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TMI Blog1969 (2) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... bond was that if he paid to the appellant the amount of any decree that might be passed in the aforesaid suit the bond would be void and of no effect and that otherwise it would remain in full force. The bond was attested by B. Somnath Rao. It was also signed by K. S. Narayana Iyer, Advocate, who explained the document to Hajee Ahmed Batcha and identified him. All the properties charged by the bond are outside the local limits of the ordinary original jurisdiction of the Madras High Court. The document was presented for registration on March 29, 1953 and was registered by D. W. Kittoo, the Sub-Registrar of Madras-Chingleput District. Before the Sub-Registrar, Hajee Ahmed Batcha admitted execution of the document and was identified by Senkaranarayan, and Kaki Abdul Aziz. The identifying witnesses as also the Sub-Registrar signed the document. Hajee Ahmed Batcha died on February 14, 1954 and his legal representatives were substituted in his place in C.S. No. 56 of 1953. On March 19, 1954 Ramaswami, J. passed a decree for ₹ 49,891/13/- with interest and costs and directed payment of the decretal amount on or before April 20, 1954. While passing the decree, he observed: It is st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eable distribution of the assets realized in execution of the decree passed in favour of the appellant in C.S. No. 56 of 1953. The appellant opposed the applications and contended that as the properties were charged for the payment of his decretal amount, the sale proceeds were not available for rateable distribution amongst simple money creditors. The respondents contended that the security bond was invalid as it was not attested by two witnesses and that the decree passed in C.S. No. 56 of 1953 did not create any charge. Balakrishna Ayyar, J. dismissed all the applications as also exemption petitions filed by the respondents. He held that the decree in C.S. No. 56 of 1953 did not create a charge on the properties. But following the decision in Veerappa Chettiar v. Subramania I.L.R. Mad. 123 he held that the security bond was sufficiently attested by the Sub-Registrar and the identifying witnesses. The respondents filed appeals against the orders. On March 28, 1958 the Divisional Bench hearing the appeals referred to a Full Bench the following question : Whether the decision in Veerappa Chettiar v. Subramania Iyer I.L.R. Mad. 123 requires reconsideration. The Full Bench held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assets held by court ? As to the first question. it is not the case of the appellant that K.S. Naravana Iyer is an attesting witness. The contention is that the Sub-Registrar D.W. Kittoo and the identifying witnesses Senkaranarayana and Kaki Abdul Aziz attested the document. In our opinion. the High Court rightly rejected this contention. 6. Section 3 of the Transfer of Property Act gives the definition of the word attested and is in these words : Attested . in relation to an instrument. means and shall be deemed 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 seen 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. It is to be noticed that the word attested , the thing to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and to satisfy himself as to the identity of the executant, Section 34(3). He can register the document if he is satisfied about the identity of the person executing the document and' if that personal admits execution, [Section 25(1)]. The signatures of the executant and of every person examined with reference to the document are endorsed on the document, (Section 58). The registering officer is required to affix the date and his signature to the endorsements (Section 59). Prima facie, the registering officer puts his signature on the document in discharge of his statutory duty Under Section 59 and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature. 9. The evidence does not show that the registering officer D;W. Kitto put his signature on the document with the intention of attesting it: Nor is it proved that he signed the document in the presence of the executant. In these circumstances he cannot be regarded as an attesting witness, see Surendra Bahadur Singh v. Thakur Behari Singhi (1939) 2 M.L.J. 762 Likewise the identifying witnesses Senkaranarayana and Kaki Abdul Aziz; put their signatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 59 relating to the creation of a mortgage. 13. With regard to the applicability of the provisions relating to a simple mortgage, the second part of the first paragraph makes no distinction between a charge created by act of parties and a charge by operation of law. Now a charge by operation of law is not made by a signed. registered and attested instrument. Obviously, the second part has not the effect of attracting the provisions of Section 59 to such a charge. Likewise the legislature could not have intended that the second part would attract the provisions of Section 59 to a charge created by act of parties. Had this been the intention of the legislature the second part would have been differently worded. 14. If a charge can be made by a registered instrument only in accordance with Section 59, the subsequent transferee will always have notice of the charge in view of Section 3 under which registration of the instrument operates as such a notice. But the basic assumption of the doctrine of notice enunciated in the second paragraph is that there may be cases where the subsequent transferee may not have notice of the charge. The plain implication of this paragraph is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for an amendment of the plaint was an irregularity, but that does not affect the construction of the decree. 18. It was suggested that the decree was invalid as the High Court had no territorial jurisdiction Under Clause 12 of its Letters Patent to pass a decree for sale of properties outside the local limits of its ordinary original jurisdiction. For the purpose of these appeals, it is sufficient to say that the respondents cannot raise this question in the present proceedings. If the decree is invalid and the sale is illegal on this ground, the respondents cannot maintain their applications for rateable distribution of the assets. They can ask for division of the sale proceeds only on the assumption that the properties were lawfully sold. It is therefore unnecessary to decide whether the objection as to the territorial jurisdiction of the High Court has been waived by the judgment-debtor and cannot now be agitated by him and persons claiming through him, having regard to the decisions in Seth Hiralal Patni v. Sri Kali Nath [1962]2SCR747 , Bahrain Petroleum Co. Ltd., v. P. J. Pappu (1966)IILLJ144SC , Zamindar of Etiyapuram v. Chidambaram Chetty I.L.R. Mad. 675 19. As to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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