{"id":45720,"date":"1969-02-04T00:00:00","date_gmt":"1969-02-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-l-abdul-jabhar-sahib-vs-h-v-venkata-sastri-sons-ors-on-4-february-1969"},"modified":"2016-04-07T00:48:38","modified_gmt":"2016-04-06T19:18:38","slug":"m-l-abdul-jabhar-sahib-vs-h-v-venkata-sastri-sons-ors-on-4-february-1969","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-l-abdul-jabhar-sahib-vs-h-v-venkata-sastri-sons-ors-on-4-february-1969","title":{"rendered":"M. L. Abdul Jabhar Sahib vs H. V. Venkata Sastri & Sons & Ors on 4 February, 1969"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M. L. Abdul Jabhar Sahib vs H. V. Venkata Sastri & Sons & Ors on 4 February, 1969<\/div>\n
Equivalent citations: 1969 AIR 1147, \t\t 1969 SCR (3) 513<\/div>\n
Author: R Bachawat<\/div>\n
Bench: Bachawat, R.S.<\/div>\n
           PETITIONER:\nM. L. ABDUL JABHAR SAHIB\n\n\tVs.\n\nRESPONDENT:\nH. V. VENKATA SASTRI & SONS & ORS.\n\nDATE OF JUDGMENT:\n04\/02\/1969\n\nBENCH:\nBACHAWAT, R.S.\nBENCH:\nBACHAWAT, R.S.\nSIKRI, S.M.\nHEGDE, K.S.\n\nCITATION:\n 1969 AIR 1147\t\t  1969 SCR  (3) 513\n 1969 SCC  (1) 573\n CITATOR INFO :\n F\t    1990 SC1888\t (2)\n\n\nACT:\nTransfer  of Property Act, 1882 (Act 4 of 1882), ss. 3,\t 59,\n73(1) and 100-Security bond charging properties for  payment\nof  Rs.\t 50,000 executed to satisfy condition for  leave  to\ndefend\tsuit  under  O. 7 Madras High  Court  Original\tSide\nRules-S.  59 of the T. P.  Act whether attracted  to  charge\nunder s. 100-Requirements of valid attestation-Security bond\ndid not require attestation but required registration  under\ns.  17(1)(b)  of Registration Act, 1908 (Act  16  of  1908)-\nDecree\tof court mentioning that charge created by  security\nbond  enured for benefit of decree holder-Effect of  decree-\nRateable distribution when permissible-Jurisdiction of\tHigh\nCourt-Property\t situate   outside   limits   of    original\njurisdiction   under   Letters\t Patent-Objection   as\t  to\njurisdiction  whether  could be raised in  circumstances  of\ncase.\n\n\n\nHEADNOTE:\nThe  appellant\tfiled  suit No. 56 of  1953  against  H\t for\nrecovery of certain monies on the basis of promissory notes.\nAs the suit was under 0. 7 of the Madras High Court Original\nSide  Rules  H was given leave to defend  it  on  furnishing\ncertain\t security.  Accordingly H executed in favour of\t the\nRegistrar,  Madras  High  Court, a  security  bond  charging\ncertain\t properties  'for the payment of Rs.  50,000,.\t The\ndocument  was attested by only one witness.  At the time  of\nregistration it was signed by two identifying witnesses\t and\nthe Sub-Registrar.  The trial Judge decreed the\t appellant's\nsuit and the decree mentioned that the charge created by H's\nsecurity  bond\twould enure for the benefit  of\t the  decree\nholder.\t In execution proceedings the properties in question\nwere  sold  and the proceeds deposited in  court.   At\tthis\nstage  the  three respondents who also\theld  money  decrees\nagainst\t H applied to the Court for ratable distribution  of\nthe  assets  realised in the execution\tof  the\t appellant's\ndecree\tin suit No. 56 of 1953.\t The trial  Judge  dismissed\ntheir  applications.   In Letters Patent  Appeals  the\tHigh\nCourt  held  that in the absence of attestation by  the\t two\nwitnesses  the\tsecurity  bond executed\t by  H\twas  invalid\ninasmuch as a charge on property created under s. 100 of the\nTransfer of Property Act attracted the provisions of s.\t 59.\nAs  to\tthe decree passed in suit No,. 56 of 1953  the\tHigh\nCourt  held that in view of the decree holder's omission  to\namend  the plaint by adding a prayer for enforcement of\t the\ncharge the decree should be construed as containing merely a\nrecital of the fact that a security bond had been  executed.\nOn  these findings the High Court held that the\t respondents\nwere  entitled to rateable distribution.  Against  the\tHigh\nCourt's\t orders the appellant filed appeals in\tthis  Court.\nOn  the question of attestation he contended that  the\tsub-\nRegistrar  and\tthe two identifying witnesses must  also  be\ntreated as having attested the security bond.\nHELD  : (i) The essential conditions of a valid\t attestation\nunder s. 3 of the Transfer of Property Act are : (1) two  or\nmore  witnesses have seen the executant sign the  instrument\nor  have received from him a personal acknowledgment of\t his\nsignature;  (2) with a view to attest or to hear witness  to\nthis  fact  each of them has signed 'the instrument  in\t the\npresence of the executant.  It is essential that the witness\nshould have put his signature animo attestendi, that is, for\nthe purpose of attesting that he has seen the executant sign\nor-has\treceived from him a personal acknowledgment  of\t his\nsignature.  If a person puts his signature on the docu-\n514\nmeat  for some other purpose, e.g., to certify that he is  a\nscribe or an identifier or a registering officer, he is\t not\nan attesting witness. [519 C-D]\nPrima  facie the registering officer puts his  signature  on\nthe document in discharge of his statutory duty under s.  59\nof the Registration Act and not for the purpose of attesting\nit  or certifying that he has received from the executant  a\npersonal acknowledgment of his signature.- [520 B-C]\nIn  the\t present  case the evidence did not  show  that\t the\nregistering officer and the identifying witnesses signed the\ndocument  with\tthe intention of attesting it.\tNor  was  it\nshown that the registering officer signed it in the presence\nof the executant.  The document could not therefore be\tsaid\nto have been attested by these witnesses and must be held to\nhave been signed by one attesting witness only. [520 D]\nVeerappa  Chettiar v. Subramania, I.L.R. 52 Mad. 123,  Girja\nDatt  v.  Gangotri, A.I.R.<\/a> 1955 S.C.  346,  Abinash  Chandra\nBidyanidhi  Bhattacharya  v. Dasarath Malo, I.L.R.  56\tCal.\n598,  Shiam Sundar Singh v. Jagannath Singh, 54\t M.L.J,.  43\nand Surendra Bahadur Singh v. Thakur Behari Singh, 1939\t (2)\nM.L.J. 762, referred to.\n(ii)Section  100 of the Transfer of Property Act  does\tnot\nattract the provisions of s. 59. [521 C-D]\nThe  first paragraph of s. 100 consists of two\tparts.\t The\nfirst part concerns the creation of a charge over  immovable\nproperty  which may be by act of parties or by operation  of\nlaw.  No restriction is put on the manner in which a  charge\ncan be made. [521 C]\nWhen  such a charge has been created the second\t part  comes\ninto play.  It provides that all the provisions hereinbefore\ncontained which apply to a simple mortgage shall, so far  as\nmay  be,  apply to such charge.\t The second  part  does\t not\naddress itself to the question of creation of a charge.\t  It\ndoes  not  attract the provisions of S. 59 relating  to\t the\ncreation  of a mortgage.  The second part moreover makes  no\ndistinction between a charge created by act of parties and a\ncharge\tby operation of law.  Obviously the provision of  s.\n59  are\t not  attracted to a charge  by\t operation  of\tlaw.\nLikewise  the legislature could not have intended  that\t the\nsecond\tpart  would  attract the provisions of s.  59  to  a\ncharge created by act of parties. [521 D-E]\nIf  a charge can be made by a registered instrument only  in\naccordance with s. 59, the subsequent transferee will always\nhave  notice of the charge in view of s. 3 of the Act.\t But\nthe basic assumption of the doctrine of notice enunciated in\nthe  second  paragraph is that there may be cases  when\t the\nsubsequent  transferee\tmay not have notice of\tthe  charge.\nThe plain implication of this paragraph is that A charge can\nbe made without any writing. [521 F-G]\nIf  a  non-testamentary instrument creates a charge  of\t the\nvalue  of  Rs.\t100\/-  or  upwards  the\t document  must\t  be\nregistered  under  s. 17(1) (b) of the\tIndian\tRegistration\nAct, 1908.  But there is no provision of law which  requires\nthat  an instrument creating the charge must be attested  by\nwitnesses. [521 G-H]\nThe  object of the second part of the first paragraph of  s.\n100  is to make it clear that the rights and liabilities  of\nthe  parties in case of a charge shall so far as may be\t the\nsame  as  the  rights and liabilities of the  parties  of  a\nsimple\tmortgage.   It\twas not intended  to  prescribe\t any\nparticular mode for the creation of a charge. [522 B]\n515\nIt  followed that the security bond in the present case\t was\nnot  required  to  be attested by witnesses.   It  was\tduly\nregistered and was valid and operative. [522 C]\nViswanadhan  v. Menon, I.L.R. [1939] Mad. 199 and Shiva\t Rao\nv. Shanmugasundaraswami I.L.R. [1940] Mad. 306, disapproved.\nBaburao v. Narayan, I.L.R. 1949 Nag. 802, 819-822, approved.\n(iii)The  decree  in suit No. 56 of 1963  on  its  true\nconstruction  declared\tthat  the security  bond  created  a\ncharge\tover the properties in favour of the plaintiffs\t for\npayment of the decretal amount and gave them the liberty  to\napply  for sale of the properties for the discharge  of\t the\nencumbrance.   Pursuant\t to the decree the  properties\twere\nsold and the assets were held by the court.  The omission to\nask for an amendment of the plaint was an irregularity,\t but\nthat did not affect the construction of the decree. [522  D-\nE]\n(iv)The immovable properties had been sold in execution\t of\na decree ordering sale for the discharge of the\t encumbrance\nthereon\t in favour of the appellant.  Section 73(1)  proviso\n(c)  therefore\tapplied and the proceeds of the\t sale  after\ndefraying  the expenses of the sale must be applied  in\t the\nfirst  instance\t in  discharging  the  amount  due  to\t the\nappellant.   Only  the balance left after  discharging\tthis\namount could be distributed among the respondents. [523 B]\n(v)Since   the\trespondents'  own  case\t rested\t  on   the\nassumption that the properties were lawfully sold they could\nnot  be allowed to raise the objection that the\t High  Court\nhad  no\t territorial  jurisdiction for\tsale  of  properties\noutside\t  the\tlocal  limits  of  its\t ordinary   original\njurisdiction. [522 G]\nSeth  Hiralal Patni v. Sri Kali Nath,<\/a> [1962] 2\tS.C.R.\t747,\n751-52, Bahrein Petrolium Co. Ltd. v. P. J. Pappu,<\/a> [1966]  1\nS.C.R. 461, 462-63 and Zamindar of Etiyapuram v. Chidambaram\nChetty, I.L.R. .43 Mad . 675 (F.B.), referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 272 to\t 274
\nof 1966.\n<\/p>\n
Appeals\t by special leave from the judgment and order  dated
\nJuly 28, 1961 of the Madras High Court in O.S.A. Nos. 65, 70
\nand 71 of 1956.\n<\/p>\n
K.N.  Balasubramaniam and R. Thiagarajan, for the  appel-
\nlant (in all the appeals).\n<\/p>\n
R.Gapalakrishnan,  for respondents Nos. 2 to 4\t(in  C.A.
\nNo. 272 of 1966), respondents Nos. 1 and 2 (in C.A. No.\t 273
\nof 1966) and respondent No. 1 (in C.A. No. 274 of 1966).
\nThe Judgment of the Court was delivered by
\nBachawat,  J. On February 23, 1953 the appellant  instituted
\nC.S. No. 56 of 1953 on the Original Side of the Madras\tHigh
\nCourt under the summary procedure of Order 7 of the Original
\nSide Rules against Hajee Ahmed Batcha claiming a decree\t for
\nRs.  40,556\/1\/2\/- and Rs. 8,327\/12\/9\/- said to be due  under
\ntwo  I promissory notes executed by Haji Ahmed\tBatcha.\t  On
\nMarch  9 1953, Hajee Ahmed Batcha obtained leave  to  defend
\nthe  suit on condition of his furnishing the security for  a
\nsum of
\n516<\/span>
\nRs. 50,000 to the satisfaction of the Registrar of the\tHigh
\nCourt.\t On  March 26, 1953 Hajee Ahmed\t Batcha\t executed  a
\nsecurity bond in favour of the Registrar of the Madras\tHigh
\nCourt charging several immoveable properties for payment  of
\nRs.  50,000.  The condition of the bond was that if he\tpaid
\nto  the\t appellant the amount of any decree  that  might  be
\npassed\tin the aforesaid suit the bond would be void and  of
\nno effect and that otherwise it would remain in full  force.
\nThe bond was attested by B. Somnath Rao.  It was also signed
\nby K. S. Narayana Iyer, Advocate, who explained the document
\nto   Hajee  Ahmed  Batcha  and\tidentified  him.   All\t the
\nproperties charged by the bond are outside the local  limits
\nof  ‘the ordinary original jurisdiction of the\tMadras\tHigh
\nCourt.\tThe document was presented for registration on March
\n29,  1.953  and\t was registered by D. W.  Kittoo,  the\tSub-
\nRegistrar  of Madras-Chingleput District.  Before  the\tSub-
\nRegistrar,  Hajee  Ahmed Batcha admitted  execution  of\t the
\ndocument  and  was identified by  Senkaranarayan,  and\tKaki
\nAbdul  Aziz.   The identifying witnesses as  also  the\tSub-
\nRegistrar  signed the document.\t Hajee Ahmed Batcha died  on
\nFebruary  14,  1954  and  his  legal  representatives\twere
\nsubstituted  in his place in C.S. No. 56 of 1953.  On  March
\n19,  1954 Ramaswami, J. passed a decree for Rs.\t 49,891\/13\/-
\nwith interest and costs and directed payment of the decretal
\namount\ton  or\tbefore April 20, 1954.\t While\tpassing\t the
\ndecree,\t he observed :-“It is stated that the defendant\t has
\nexecuted  a  security bond in respect  of  their  immoveable
\nproperties when they obtained leave to defend and this\twill
\nstand enured to the benefit of the decree-holder as a charge
\nfor the decree amount.”.\n<\/p>\n
Clauses 3 and 4 of the formal decree provided
\n\t      “(3)  that  the  security\t bond  executed\t  in
\n\t      respect  of  their  immoveable  properties  by
\n\t      defendants  2 to 4 in pursuance of  the  order
\n\t      dated 9th March 1953 in application No. 797 of
\n\t      1953 shall stand enured to the benefit of\t the
\n\t      plaintiff\t as  a\tcharge\tfor  the  a  amounts
\n\t      mentioned in clause 1 supra;\n<\/p>\n
\t      (4).that\tin  default of defendants 2  to\t 4
\n\t      paying the amount mentioned in clause 1  supra
\n\t      on  or before the date mentioned in, clause  2
\n\t      supra  the  plaintiff shall be at\t liberty  to
\n\t      apply  for  the appointment  of  Commissioners
\n\t      for, sale of the aforesaid properties.”\n<\/p>\n
The  appellant filed an application for (a) making  absolute
\nthe charge decree dated March 31, 1954 and directing sale of
\nthe  properties;  and (b) appointment of  Commissioners\t for
\nselling\t them.\t On April 23, 1954 the\tCourt  allowed-\t the
\napplication,  appointed\t Commissioners for  selling  of\t the
\nproperties  and directed that the relevant title  deeds\t and
\nsecurity bond be handed over
\n5 17
\nto the Commissioners.  The Commissioners sold the properties
\non  May 29 and 30, 1954.  The sales were confirmed  and\t the
\nsale proceeds were deposited in Court on July 2, 1954.
\nAll  the  three respondents are simple\tmoney  creditors  of
\nHajee  Ahmed Batcha.  The respondents Venkata Sastri &\tSons
\nfiled  O.S.  No’ 13 of 1953 in the Sub-Court,  Vellore,\t and
\nobtained  a  decree  for  Rs.  5,500  on  March\t 27,   1953.
\nRespondent  H.R. Cowramma instituted O.S. No. 14 of 1953  in
\nthe  same  Court and obtained a money decree  on  April\t 14,
\n1953.\t The  two  decree-holders  filed  applications\t for
\nexecution  of  their respective decrees.   One\tRama  Sastri
\npredecessors of respondents H.R. Chidambara Sastri and\tH.R.
\nGopal  Krishna Sastri obtained a money decree against  Hajee
\nAhmed Batcha in O.S. No. 364 of 1951\/52 in the Court of\t the
\nDistrict  Munsiff, Shimoga, got the decree  transferred\t for
\nexecution  through  the\t Court\tof  the\t District   Munsiff,
\nVellore,  and  filed an application for\t execution  in\tthat
\nCourt.\t On  June 7, 1954 the  aforesaid  respondents  filed
\napplications  in the Madras High Court for (i)\ttransfer  of
\ntheir execution petitions pending in the Vellore courts\t to
\nthe  file of the High Court and (ii) an order  for  rateable
\ndistribution  of  the assets realized in  execution  of\t the
\ndecree\tpassed in favour of the appellant in C.S. No. 56  of
\n1953.  The appellant opposed the applications and  contended
\nthat  as the properties were charged for the payment of\t his
\ndecretal  amount, the sale proceeds were not  available\t for
\nrateable  distributing amongst simple money creditors.\t The
\nrespondents contended that the security bond was invalid  as
\nit  was\t not attested by two witnesses and that\t the  decree
\npassed\tin  C.S. No. 56 of 1953 did not create\tany  charge.
\nBalakrishna Ayyar, J. dismissed all the applications as also
\nexemption petitions filed by the respondents.  He held\tthat
\nthe decree in C.S. No. 56 of 1953 did not create a charge on
\nthe  properties.   But following the  decision\tin  Veerappa
\nChettiar v. Subramania(1) he held that the security bond was
\nsufficiently  attested by the Sub-Registrar and the  identi-
\nfying-witnesses.  The respondents filed appeals against\t the
\norders.\t On March 28, 1958 the Divisional Bench hearing\t the
\nappeals referred to a Full Bench the following question
\n\t      “Whether the decision in Veerappa Chettiar  v.
\n\t      Subramania lyer (I.L.R. 52 Mad. 123)  requires
\n\t      reconsideration.”\n<\/p>\n
\t      The Full Bench held
\n\t      “In  our\topinion,  such\tsignatures  of\t the
\n\t      registering   officer  and   the\t identifying
\n\t      witnesses endorsed on a mortgage document\t can
\n\t      be treated as those of attesting witnesses if’
\n\t      (1)  the signatories are those who  have\tseen
\n\t      the   execution\tor   received\ta   personal
\n\t      acknowledgment
\n(1)  I.L.R. 52 Mad. 123.\n<\/p>\n
518<\/span><\/p>\n
\t      from the executant of his having executed\t the
\n\t      document,\t (2) they sign their names  in-\t the
\n\t      presence\tof  the executant and  (3)  while,so
\n\t      doing they had the animus to attest.  The mere
\n\t      presence of the signatures of the\t registering
\n\t      officer  or the identifying witnesses  on\t the
\n\t      registration   endorsements   would   not\t  by
\n\t      themselves   be  sufficient  to  satisfy\t the
\n\t      requirements  of a Valid attestation;  but  it
\n\t      would be competent for the parties to show  by
\n\t      evidence that any or all of these persons\t did
\n\t      in  fact intend to and did sign  as  attesting
\n\t      witness as well.”\n<\/p>\n
The Full Bench held that the decision in Veerappa Chettiar’s
\nCase(1)\t can be held to, be correct to this  limited  extent
\nonly  and  not\totherwise.   At the  final  hearing  of\t the
\nappeals,  the Divisional Bench held that ( 1 ) a  charge  by
\nact  of\t parties  could\t be  created  only  by\ta   document
\nregistered  and attested by two witnesses; (2) the  security
\nbond  was  not attested by two witnesses and  was  therefore
\ninvalid;  (3)  the decree in C.S. No. 56 of 1953  should  be
\nconstrued  as containing nothing more than a recital of\t the
\nfact  of there having been a security bond in favour of\t the
\nplaintiff;  and the sale in execution of the decree must  be
\nregarded  as a sale in execution of a money decree; and\t (4)
\ntie  respondents  were\tentitled to an\torder  for  rateable
\ndistribution.  Accordingly, the Divisional Banch allowed the
\nappeals,  directed  attachment\tof  the\t sale  proceeds\t and
\ndeclared  that\tthe respondents were  entitled\tto  rateable
\ndistribution along with the appellant.\tThe present  appeals
\nhave  been  filed after obtaining special  leave  from\tthis
\nCourt.\n<\/p>\n
The following questions arise in these appeals : (1) Is\t the
\nsecurity  bond attested by two witnesses; (2) if not, is  it
\ninvalid?  (3) does the decree in C.S. No. 56 of 1953  direct
\nsale,of\t the  properties  for the  discharge  of  a  charge-
\nthereon,  and (4) are the respondents entitled\tto  rateable
\ndistribution  of the assets held by court.? As to the  first
\nquestion,  it  is not the case of the  appellant  that\tK.S.
\nNarayana  Iyer is an attesting witness.\t The  contention  is
\nthat  the  Sub-Registrar  D.W. Kittoo  and  the\t identifying
\nwitnesses  Senkaranarayana and Kaki Abdul Aziz attested\t the
\ndocument.   In our opinion, the High Court rightly  rejected
\nthis contention.\n<\/p>\n
Section\t 3  of\tthe  Transfer  of  Property  Act  gives\t the
\ndefinition of the word “attested” and is in these words :-\n<\/p>\n
\t      “Attested”,  in  relation\t to  an\t instrument,
\n\t      means  and  shall\t be  deemed  to\t have  meant
\n\t      attested by two or more witnesses each of whom
\n\t      has seen the executant sign or affix his\tmark
\n\t      to  the  instrument, or has  seen\t some  other
\n\t      person sign the instrument in the presence and
\n\t      by the
\n(1)  I.L.R. 52 Mad. 123.\n<\/p><\/blockquote>\n
\t\t\t    519<\/span><\/p>\n
\t      direction\t of the executant, or  has  received
\n\t      from  the executant a personal  acknowledgment
\n\t      of his- signature or mark, or of the signature
\n\t      of  such\tother person, and each of  whom\t has
\n\t      signed  the instrument in the presence of\t the
\n\t      executant; but it shall not be necessary\tthat
\n\t      more  than  one of such witnesses\t shall\thave
\n\t      been   present  it  the  same  time   and\t  no
\n\t      particular   form\t of  attestation  shall\t  be
\n\t      necessary.”\n<\/p><\/blockquote>\n
It  is to be noticed that the word “attested”, the thing  to
\nbe  defined,. occurs as part of the definition\titself.\t  To
\nattest\tis  to bear witness. to a fact.\t  Briefly  put,\t the
\nessential conditions of a valid attestation under s. 3 are :
\n(1 ) two or more witnesses. have seen the executant sign the
\ninstrument   or\t  have\t received  from\t  him\ta   personal
\nacknowledgment\tof his signature; (2) with a view to  attest
\nor to bear witness to this fact each of them has. signed the
\ninstrument  in\tthe  presence  of  the\texecutant.   It\t  is
\nessential  that the witness should have- put  his  signature
\nanimo attestandi, that is, for the purpose of attesting that
\nhe  has seen the executant sign or has received from  him  a
\npersonal acknowledgment of his signature.  If a person\tputs
\nhis signature on the document for some other purpose,  e.g.,
\nto  certify  that  he  is a scribe or  an  identifier  or  a
\nregistering officer, he is not an attesting witness.
\n“In  every case the Court must be satisfied that  the  names
\nwere written animo attestandi”, see Jarman on Wills, 8th ed.\n<\/p>\n
137.  Evidence is admissible to show whether the witness had
\nthe  intention\tto attest.  “The  attesting  witnesses\tmust
\nsubscribe  with\t the intention that  the  subscription\tmade
\nshould be complete attestation of the will, and evidence  is
\nadmissible  to show whether such was the intention or  not,”
\nsee  Theobald on Wills, 12th ed. p. 129. ,In Giria  Datt  v.
\nGangotri  (1)the  Court held that the two  persons  who\t had
\nidentified  the testator at the time of the registration  of
\nthe  will and had appended their signatures at the  foot  of
\nthe  endorsement  by the Sub-Registrar, were  not  attesting
\nwitnesses.   as\t their\tsignatures  were  not\tput   “animo
\nattestandi”.  In Abinash Chandra Bidvanidhi Bhattacharya  v.
\nDasarath  Malo(2) it was held that a person who had put\t his
\nname under the word “scribe” was not an attesting witness as
\nhe   had  put  his  signature  only  for  the\tpurpose\t  of
\nauthenticating\tthat  he was a “scribe”.   In  Shiam  Sundar
\nSingh v. Jagannath Singh (3) the Privy Council held that the
\nlegatees  who had put their signatures on the will in  token
\nof  their  consent  to\tits  execution\twere  not  attesting
\nwitnesses   and\t were  not  dis-qualifled  from\t taking\t  as
\nlegatees.\n<\/p>\n
The Indian Registration Act, 1908 lays down a detailed\tpro-
\ncedure\tfor  registration  of  documents.   The\t registering
\nofficer is;\n<\/p>\n
(1)  A.I.R. 1955 S.C. 346,351. (3) 54 M.L.J. 43.
\n(2) I.L.R. 56 Cal. 598
\n5<\/span>
\nunder a duty to enquire whether the document is’ executed by
\nthe person by whom it purports to have been executed and  to
\nsatisfy\t himself  as to the identity of\t the  executant,  s.
\n34(3).\t He  can register the document if  he  is  satisfied
\nabout the identity of the person executing the document\t and
\nif that person admits execution, [s. 25(1)].  The signatures
\nof  the\t executant  and\t of  ,every  person  examined\twith
\nreference to the document are endorsed on the document,\t (s.\n<\/p>\n
58).  The registering officer is required to affix the\tdate
\nand his signature to the endorsements (s. 59). Prima  facie,
\nthe  registering officer puts his signature on the  document
\nin  discharge of his statutory duty under s. 59 and not\t for
\nthe  purpose  of  attesting it or  certifying  that  he\t has
\nreceived from the executant a personal acknowledgment of his
\nsignature.\n<\/p>\n
The evidence does not show that the registering officer D.W.
\nKitto  put his signature on the document with the  intention
\nof  attesting  it.   Nor is it proved  that  he\t signed\t the
\ndocument  in  the  presence  of\t the  executant.   In  these
\ncircumstances he cannot be regarded as an attesting  witness
\nsee\tSurendraBahadur Singh v. Thakur Behari Singh(1).
\nLike identifying witnesses    Senkaranarayana and  Kaki
\nAbdul Aziz signatures on the document to authenticate the
\nfact that they have  identified the executant.\t It  is
\nnot shown that they put their signatures for ‘the purpose of
\nattesting  the document.  They cannot therefore be  regarded
\nas attesting witnesses.\n<\/p>\n
It is common case that B. Somnath Rao attested the document.
\nIt  follows  that the document was attested by\tone  witness
\nonly.\n<\/p>\n
As  to\tthe second question, the argument on behalf  of\t the
\nrespondents  is that s. 100 of the Transfer of Property\t Act
\nattracts  s. 59 and that a charge can be created only  by  a
\ndocument  signed, registered and attested, by two  witnesses
\nin  accordance with s. 59 where the principal money  secured
\nis  Rs.\t 100  or  upwards.  The\t High  Court  accepted\tthis
\ncontention following its earlier decisions in Viswanadhan v.
\nMenon(2) and Shiva Rao v. Shanmugasundara swami (3) and held
\nthat  the  security  bond  was, invalid,  as  it  was  swami
\nattested  b one witness only.  We are unable to\t agree\twith
\nthis opinion.  Section 100 is in these terms
\n\t      “Where immoveable property of one person is by
\n\t      act  of  parties\tor  operation  of  law\tmade
\n\t      security for the payment of money to  another,
\n\t      and  the\ttransaction  does not  amount  to  a
\n\t      mortgage, the latter person is said to have  a
\n\t      charge   on   the\t property’,  and   all\t the
\n\t      provisions hereinbefore contained which  apply
\n\t      to a simple mortgage shall, so” far as may be,
\n\t      apply to such charge.\n<\/p>\n
(1) (1939) 2 M.L.J. 762. (2) I.L.R. [1939].Mad. 199.
\n(3)  I.L.R. [1940] mad. 306.\n<\/p>\n
\t\t\t    521<\/span><\/p>\n
\t      Nothing in this section applies to the  charge
\n\t      of  a  trustee  on  the  trust  property\t for
\n\t      expenses\tproperty incurred. in the  execution
\n\t      of his trust, and, save as otherwise expressly
\n\t      provided\tby  any law for the  time  being  in
\n\t      force no charge shall be enforced against\t any
\n\t      property in the hands of a person to whom such
\n\t      property\t  has\t been\t transferred\t for
\n\t      consideration   and  without  notice  of\t the
\n\t      charge.\n<\/p>\n
The  first paragraph consists of two parts.  The first\tpart
\nconcerns the creation, of a charge over immoveable property.
\nA  charge may be made by act of parties or by  operation  of
\nlaw.  No restriction is put on the manner in which a  charge
\ncan  be\t made.\t Where such a charge has  been\tcreated\t the
\nsecond\tpart  comes  into play.\t It provides  that  all\t the
\nprovisions  hereinbefore contained which apply to  a  simple
\nmortgage shall; so far as may be, apply to such charge.\t The
\nsecond\tpart  does  not address itself to  the\tquestion  of
\ncreation of a charge.  It does not attract the provisions of
\ns. 59 relating to the creation of a mortgage.
\nWith regard to the applicability of the provisions relating
\nto a simple mortgage, the second part of the first paragraph
\nmakes  no  distinction between a charge created\t by  act  of
\nparties\t and a charge by operation of law.  Now a charge  by
\noperation  of  law is not made by a signed,  registered\t and
\nattested instrument.  Obviously, the second part has not the
\neffect\tof  attracting\tthe provisions of s. 59\t to  such  a
\ncharge.\t  Likewise the legislature could not have intended
\nthat  the second part would attract the provisions of s.  59
\nto  a charge created by act of parties.\t Had this  been\t the
\nintention of the legislature the second part would have been
\ndifferently worded.\n<\/p>\n
If  a charge can be made by a registered instrument only  in
\naccordance with s. 59, the subsequent transferee will always
\nhave  notice  of  the charge in view of\t s.  3\tunder  which
\nregistration  of the instrument operates as such  a  notice.
\nBut   the  basic  assumption  of  the  doctrine\t of   notice
\nenunciated  in\tthe second paragraph is that  there  may  be
\ncases where the subsequent transferee may not have notice of
\nthe charge.  The plain implication of this paragraph is that
\na charge can be made without any writing.\n<\/p>\n
If  a  non-testamentary instrument creates a charge  of\t the
\nvalue of Rs. 100 or upwards, the document must be registered
\nunder  s.  17 (1) (b) of the Indian Registration  Act.\t But
\nthere  is  no  provision  of  law  which  requires  that  an
\ninstrument   creating  the  charge  must  be   attested\t  by
\nwitnesses.\n<\/p>\n
Before\ts.  100 was amended by Act 20 of 1929  it  was\twell
\nsettled\t that the section did not prescribe  any  particular
\nmode  of creating a charge.  The amendment  substituted\t the
\nwords “all
\n522<\/span>
\nthe  provisions\t hereinbefore  contained which\tapply  to  a
\nsimple\tmortgage  shall,  so far as may be,  apply  to\tsuch
\ncharge,”  for  the words “all  the  provisions\thereinbefore
\ncontained  as to a mortgagor shall, so far as may be,  apply
\nto  the\t owner\tof  such property,  and\t the  provisions  of
\nsections  81  and 82 shall, so far as may be, apply  to\t the
\nperson having such charge.” The object of the amendment\t was
\nto  make  it clear that the rights and\tliabilities  of\t the
\nparties\t in ,case of a charge shall,, so far as may be,\t the
\nsame  as  the rights, and liabilities of the parties  to  a
\nsimple\t mortgage.   The  amendment  was  not  intended\t  to
\nprescribe any particular mode for the creation of a  charge.
\nWe  find  that\tthe  Nagpur High Court\tcame  to  a  similar
\nconclusion  in Baburao v. Narayan(1).  It follows  that\t the
\nsecurity bond was not required to be attested by  witnesses.
\nIt was duly registered and was valid and operative.
\nAs  to\tthe third question, we find that  the  decree  dated
\nMarch 19, 1954 declared that the security bond in respect of
\nthe  immovable I properties would enure for the\t benefit  of
\nthe  appellant as a charge for the decretal  amount.   This
\nrelief\twas granted on the ,oral prayer of  the\t plaintiffs.
\nWe are unable to agree with the High Court that in view\t of
\nthe  omission  to amend the plaint by adding  a\t prayer\t for
\nenforcement of the charge, the decree should be construed as
\ncontaining merely a recital of the fact that a security bond
\nhad  been executed.  In our opinion, the decree on its\ttrue
\nconstruction  declared\tthat  the security  bond  created  a charg
\ne over the properties in favour of the plaintiffs  for
\npayment of the decretal amount and gave them the liberty to
\napply  for sale of the ‘properties for the discharge of\t the
\nencumbrance.   Pursuant to the decree the  properties  were
\nsold and the assets are now held by the Court.\tThe omission
\nto ask for, an amendment of the plaint was an  irregularity,
\nbut that does not affect the construction of the decree.
\nIt  was\t suggested that the decree was invalid as  the\tHigh
\nCourt had no territorial jurisdiction under clause 12 of its
\nLetters\t Patent to pass a decree for  sale  of\tproperties
\noutside\t  the\tlocal  limits  of  its\t ordinary   original
\njurisdiction.\tFor  the purpose of these appeals,  it\tis
\nsufficient  to\tsay that the respondents cannot\t raise\tthis
\nquestion  in  the  present proceedings.\t If  the  decree  is
\ninvalid\t and the  sale\tis illegal  on\tthis  ground,  the
\nrespondents cannot maintain their applications for  rateable
\ndistribution  of the assets. They ,,can ask for division  of
\nthe   sale  proceeds  only  on\tthe  assumption that   the
\nproperties were lawfully sold.\tIt is therefore\t unnecessary
\nto  decide  whether  the objection  as\tto  the\t territorial
\njurisdiction  of  the  High Court has  been  waived  by\t the
\njudgment-debtor\t and  cannot  now be  agitated\tby  him\t and
\npersons\t  claiming  through  him, having  regard  to   the
\ndecisions in Seth Hiralal Patni v. Sri Kali<\/a>
\n(1)I.L.R. [1949] Nag. 802,1819-822.,
\n\t\t\t    523<\/span>
\nNath(1),  Behrein Petroleum Co. Ltd., v. P. J. Pappu<\/a>  (2)  ,
\nZamindar of Etiyapuram v. Chidambaram Chetty(1).
\nAs  to\tthe  4th  question  we\tfind  that  the\t  immoveable
\nproperties have been sold in execution of a decree  ordering
\nsale for the discharge of the encumbrance thereon in  favour
\nof  the\t appellant.   Section 73(1)  proviso  (c)  therefore
\napplies\t and  the  proceeds  of\t sale  after  defraying\t the
\nexpenses  of the sale must be applied in the first  instance
\nin  discharging the amount due to the appellant.   Only\t the
\nbalance\t left  after  discharging this amount  can  be\tdis-
\ntributed amongst the respondents.  It follows that the\tHigh
\nCourt  was  in error in holding that  the  respondents\twere
\nentitled  to rateable distribution of the assets along\twith
\nthe appellant.\n<\/p>\n
In the result, the appeals are allowed, the orders passed by
\nthe Divisional Bench of the Madras High Court are set  aside
\nand  the  orders  passed by the\t learned  Single  Judge\t are
\nrestored.  There will be no order as to costs.\n<\/p>\n
G.C.\t\t\t\t\t  Appeals allowed.\n(1)  [1962] 2 S.C.R. 747,751-2.\n(2)  [1966] 1 S.C.R. 461,462-3.\n(3)  I.L.R. 43 Mad. 675 (F.B).\n524<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M. L. Abdul Jabhar Sahib vs H. V. Venkata Sastri & Sons & Ors on 4 February, 1969 Equivalent citations: 1969 AIR 1147, 1969 SCR (3) 513 Author: R Bachawat Bench: Bachawat, R.S. PETITIONER: M. L. ABDUL JABHAR SAHIB Vs. RESPONDENT: H. V. VENKATA SASTRI & SONS & ORS. DATE OF […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-45720","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM. L. Abdul Jabhar Sahib vs H. V. 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