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TMI Blog1902 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... e direction and in the presence of the mortgagor. The following are the words which were written by the scribe in signing the deed on behalf of the mortgagor: " Signed by Kukur Bind alias Umar Bind; the deed of simple mortgage is correct; by the pen of Shiunandan Lal, patwari." The deed was duly registered on the 28th of August 1896, when Kukur Bind appeared before the Registrar and acknowledged the due execution of the deed. The Court of first instance dismissed the suit on the ground that the mortgage had not been executed in accordance with the provisions of Section 59 of the Transfer of Property Act, relying on the decision in the case of Moti Begam v. Zorawar Singh Weekly Notes 1899 p. 196. On appeal the lower appellate Court upheld the decision of the Munsif. Hence the present appeal. 2. The words of Section 59 which bear upon the question run as follows: "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." In the decision to which I have referred it was held by a Bench of this Court that "where a mortgage was si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act, which deals with mortgages of immovable property and charges, which throw any light upon the provisions of Section 59. Section 123 runs as follows: "For the purpose of making a gift of immovable property the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses." It is contended that, inasmuch as the Legislature used in this section the words "on behalf of" and did not use these words in Section 59, the difference of language must be prima facie regarded as indicative of intended difference of meaning. In his judgment in the case to which I have referred, my brother Aikman observes: "The difference in the language of these two sections is striking. In the case of a gift the instrument must be signed by or on behalf of the donor. In the case of a mortgage, like the one in suit, the instrument must be signed {by the mortgagor Why the Legislature made this distinction I am unable" he says "to understand; but the distinction is there and I am reluctantly forced to the conclusion that in the case of a mortgage the law requires the personal signature of the mortgagor. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in the same sense, and that therefore we may look through the other sections to see in what sense the word is there used." In the case of Hyde v. Johnson, upon which so much reliance has been placed, the Court was considering one of a series of enactments which made a distinction between the signing of a document by a party personally and the signing by an agent; and it was therefore considered that where signature by an agent was not mentioned the Act intended that the signature should be an autograph signature. The Act which we are considering is not of that nature. The Statute in that case required an acknowledgment to be signed "by the party chargeable thereby." The mischief aimed at by the Statute was to exclude temptation to perjury in the proof of agency, and it was contended in that case that if the signature of an agent were admitted, parol evidence also must be admitted to prove the agent's authority, and that then all the inconvenience would be reproduced which the Statute was passed to obviate. Moreover, in that case the 7th Section of the Statute, 9 Geo. IV, Cap. XIV, under which the controversy arose, recites the 17th Section of the Statute of Fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bles A party to sign through the instrumentality of an agent, and by virtue of this rule a donor could authorize another to sign for him. Therefore the rule in question was manifestly before the minds of the framers of the Act. If the rule was before the minds of the framer of the Act, it appears to me obvious that if the intention had been to exclude its operation in the case of a mortgagor, it would have expressed that intention by requiring signature by the mortgagor personally, or with his own hand. The Legislature has however, abstained from doing this', and therefore, as it seems to me, so far from there being anything in the Act to show an intention to exclude the rule, the reasonable inference to be drawn from the language of the Act is quite the contrary. If in Section 123 the words "by his agent duly authorized in that behalf" had been inserted, I could better have understood the argument which has been advanced on behalf of the respondents. In the case of The Queen v. The Justices of Kent (1873) L.R. 8 Q.B. 305 the question of signature by an agent was considered. In that case the Commissioners of the Rother Levels made a rate of certain sums per acre on al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a similar question arose on the Bankruptcy Rules of 1883, Rule 125 provides that "a creditor's petition shall be in form No. 10 in the Appendix with such variations as circumstances may require." Form No. 10 provides that "the petition shall be signed by the petitioner, and that his signature shall be attested by a witness," and the attestation clause contains the words "signed by the petitioner in my presence." In this case a petition in bankruptcy was presented by one William Richards against one Wallace, who carried on business in the city of London. The petition was signed "William Richards by his attorney Thomas Picton Richards." The signature was attested by a witness, and the attestation clause was as follows: "Signed by the petitioner by his attorney Thomas Picton Richards in my presence." The objection was taken by the debtor to the petition that it was not duly signed as required by Rule 125. The Registrar overruled the objection. Whereupon the debtor appealed. It was held by the Court of appeal, consisting of Baggallay, Bowen and Fry, L. JJ., that the petition was properly signed, that a bankruptcy petition by a cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore to be held to require personal signature. In the present Statute there is nothing in the way in which the memorandum of association is dealt with to show that the Legislature intended anything special as to the mode of signature." 3. It appears to me upon these authorities to be indisputable that if there is no clear indication that the Legislature intended that the signature shall be an autograph signature, the common law rule qui facit per alium facit per se should be applied. If the Legislature in this case had intended that an illiterate mortgagor in this country should not enjoy the privilege of employing an amanuensis to sign his name, it seems to me that it would have expressed its intention by the introduction of some such words in the section after the word "signed" as "personally" or "with his own hand." The introduction of the loose words to which I have referred in Section 123 appears to me to furnish totally inadequate grounds for the conclusion that the Legislature intended to exclude the application of the rule to Section 59. In an unreported case in this High Court Khunni Led v. Jhao Lal S.A. No. 48 of 1895 a Bench of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " were never intended, either expressly or by implication, to conflict or to mark any difference between them and the words "signed by the (mortgagor)." In the present case I am not concerned with Section 123. The words used in Section 59 "signed by the mortgagor," when read by themselves, are clear and free from ambiguity. This being so, it is my duty to infer that the Legislature intended to mean what it has plainly expressed and to interpret these words as I should interpret them in any other document or Act. So interpreted they would mean signed by the mortgagor or by another for him and by his authority. To limit them to the mortgagor personally requires that there should be something either in the language or in the object of the Act which showed that a personal act was intended. There is nothing in the language of the section which expresses such an intention, and nothing that I know of--nothing has been pointed out to me--which expresses that such an intention was in the mind of the framers of the Act. The Act is set out in its preamble as an Act intended to define and amend certain parts of the law relating to the transfer of property by act of par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in Moti Begam v. Zorawar Singh Weekly Notes 1899 p. 196 and have dismissed the suit. The ruling referred to undoubtedly supports the decision of the Courts below. It may, however, be observed that a contrary opinion was expressed by this Court in S.A. No. 48 of 1895, decided by Knox and Burkitt, JJ., on the 3rd of April, 1897. That case unfortunately has not been reported. 8. Doubts having been entertained as to the correctness of the ruling in Moti Begam v. Zorawar Singh, this case was referred to a Full Bench. The question we have to determine is, whether a mortgage is validly effected, where the principal, money secured is ₹ 100 or upwards, if the mortgage deed is not signed personally by the mortgagor, but is signed for him by another under his authority, such authority not having been granted by deed in writing. 9. With all respect for the learned Judges who decided the case of Moti Begam v. Zorawar Singh I am unable to agree with the view adopted by them in that case. With reference to the provisions of Section 59 of the Transfer of Property Act, the learned Judges do not appear to have held the same view. Whilst Mr. Justice Knox was of opinion that the Legislatu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at common law, where a person authorizes another to sign for him, the signature of the person so signing is the signature of the person authorizing it; nevertheless there may be cases in which a statute may require personal signature." Quain, J., said in the same case: "We ought not to restrict the common law rule, qui faeit per alium facit per se unless the Statute makes a personal signature indispensable." Similar observations were made by Archibald, J. In In re Whitley Partners, Ld. (1886) L.R. 32 Ch. D. 337, Cotton, L.J., said: "I think it would be wrong to hold that an enactment simply referring to signature is not satisfied by signature by means of an agent." He added: "Suppose seven persons sitting round a table with a view to signing a document, and one of them says to another 'sign it for me,' are we to say that the signature affixed under this authority is insufficient? I am of opinion that it is quite effectual." These cases are clear authority for holding that where an enactment provides that a document should be signed by the executant, that alone does not make it indispensable that the signature should be affixed by the execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as far as I am aware, no other case in this Court in which, before the ruling in Moti Begam's case, the validity of a mortgage was questioned on the ground now raised, and that since the decision of that case the question has been raised on the basis of it in a large number of cases now pending in this Court. I may add that I am not aware of, nor have we been referred to any case decided by any of the other High Courts in which the question now before us was raised, or the view adopted in Moti Begam's case found favour. Now, did the Legislature by enacting Section 59 intend to abrogate the existing practice and make a new departure? In support of the contention that such was the intention of the Legislature, reference has been made to Section 123 of the same Act, which provides that--"For the purpose of making a gift of immovable property the transfer must be effected by registered instrument signed by or on behalf of the donor, and attested by at least two witnesses." From the difference in the language of the two sections and the use in Section 123 of the words "or on behalf of," which do not appear in Section 59, it is urged that the law requires th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .C. 776 and on that of the Privy Council in Luchmee Buxsh Roy v. Runjeet Ram Panday (1867) 8 W.R. 1 which followed Hyde v. Johnson. He also relied on Budoobhoosun Bose v. Enaet Moonshee (1867) 8 W.R. 1. Those were cases relating to the Law of Limitation, and proceeded upon the principle that "where there is a statutory bar, and there is a statutory exception to that bar by an acknowledgment of a certain character, the acknowledgment must, to be effectual, be strictly in accordance with the wording of the Statute." (Banning on the Limitation of Actions, 2nd edition, p. C8.) The rule of interpretation adopted in the cases referred to cannot therefore be held to be applicable to a case like the present. Even in regard to an acknowledgment within the meaning of the Law of Limitation, it appears to have been held in Ireland that "if a person signs the name of the principal by his direction in his presence, it is sufficient, for the person signing must be looked on, not as the agent, but as it were the hand or instrument of the principal himself." Lessee of Corporation of Dublin v. Judge 11 Ir. L.R. 8 cited in Darby and Bosanquet's Statutes of Limitation, 2nd edit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtners, Ld. (1886) L.R. 32 Ch. D. 337 Bowen, Lord Justice, says: "In every case where an Act requires a signature, it is a pure question of construction on the terms of the particular Act whether its words are satisfied by signature by an agent." It being clear then that, notwithstanding the maxim qui facit per alium facit per se, there may be Acts which require the personal signature of an executant, the question for decision here is whether Act No. IV of 1882 does require such a signature in the case of a mortgage. Had we only to construe Section 59 of the Act, I should have no difficulty in coming to the conclusion on the authority of the case last mentioned, that the provisions of the section are sufficiently complied with if the deed is signed by the authority of the mortgagor. But that section does not stand alone. In the case of Hyde v. Johnson (1836) 2 Bing. N.C. 776 the Court was considering one of a series of enactments dealing with the same subject. As one of those enactments referred to signature by an agent and another enactment with was in pari materid did not, it was held that under the latter Statute personal signature was required. The present case is eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act that the necessary deed must be signed by the executant. As to another species of transfer the Legislature has seen fit to allow the necessary deed to be signed "by or on behalf of" the executant (vide Section 123). It must be admitted that we have here a striking difference in the language of the, two sections. As observed by my brother Knox in his judgment in the case of Moti Begam v. Zorawar Singh "it must be presumed that the difference in language was intentional." In my humble opinion we are bound to give effect to this differ-once. I do not think that it would be in accord with the true canons of construction, to hold 'that the Legislature, in using such different language in those two sections, meant exactly the same thing. It was suggested that the difference in the language might have arisen from careless drafting. I do not think that a Court is entitled to make any such assumption. If, however, the Legislature has made a mistake, then, in my humble judgment, it is for the Legislature, and not for the Courts, to correct that mistake. As was observed by Lord Brougham in the case of Crawford v. Spooner (1846) 6 Moo. P.C. 1 at p. 9 : "We cann ..... X X X X Extracts X X X X X X X X Extracts X X X X
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