Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Sheik Kachu vs Mahammad Ali Mamud on 30 March, 1926
Equivalent citations: 105 Ind Cas 28
Author: Page
Bench: Cuming, Page


Page, J.

1. This is a suit for foreclosure on a mortgage. The plaintiff’ claims to recover possession of the mortgaged property on the ground that the amount claimed under the mortgage is due. The defendants plead that they had paid off what was due under the mortgage and, therefore, the plaintiff was not entitled to recover possession of the mortgaged property. That plea has been found to be bad, and it has been held that if the mortgage is valid in law having regard to Section 59 of the Transfer of Property Act the plaintiff is entitled to succeed.

2. Now, the material facts are–that the mortgagors, the mortgagee and the attesting witnesses are all illiterate persons and on the date upon which the mortgage was executed the parties and the attesting witnesses were all present, and in the presence of the attesting witnesses the names of the mortgagors were duly placed upon the document by a scribe duly authorised by the mortgagors in that behalf. The names of the attesting witnesses were also written on the document with their authority and in their presence. As all those acts were done in the presence of all the necessary parties the document was validly executed in accordance with law. The mortgagors with the assent of the mortgagee on the following day took the document to the Registry for the purpose of having it registered. Now, the instrument of mortgage was contained in two papers unattached to each other, and the signatures appeared only upon one of the two papers. It may, however, be taken for the purpose of this case that the two papers sufficiently refer to each other to enable the mortgage to be duly executed by the execution of one of them. The Registration Officer, however, on these two papers being presented to him expressed the view that each of the papers ought to be duly executed and unless both the papers were executed, he stated that he would not accept the document for registration. Accordingly the mortgagors, who were present at the Registration Office, gave authority to one Hossain Ali to re-execute the mortgage in order to conform with the view expressed by the Registration Officer. In the presence of the mortgagors and with their knowledge and consent a cross was then placed over the mortgagors’ signatures as they then appeared on the document and Hossain Ali wrote their names again on each paper. The result was that the document was re executed by the mortgagors at the Registration Office; but unfortunately the witnesses who had duly attested the original execution were not present at the Registration Office when the original signatures were cancelled and the document was re-executed. In the new form the document was then presented to the Registration Officer and was accepted by him and duly registered.

3. Now, the result of what had taken place was that the conditions of Section 59 of the Transfer of Property Act upon the fulfilment of which depended the validity of the document as a mortgage were not complied with. The document that was originally executed was duly executed and attested but was not registered; whereas the document which was registered did not comply with the provisions of Section 59 for the signatures of the executants were not attested. In their written statement the defendants whose defence was that they had paid off the amount due under the mortgage did not plead that the document sued upon was not a valid mortgage in law, and at the trial it was admitted by or on behalf of the mortgagors that the document was duly executed and attested. Now, if the plaintiff had relied solely upon the admission of the defendants that the document was duly executed and attested it might well be that he would have been entitled to succeed. But he did not do so. He adduced evidence before the lower Court from which it became apparent that the document was not a valid mortgage according to law. Now, Section 70 of the Evidence Act enables a plaintiff to dispense with proof of the matters therein mentioned if they are admitted by the opposite party. Section 70, however, cannot and does not affect to render valid a document which, it is apparent from the evidence before the Court, is invalid in law. See Ganga Pershad Singh v. Ishri Parshad Singh 45 Ind. Cas. 1 : 45 I.A. 94 : 4 P.L.W. 349 : 16 A.L.J. 409 : 34 M.L.J. 545 : 27 C.L.J. 548 : 22 C.W.N. 697 : 20 Bom. L.R. 587 : 23 M.L.T. 388 : (1918) M.W.N. 382 : 8 L.W. 176 : 45 C. 748 (P.C.); Hira Bibi v. Ram Hari Lal ,

4. Having regard to the facts disclosed in the evidence the learned trial Judge dismissed the plaintiff’s suit. The plaintiff preferred an appeal and the learned District Judge before whom the appeal was brought decreed the plaintiff’s suit upon the ground that under the circumstances the document that was registered must be taken to b8 the document as originally executed.

5. In our opinion, there was no evidence before the Court which could justify such a finding, and on that ground the decision of the learned Additional District Judge cannot be supported.

6. On behalf of the plaintiff, however, it was contended upon the authority of Gopal Chandra Chakravarti v. Surendra Kumar Roy 15 Ind. Cas. 460 : 18 C.W.N. 585 that the appellants-mortgagors were not entitled now to allege that the document was not duly executed, attested or registered. The facts of Gopal Chandra Chakravarti’s case, 15 Ind. Cas. 460 : 18 C.W.N. 585 however were very different. In that case the Court held that the alteration that was made in the date upon which the document purported to have been executed by the mortgagor was explained to and accepted by the mortgagee and for the purpose of that case it must be taken that the mortgage was executed upon the date upon which the parties ultimately agreed that it should be taken to have been executed. In this case, in our opinion, there is no ground upon which the doctrine of estoppel can operate. The parties were wholly illiterate persons and the mortgagors made no representation with respect to the registration of the document to the mortgagee with the intention that the mortgagee should rely upon such misrepresentation. The plaintiff paid the money before the document was taken to the Registry Office, All the parties believed that the document amounted to a mortgage valid in law. It now transpired that the document did not amount to a mortgage and, therefore, was not an instrument creating a mortgage upon which the plaintiff could base his claim.

7. Under the circumstances, we are of opinion that the appeal must be allowed and the suit dismissed. We make no order as to coats.

Cuming, J.

8. I agree. The appeal should be allowed and the suit dismissed.

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