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Judgment
K. Veeraswami, J.—This appeal by the sixth defendant is directed against judgment of the Fourth Assistant Judge, City Civil Court,
Madras, in favour of the respondent on the foot of a mortgage of 17th December, 1953, on the suit property which is house and ground No. 9,
Weaver Street, Triplicane, Madras. The mortgage secured repayment of a sum of Rs. 7,500 and was registered, but it was attested by only one
witness. There was according to the respondent, an earlier mortgage by deposit of title deeds dated 15th April, 1953, for a sum of Rs. 7,500, of
which Rs. 5,000 was already owing and the balance was received by the mortgagors, defendants 1 and 2 subsequently. The appellant is a third
party Court auction-purchaser on 30th April, 1957, in execution of a maintenance charge decree dated 6th February, 1934, in O.S. No. 174 of
1930 in favour of one Annapurani Ammal. He was impleaded as the sixth defendant to the suit long after its institution, as a proper party. There is
an alternative prayer by the respondent in the plaint that if for any reason the registered mortgage in his favour was not enforceable, a decree
should be passed on the foot of the mortagage by deposit of title deeds. The suit was resisted by the appellant on the ground that the registered
mortgage was invalid as it was attested by only one witness and that in any case, the respondent was not a transferee without notice of the
maintenance charge. The Court below declined to accept both the contentions and gave judgment for the respondent.
Factually it is true that the mortgage deed has been attested by a single witness, though the law requires at least two attestors. The argument,
however, for the respondent both here and in the Court below is that the Sub-Registrar who signed the document in the process of the registration
should be treated as an attestor. The Court below was prepared to accept this position. We are however, unable to accept its view that the Sub-
Registrar had the animus to be an attestor of the document. A Sub-Registrar like any other individual is certainly entitled to figure as an attesting
witness to a mortgage. But merely because a Sub-Registrar in the course of registration is required to affix his signature to the document in token of
his satisfaction in regard to certain things contemplated by the provisions of the Registration Act and the rules made thereunder, he does not ip so
facto become an attestor to the document. As to when the signature of a registering officer endorsed on a mortgage document can be treated as
that of an attesting witness has been laid down by a Full Bench of this Court in H. Venkata Sastri and Sons and Others Vs. Rahilna Bi and Others,
. There it was observed:
If the signature of the Registering Officer or of the identifying Witnesses put in at the time of registration of the document could be regarded as
complying with the definition of the word ""attested"" contained in Section 3 of the Transfer of Property Act, then the document could be held to be
valid.
The three important requisites of attestation, as is clear from the section, are:
(1) The signatories should be those who have seen the execution or received a personal acknowledgment from the executant of his having
executed the document;
(2) They sign their names in the presence of the executant; and
(3) While so doing they had the animus to attest it.
It is not disputed for the appellant that the first two requisites are satisfied. The question is whether the last requisite also can be said to have
been satisfied. The Sub-Registrar, who gave evidence stated:
The procedure contemplated under the Registration Act is strictly followed when a document is presented for registration. When the executant is
questioned about the document, and the contents were explained to him, identifying witnesses are present. The executant signs and the identifying
witnesses also sign at the back of the document and I close it with my signature. All this is one continuous process. Exhibit A-l is a document
registered by me. The usual procedure contemplated by the Registration Act spoken to by me was adopted when Exhibit A-l was registered...
There is nothing peculiar in Exhibit A-l to make me specially remember it, but Exhibit A-l has been registered as per rules.
We are not satisfied from this statement of the Sub-Registrar just extracted that he signed the document with the animus or intention to be an
attestor. His evidence went no further than that just like any other document, he registered the document in question, and while doing so, he
followed the procedure prescribed by the relevant rules. That being the case, he could not be attributed by any means of an animus to figure as an
attestor to the document. If what he does in the process of registration and in compliance with the rules relating to the matter satisfies the test of
animus, virtually in every case of a document registered the Sub-Registrar would have to be taken for granted as having the animus and being an
attestor with the necessary animus. It was, however, pressed upon us for the respondent that the evidence which we have extracted from the Sub-
Registrar is sufficient to make out his animus to be an attestor. We are clearly of opinion that we cannot accept this contention. In fact, the
evidence of the Sub-Registrar with which the decision in H. Venkata Sastri and Sons and Others Vs. Rahilna Bi and Others, was concerned, was
more pointed for there he had deposed that once he was satisfied that the executant has signed and he had been properly identified and the two
identifying witnesses were present and had signed, the rest of the endorsements were merely formal according to the rules. But the learned Judges
in that case unanimously considered that this did not satisfy the test of animus. In the result, differing from the Court below, we hold the Sub-
Registrar was not an attestor to the registered mortgage and as a mortgage it is invalid.
But this finding will not, however, help the appellant. As we mentioned, the respondent is entitled to sustain the decree on the foot of the
mortgage by deposit of title deeds. The alternative prayer of the respondent in the plaint, however, is that a mortgage decree on the foot of the
equitable mortgage may be passed for a sum of Rs. 5,000 and for the balance of Rs. 2,500 there may be money decree. That prayer apparently
proceeds on the basis that the equitable mortgage secured only repayment of a sum of Rs. 5,000. Learned Counsel for the respondent tried to
convince us that the equitable mortgage itself was for Rs. 7,500 in the sense that the sum of Rs. 2,500 and advanced subsequent to the date of the
equitable mortgage was also covered by the security. We have examined the documents relating to the mortgage by deposit of title deeds, and are
satisfied that the mortgage was only for a sum of Rs. 5,000.
The appellant has failed to show that the respondent had notice of the earlier maintenance charge when the mortagage by deposit of title deeds
was executed on 15th April, 1953. The evidence undoubtedly establishes that the respondent must have come to know of it subsequent to that
date. It is true, as contended for the appellant, the respondent had dealings with defendants 1 and 2 at least from 1943. The Court below referred
to this fact, but was of the view that from this alone the respondent could not justifiably be imputed with notice of the earlier maintenance charge
prior to 15th April, 1953. We are of the same view.
The appeal is dismissed except for the modification that there will be a mortgage decree passed on the mortgage by deposit of title deeds dated
15th April, 1953, for a sum of Rs. 5,000 with interest at the contract rate up to the institution of the suit and at six per cent thereafter till the date of
payment, and in addition, there will be a money decree for a sum of Rs. 2,500 with a similar direction as to interest. The parties to the appeal will
bear their costs throughout.