in Ganga Dei v. Shiam Sundar(9) that the
attestation of a mortgage deed required by section 59 of the Transfer of Property Act
includes attestation, after execution of the deed, of the acknowledgment by the
executant of his signature.
Page: 222
I agree with the Calcutta High Court. The natural meaning of the word ‘attest’ as I
have shown is in favour of that view. A person signing a will in the presence of a
testator after receiving, from him a personal acknowledgment of his signature or mark
‘attests’ a will under section 50 of the Indian Succession Act. The absence of a similar
provision for the acknowledgment of execution in section 59 of the Transfer of Property
Act shows that attestation of the actual execution is necessary. The Bombay and the
Allahabad cases decide that when the word ‘attest’ is expressly and in terms declared
to bear a certain meaning in the Indian Succession Act, it must be taken to have the
same meaning in the subsequent enactment, the Transfer of Property Act, even in the
absence of any such legislative declaration; and in fact this is the only argument
advanced by the learned Judges who decided those cases. My inference is the other
way. The so-called attestation based on the acknowledgment is ordinarily superfluous
as evidence, as the document is registered and the executant's acknowledgment of his
signature before a public officer is entitled to greater weight A will operates only on
the death of a testator, and an acknowledgment by him therefore might perhaps be
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reasonably considered sufficient by the Legislature as it is open to a testator at the
time of the acknowledgment or subsequent thereto to make a will in the same terms
without prejudice to another person's interest, while in the case of a present transfer
of property the law might well insist upon proof of the voluntary execution of the
document on the date it purports to bear in the interests, among others, of those who
might claim under grants by the executant between the date of the alleged execution
and the acknowledgment. It is desirable to have proof of execution rather than proof of
the executant's acknowledgment to prove such execution.
For these reasons I would confirm the decree of the lower Court and dismiss the
appeal with costs.
WALLIS and SANKARAN NAIR, JJ.:— The Memorandum of Objections was not
argued and must be dismissed with costs.
———
*
Appeal No. 27 of 1904, presented against the decree of P.J. Itteyerah, Esq., Subordinate Judge of South
Malabar at Palghat, in Original Suit No. 26 of 1902.
(1) I.L.R., 26 Calc., 246.
(2) I.L.R., 27 Calc., 190.
(3)
I.L.R., 27 Bom., 91.
(4) I.L.R., 26 All., 69.
(5) (1734) 3 P. Wms., 251.
(6)
2 Ves. Sen., 454.
(7) 1 Ves. Jun., 11.
(8) 6 Bing., 310.
(9)
3 M.I.A., 395.
(1) 2 Ves. Sen., 454.
(2)
1 Ves. Jun., 11.
(1)
1 Stark, 304.
(2) 2 Bos. & P., 217.
(3) 10 Cl. & P., 340.
(4) 8 Q.B.D., 111.
(5) 9 Q.B.D., 139.

(6)
I.L.R., 27 Bom., 91.
(7) I.L.R., 26 All., 69.
(1) 9 M. & W., 404.
(2) 7 Q.B.D., 519.
(3) 9 Q.B.D., 141.
(4) 8 Q.B.D., 114.

(5) 1 Ves. Jun., 11 : (30 Eng. Rep., 205).
(6) 2 Ves. Sen., 454 : (28 Eng. Rep., 291).
(7) 3 P. Wms., 254 : (24 Eng. Rep., 1051).
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(8) 6 Bing., 310.
(1) 4 E. & B. 450 at p. 453 [24 L.J. (N.S.) Q.B. 171].
(2) 2 Rob., 315 at p. 317.
(3) 1 Ves. Jun., 11 : (30 Eng. Rep., 205).
(4) I.L.R., 26 Calc, 248.
(5) I.L.R., 27 Calc., 193.
(6) I.L.R., 33 Calc., 864.
(7)
7 Calc. W.N. 160.
(8) I.L.R., 27 Bom., 91.
(9) I.L.R., 26 All., 69.
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Shamu Patter V Abdul Kadir

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SCC Online Web Edition, Copyright © 2020

Page 1 Monday, August 31, 2020

1908 SCC OnLine Mad 101 : ILR (1908) 31 Mad 215

In the High Court of Madras

Shamu Patter … (Plaintiff) Appellant;

P.R. Sundara Ayyar and C.V. Anantakrishna Ayyar for appellant.

It is contended before us that as the witnesses signed their names on the

(5) 9 Q.B.D., 139.

(4) 8 Q.B.D., 114.

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