Property Law

M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons

AIR 1969 SC 1147; (1969) 1 SCC 573

Facts

A defendant in a summary suit was granted leave to defend on the condition that he provide security for ₹50,000.
He executed and registered a security bond creating a charge over immovable properties.
Only one person formally signed as an attesting witness.
The Sub-Registrar and persons who identified the executant also signed the document during registration.
A dispute later arose regarding whether the bond had been validly attested.
It was argued that:
a charge was similar to a simple mortgage;
Section 59 required attestation by two witnesses; and
signatures of the registering officer and identifiers should be treated as additional attestation.

What is required for a person to qualify as an attesting witness?
Whether signatures made merely for registration or identification amount to attestation.
Whether a document creating a charge must be attested like a simple mortgage.

Under Section 3 TPA, attestation requires that:
the witness sees the executant sign, or receives personal acknowledgment of the signature;
the witness signs in the executant’s presence; and
the witness signs animo attestandi, meaning with the intention of bearing witness to execution.
A signature placed for another purpose does not automatically amount to attestation.
Section 59 specifically requires attestation for certain mortgages.
Section 100 creates a charge but does not automatically import all formal requirements applicable to a mortgage.

The Sub-Registrar signed in discharge of his statutory duty of registration.
The identifiers signed to establish the identity of the executant.
There was no evidence that they signed with the intention of attesting the execution of the bond.
Therefore, their signatures could not be counted as those of attesting witnesses.
However, the absence of two attesting witnesses did not invalidate the charge.
A charge and a mortgage are legally distinct:
a mortgage transfers an interest in specific immovable property;
a charge gives a right to payment out of property without transferring an interest.
Section 100 makes certain mortgage principles applicable to charges but does not state that every charge must satisfy Section 59.
The instrument required registration because it created a right in immovable property, but it did not require two-witness attestation.

The registering officer and identifiers were not attesting witnesses merely because they signed the document.
Nevertheless, the security bond validly created a registered charge.
Attestation by two witnesses was not essential for creating that charge.
The charge-holder’s claim received priority over ordinary unsecured creditors.