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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 ..... 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 signed on behalf of a mortgagor, who was illiterate, by the scribe of the docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 my opinion, he goes on to say, the case relied on by the appellant Hyde v. Johnson (1836) 2 Bing. N.C. 776 is in point. To hold that the Legisla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Frauds, and the Court held that the Legislature must therefore have had that section in view at the very time of passing the Statute, and therefore must have intended the distinction between writings signed by a party or si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 all lands lying within their jurisdiction, and the lands of one Wells, amongst others, were so rated. Wells, appealed against the rate to the Quarter Sessions. According to the provisions of Section 1 of the Statute 12 and 13 Vict., Cap. XLV, under which the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested 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 creditor might be signed on his behalf by his duly constituted attorney. Baggallay, L.J., in the course of his judgment, remarks: The next question is, whether the signature of a bankruptcy petition by an attorney on behalf of the petitioner is a sufficient signature. I can entertain no doubt whatever that it is, provided that the power of attorney authorizes th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ph 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 Court, consisting of my brothers Knox and Burkitt, decided this very question, and held that the signing of a mortgage on behalf of an illiterate person by the scribe of the deed at the instance of the mortgagor was a good signature within the meaning of Section 59. The learned Judges in their judgment say that it is true that the manual act of signing was effected in this case by the hand of another, but the lady by her acts has acknow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 parties. Before Act No. IV of 1882 came into force, a transfer by mortgage was a good and valid instrument, whether it, were executed by the mortgagor personally, or by some one signing for him. If there had been an intention to curtail this freedom, express words of limitation would have been used; and it would not have been left to be inferred by a construction drawn from words contained in another remote section of the Act dealing with another class of transfer. If the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am 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 Legislature purposely intended that no one but the mortgagor, or some one vested by the mortgagor by deed in writing with foil power to act as and for the mortgagor, can execute such a document, Mr. Justice Aikman held that Section 59 requires the personal signature of the mortgagor. 10. In my opinion there is no warrant for holding that if the mortgagor authorized another to affix his signature to-the instrument of mortgage, the authority should have been give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. (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 executant himself. Upon the question before us, the two cases referred to above are, in my opinion, very instructive, and are more in point than the case of Hyde v. Johnson (1836) 2 Bing. N.C. 776 on which reliance has been placed on Delia]f of the respondents. 14. In The Queen v. The Justices of Kent the question was, whether a notice of appeal, signed in the appellant's name by the clerk to his attorney and not by the appellant himself, was sufficient under the Statute 12 and 13 Vic, Cap. XLV., Section 1, which re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the personal signature of the mortgagor in the case of a mortgage. With regard to this contention it may first be observed that as the two sections deal with different matters, the language used in one of them cannot, according to ordinary rules of construction, be looked at as a guide to the construction of the other. In the next place, the words on behalf of in Section 123 are, in my opinion, surplusage. Many instances may be found of provisions put into Statutes merely by way of precaution. (See Hardcastle on the construction and effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erpretation 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 edition, p. 382. Upon the authority of the same case it is said in Banning on Limitation (2nd ed., p. 127), with reference to the general rule which at one time prevailed that an acknowledgment must be signed personally by the debtor, that notwithstanding this, a signature may, it seems, be so signed by an agent under the immediate direction and the supervision of the principal as to be in effect the signature of the principal, especially where the latter is incapacitated by illness or otherwise from signing himself. 18. I am of opinion that Section 59 of the Transfer of Property Act does not require the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 even stronger than the case of Hyde v. Johnson for here we have not to consider different Statutes, but one and the same Act dealing with one subject. The present case stands more on a par with the cases which, were decided under Act No. XIV of 1859. That Act in dealing with acknowledgments which extend the period of limitation, provided as to two of the acknowledgments in Section 1, Sub-section (15) and Section 4, that the acknowledgment should be signed by the person making it. In Section 19 a third acknowledgment is referred to, and this last section provides that the acknowledgment may be signed by the person making it or his ag ..... 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