M. L. ABDUL JABHAR SAHIB versus H. V. VENKATA SASTRI & SONS & ORS.

Citation: [1969] 3 S.C.R. 513 · Decided: 04-02-1969 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Appeal(s) allowed

Cited by 4 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
c 
D 
G 
H 
M. L. ABDUL JABHAR SAHIB 
v. 
H; V. VENKATA SASTRI & SONS & ORS. 
Februar,y 4, 1969 
[S. M. S!KRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.] 
Transfer of Properly Act, 1882 (Act 4 of 1882), ss. 3, 59, 73(1) and 
100-Security bond charging properties for payment of Rs. 50,000 execuz-
ed to satisfy condition for leave to defend suit under 0. 7 Madras High 
Court Original Side Rules-S. 59 of the T. P. Act lvhether attracted to 
charge under s. 100-Requirernents of valid attestation-Security bond did 
not require attestation but required regist.J'ation under s. 17(1) (b) of Re-
gistration Act, 1908 (Act 16 of 1908)-Decree of court mentioning ;hat 
charge created by security bond enured for benefit of decree 
holder-
Effect of decree-Rateable distribution when pennissible-Jurisdiction of 
High Court-Property situate outside li1nits of original jurisdiction under 
Letters Patent--Objection as to jurisdiction whether could be raised 
in 
circumstances of case. 
The appellant filed suit No. 56 of 1953 against H for recovery of cer-
tain moni..es on the basis of promissory notes. As the suit was under 0. 7 
of the Madras High Court Original Side Rules H was given leave to defend 
it on furnishing certain security. Accordingly H executed in favour of the 
Registrar, Madras High Court, a security bond charging certain proper-
ties 'for the payment of Rs. 50,000. 
The document was attested by only 
one witness. 
At the time of registration it was signed by t\VO identifying 
witnesses and the Suh-Registrar. 
The trial Judge decreed the appellant's 
suit and the decree mentioned that the charge created by H's security bond 
would enure for the benefit of the decree holder. 
Jn execution proceed-
ings the properties in question were sold and the proceeds deposited 
in 
court. At this stage the three respondents who also held money decrees 
against H applied to the Court for rateable distribution of the assets realis-
ed in the execution of the appellant's decree in suit No. 56 of 1953. The 
trial Judge dismissed their applications. In Letters Patent 
Appeals 
the 
High Court held that in the absence of attestation by the two witnesses the 
security bond executed by H was invalid inasmuch 
as a charge on pro-
perty created unde·r s. 100 o'f the Transfer of Property Act attracted the 
provisions of s. 59. 
As to the decree passed in suit No. 56 of 1953 
the 
High Court held that in view of the decree holder's omission to amend 
the plaint by adding a prayer for enforcement of the charge the decree 
should be conStrued as containing merely a recital of the fact that a secu-
·rity bond had been executed. 
On these findings the High Court held that 
the respondents were entitled to rateable distribution. Against the High 
Court's orders the appellant filed appeals in this Court. 
On the question 
of attestation he contended that the sub-Registrar and the two identi'fying 
witnesses must also he treated as having attested the security bond. 
HELD : (i) The essential conditions of a valid attestation under s. 3 
of the Transfer of Prope·rty Act are : ( 1) two or more 
witnesses have 
seen the executant sign the instrument or have received from him a perw 
sonal acknowledgment of his signature; (2~ with a view to attest or to 
bear witness to this fact ea.ch of them has signed the instrument in 
the 
presence df the executant. 
It is essential that the witness should have put 
his signature animo attestendi, that is, for the purpose of attesting that he 
has seen the executant sign or has received from him a personal acknow-
ledgment of his signature. If a person puts his signature on the docu-
514 
SUPREME COURT REPORTS 
(1969] 3 s.c.R. 
ment for some other purpose, e.g., to certify that he is a scribe or an iden-
A 
tifier or a registering officer, he is not an attesting witness. 
[519 C-D] 
Prima facie the registering officer puts his signature on the document 
in discharge of his statutory duty under s. 59 elf the Registration Act and 
not for the purpose of attesting it or certifying that he has received from 
the executarit a personal acknowledgment of his signature. 
[520 B-C] 
In the present case the evidence did not show that the registering offi-
cer and the identifying witnesses signed the document with the intention 
of attesting it. 
Nor was it shown that the registering officer signed it in 
the presence of the executant. The document could not therefore be said 
to have been attested by these witnesses and must 

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