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Issues Involved:
1. Whether a mortgage to be effective must bear either the autograph signature of the mortgagor or his mark according to Section 59 of the Transfer of Property Act, 1882. Issue-wise Detailed Analysis: 1. Whether a mortgage to be effective must bear either the autograph signature of the mortgagor or his mark according to Section 59 of the Transfer of Property Act, 1882: The primary issue in this case is the interpretation of Section 59 of the Transfer of Property Act, 1882, which states: "Where the principal money secured is one hundred rupees or upwards a mortgage can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses." The facts of the case reveal that the mortgagor, being illiterate, directed the scribe to sign the mortgage deed on his behalf. The deed was registered, and the mortgagor acknowledged its execution before the Registrar. The lower courts dismissed the suit, relying on the precedent set in Moti Begam v. Zorawar Singh, which held that a mortgage must bear the personal signature of the mortgagor or someone vested with full power by the mortgagor through a written instrument. The appellants contended that the maxim "qui facit per alium facit per se" (he who does an act through another does it himself) should apply, meaning a signature by an authorized agent should suffice. The Chief Justice discussed the common law principle that an authorized agent's signature is considered the principal's signature unless explicitly excluded by statute. The Chief Justice also examined Section 123 of the Act, which deals with gifts and uses the phrase "signed by or on behalf of the donor." He argued that the absence of similar language in Section 59 does not necessarily imply a different intention by the Legislature. The Chief Justice concluded that the common law rule should apply unless the statute explicitly requires a personal signature, which Section 59 does not. Knox, J. concurred, emphasizing that the words "signed by the mortgagor" should be interpreted to include signatures made by an authorized agent. He argued that there is no indication in the Act that the Legislature intended to exclude the common law rule. Blair, J. and Banerji, J. also agreed with the Chief Justice, with Banerji, J. adding that the authority of an agent can be given verbally according to Section 187 of the Indian Contract Act, and the mortgagor's acknowledgment of the deed's execution constituted ratification of the agent's act. Aikman, J. dissented, maintaining that the difference in language between Sections 59 and 123 indicates the Legislature's intention to require a personal signature for mortgages. He referred to precedents under the Limitation Act, where personal signatures were required unless explicitly stated otherwise. Aikman, J. argued that the courts should not assume a drafting error and should adhere to the plain language of the statute. Conclusion: The majority of the judges concluded that the signature by an authorized agent is sufficient to satisfy the requirements of Section 59 of the Transfer of Property Act, 1882. The appeal was allowed, and the case was remanded to the court of first instance for trial on the merits. The dissenting opinion held that the Legislature intended to require a personal signature for mortgages, and the appeal should be dismissed.
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