KUMAR HARISH CHANDRA SINGH DAS & ORS. versus BANSIDHAR MOHANTY AND ORS.

Citation: [1966] 1 S.C.R. 153 · Decided: 05-05-1965 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Dismissed

Judgment (excerpt)

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153 
KUMAR HARISH CHANDRA SINGH DAS & ORS. 
v. 
BANSIDHAR MOHANTY AND ORS. 
May 5, 1965 
(K. N. WANCHOO, J. C. SHAH AND J. R. MUDHOLKAR, JJ.] 
Transfer of Property Act (4 of 1882), ss. 3 and 59-Mortgage deed in 
name of benamidar--Altestation by lender of money-V alidiiy-Suit by 
lender-If 1naintainable. 
The first respondent le>nt money to the appellant and obtained a mort-
gage deed from him in the name of the second 
respondent. 
The first 
respondent was himself one of the two attesting witnesses. On the failure 
of the appellant to repay the amount, the first respondent instituted a suit 
and the suit was decreed by the High Court. 
In his appeal to the Supreme Court, the appellant contended that : (i) 
the mortgage deed was not validly attested and (ii) the first respondent 
was not entitled to sue. 
HELD : (i) A person who has lent money, for securing the payment 
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of which a mortgage deed was executed by the mortgagor, but who was 
not a party to the deed, could be an attes-tor. [l56C, G-H] 
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There is a distinction bet\veen a person who is a party to a deed and a 
person who, though not a party to the deed is a party to the transaction 
and the latter is not incompetent to attest the deed. 
The object of attes-
tation is to protect the executant from being required to execute a docu-
ment by the other party thereto by force, 
fraud 
or undue influence. 
Though, neither the definition of "atte3ted" in s. 3 nor s. 59 of the Trans-
fer of Property Act debars a party to a mortgage deed from attesting it, 
since the testimony of parties to a document cannot dispense with 
the 
necessity of examining at least one attesting witness to prove the execu-
tion of the deed, it must be inf•3rred that a party is debarred from attest-
ing a document which is required by Jaw to be attested. 
\Vhere, however, 
a person is not a party to the deed, there is no prohibition in law to the 
proof, of !he execution of the document, 
by that p<,,son. 
[155H; 
156 A-Bl 
(ii) When a transaction is a mortgage, the actual lender of the money 
is entitled to su·o upon it. [157E] 
A person who provides consideration for a transactioll is entitled to 
maintain a .suit concerning the transaction. In Gur Narayan and Ors,. v. 
Sheo Lal Singh mtd Ors. ( 46 I.A. I) the Privy Council only recognised the 
right of a benamidar also to sue1 but did not hold that the benamidar alone 
could sue and not the beneficial owner. f157 D-FJ 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 304 of 
1963. 
Appeal from the judgment and decree dated July 26, 1960 of 
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the Orissa High Court in First Appeal No. 6 of 1954. 
Sarioo Prasad, S. Murty and B. P. Maheshwari, 
for 
the 
appellants. 
154 
SUPREME 
COURT 
REPORTS 
[1966] l S.C.R. 
A. V. Viswanatha Sastri and R. Gopa/akrishan, for the res-
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pondent no. I. 
The Judgment of the Court was delivered by 
Mudholkar, J. 
Two questions are raised before us in this 
appeal from the judgment of the Orissa High Court. 
One is 
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whether the mortgage deed upon which the suit of the respondent 
no. I was based was validly attested. 
The other is whether the 
respondent no. I was entitled to institute the suit. 
The mortgage deed in question was executed by the appellant 
in favour of Jagannath Debata, respondent no. 2 on April 30, 
1945, for a consideration of Rs. 15,000. 
The appellant under-
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took to repay the amount advanced together with interest within 
one year from the execution of the deed. 
The appellant, how-
ever, failed to do so. 
Respondent no. I therefore instituted the 
suit out of which this appeal arises. 
According to respondent no. I though the money was advanced 
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by him to the appellant he obtained the deed in the name of the 
second respondent J agannath Debata because he himself and the 
appellant were close friends and he felt it embarrassing to ask the 
appellant to pay interest on the money advanced by him. 
As tho 
consideration for the mortgage deed proceeded from him he claim-
ed the right to sue upon the deed. He, however, joined Jagannath I: 
Debata as the third defendant to the suit. He also joined Dr. 
Jyotsna Dei as second defendant because she is the transferee ot 
the mortgaged property-which consists of a house, from the 
appellant whose wife she is. This lady however remained ex parte. 
The appellant denied the claim on various grounds but we are only 
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concerned with two upon which arguments were addressed to us. 
Those are the grounds which w

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