Appeals Nos 272 to 274 of 1966
Appeals by special leave from the judgment and order dated July 28 1961 of the Madras High Court in OSA Nos 65 70 and 71 of 1956
KN Balasubramaniam and R Thiagarajan for the appel lant in all the appeals
RGapalakrishnan for respondents Nos 2 to 4 in CA No 272 of 1966 respondents Nos 1 and 2 in CA No 273 of 1966 and respondent No 1 in CA No 274 of 1966
The Judgment of the Court was delivered by Bachawat J
On February 23 1953 the appellant instituted CS No 56 of 1953 on the Original Side of the Madras High Court under the summary procedure of Order 7 of the Original Side Rules against Hajee Ahmed Batcha claiming a decree for Rs 4055612 and Rs 8327129 said to be due under two I promissory notes executed by Haji Ahmed Batcha
On March 9 1953 Hajee Ahmed Batcha obtained leave to defend the suit on condition of his furnishing the security for a sum of 516 Rs 50000 to the satisfaction of the Registrar of the High Court
On March 26 1953 Hajee Ahmed Batcha executed a security bond in favour of the Registrar of the Madras High Court charging several immoveable properties for payment of Rs 50000
The condition of the bond was that if he paid to the appellant the amount of any decree that might be passed in the aforesaid suit the bond would be void and of no effect and that otherwise it would remain in full force
The bond was attested by B Somnath Rao
It was also signed by K section Narayana Iyer Advocate who explained the document to Hajee Ahmed Batcha and identified him
All the properties charged by the bond are outside the local limits of the ordinary original jurisdiction of the Madras High Court
The document was presented for registration on March 29 1953 and was registered by D W Kittoo the Sub Registrar of Madras Chingleput District
Before the Sub Registrar Hajee Ahmed Batcha admitted execution of the document and was identified by Senkaranarayan and Kaki Abdul Aziz
The identifying witnesses as also the Sub Registrar signed the document
Hajee Ahmed Batcha died on February 14 1954 and his legal representatives were substituted in his place in CS No 56 of 1953
On March 19 1954 Ramaswami J passed a decree for Rs 4989113 with interest and costs and directed payment of the decretal amount on or before April 20 1954
While passing the decree he observed  It is stated that the defendant has executed a security bond in respect of their immoveable properties when they obtained leave to defend and this will stand enured to the benefit of the decree holder as a charge for the decree amount
Clauses 3 and 4 of the formal decree provided 3 that the security bond executed in respect of their immoveable properties by defendants 2 to 4 in pursuance of the order dated 9th March 1953 in application No 797 of 1953 shall stand enured to the benefit of the plaintiff as a charge for the a amounts mentioned in clause 1 supra 4that in default of defendants 2 to 4 paying the amount mentioned in clause 1 supra on or before the date mentioned in clause 2 supra the plaintiff shall be at liberty to apply for the appointment of Commissioners for sale of the aforesaid properties
 The appellant filed an application for a making absolute the charge decree dated March 31 1954 and directing sale of the properties and b appointment of Commissioners for selling them
On April 23 1954 the Court allowed the application appointed Commissioners for selling of the properties and directed that the relevant title deeds and security bond be handed over 5 17 to the Commissioners
The Commissioners sold the properties on May 29 and 30 1954
The sales were confirmed and the sale proceeds were deposited in Court on July 2 1954
All the three respondents are simple money creditors of Hajee Ahmed Batcha
The respondents Venkata Sastri  Sons filed OS No  13 of 1953 in the Sub Court Vellore and obtained a decree for Rs 5500 on March 27 1953
Respondent HR Cowramma instituted OS No 14 of 1953 in the same Court and obtained a money decree on April 14 1953
The two decree holders filed applications for execution of their respective decrees
One Rama Sastri predecessors of respondents HR Chidambara Sastri and HR Gopal Krishna Sastri obtained a money decree against Hajee Ahmed Batcha in OS No 364 of 195152 in the Court of the District Munsiff Shimoga got the decree transferred for execution through the Court of the District Munsiff Vellore and filed an application for execution in that Court
On June 7 1954 the aforesaid respondents filed applications in the Madras High Court for i transfer of their execution petitions pending in the Vellore courts to the file of the High Court and ii an order for rateable distribution of the assets realized in execution of the decree passed in favour of the appellant in CS No 56 of 1953
The appellant opposed the applications and contended that as the properties were charged for the payment of his decretal amount the sale proceeds were not available for rateable distributing amongst simple money creditors
The respondents contended that the security bond was invalid as it was not attested by two witnesses and that the decree passed in CS No 56 of 1953 did not create any charge
Balakrishna Ayyar J dismissed all the applications as also exemption petitions filed by the respondents
He held that the decree in CS No 56 of 1953 did not create a charge on the properties
But following the decision in Veerappa Chettiar vs Subramania1 he held that the security bond was sufficiently attested by the Sub Registrar and the identi fying witnesses
The respondents filed appeals against the orders
On March 28 1958 the Divisional Bench hearing the appeals referred to a Full Bench the following question Whether the decision in Veerappa Chettiar vs Subramania lyer ILR requires reconsideration
 The Full Bench held In our opinion such signatures of the registering officer and the identifying witnesses endorsed on a mortgage document can be treated as those of attesting witnesses if  1 the signatories are those who have seen the execution or received a personal acknowledgment 1 ILR 518 from the executant of his having executed the document 2 they sign their names in the presence of the executant and 3 whileso doing they had the animus to attest
The mere presence of the signatures of the registering officer or the identifying witnesses on the registration endorsements would not by themselves be sufficient to satisfy the requirements of a Valid attestation but it would be competent for the parties to show by evidence that any or all of these persons did in fact intend to and did sign as attesting witness as well
 The Full Bench held that the decision in Veerappa Chettiar s Case1 can be held to be correct to this limited extent only and not otherwise
At the final hearing of the appeals the Divisional Bench held that  1  a charge by act of parties could be created only by a document registered and attested by two witnesses 2 the security bond was not attested by two witnesses and was therefore invalid 3 the decree in CS No 56 of 1953 should be construed as containing nothing more than a recital of the fact of there having been a security bond in favour of the plaintiff and the sale in execution of the decree must be regarded as a sale in execution of a money decree and 4 tie respondents were entitled to an order for rateable distribution
Accordingly the Divisional Banch allowed the appeals directed attachment of the sale proceeds and declared that the respondents were entitled to rateable distribution along with the appellant
The present appeals have been filed after obtaining special leave from this Court
The following questions arise in these appeals  1 Is the security bond attested by two witnesses 2 if not is it invalid 3 does the decree in CS No 56 of 1953 direct saleof the properties for the discharge of a charge thereon and 4 are the respondents entitled to rateable distribution of the assets held by court As to the first question it is not the case of the appellant that KS Narayana Iyer is an attesting witness
The contention is that the Sub Registrar DW Kittoo and the identifying witnesses Senkaranarayana and Kaki Abdul Aziz attested the document
In our opinion the High Court rightly rejected this contention
Section 3 of the gives the definition of the word attested and is in these words  Attested in relation to an instrument means and shall be deemed to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument or has seen some other person sign the instrument in the presence and by the 1 ILR 519 direction of the executant or has received from the executant a personal acknowledgment of his signature or mark or of the signature of such other person and each of whom has signed the instrument in the presence of the executant but it shall not be necessary that more than one of such witnesses shall have been present it the same time and no particular form of attestation shall be necessary
 It is to be noticed that the word attested the thing to be defined
occurs as part of the definition itself
To attest is to bear witness
to a fact
Briefly put the essential conditions of a valid attestation under section 3 are  1  two or more witnesses
have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature 2 with a view to attest or to bear witness to this fact each of them has
signed the instrument in the presence of the executant
It is essential that the witness should have put his signature animo attestandi that is for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature
If a person puts his signature on the document for some other purpose eg to certify that he is a scribe or an identifier or a registering officer he is not an attesting witness
In every case the Court must be satisfied that the names were written animo attestandi see Jarman on Wills 8th ed 137
Evidence is admissible to show whether the witness had the intention to attest
The attesting witnesses must subscribe with the intention that the subscription made should be complete attestation of the will and evidence is admissible to show whether such was the intention or not see Theobald on Wills 12th ed
p 129
In Giria Datt vs Gangotri 1the Court held that the two persons who had identified the testator at the time of the registration of the will and had appended their signatures at the foot of the endorsement by the Sub Registrar were not attesting witnesses
as their signatures were not put animo attestandi
In Abinash Chandra Bidvanidhi Bhattacharya vs Dasarath Malo2 it was held that a person who had put his name under the word scribe was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a scribe
In Shiam Sundar Singh vs Jagannath Singh 3 the Privy Council held that the legatees who had put their signatures on the will in token of their consent to its execution were not attesting witnesses and were not dis qualifled from taking as legatees
The Indian lays down a detailed pro cedure for registration of documents
The registering officer is 1 AIR 1955 SC 346351
3 2 ILR 5 under a duty to enquire whether the document is  executed by the person by whom it purports to have been executed and to satisfy himself as to the identity of the executant section 343
He can register the document if he is satisfied about the identity of the person executing the document and if that person admits execution section 251
The signatures of the executant and of every person examined with reference to the document are endorsed on the document section 58
The registering officer is required to affix the date and his signature to the endorsements section 59
Prima facie the registering officer puts his signature on the document in discharge of his statutory duty under section 59 and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature
The evidence does not show that the registering officer DW Kitto put his signature on the document with the intention of attesting it
Nor is it proved that he signed the document in the presence of the executant
In these circumstances he cannot be regarded as an attesting witness see SurendraBahadur Singh vs Thakur Behari Singh1
Like identifying witnesses Senkaranarayana and Kaki Abdul Aziz signatures on the document to authenticate the fact that they have identified the executant
It is not shown that they put their signatures for the purpose of attesting the document
They cannot therefore be regarded as attesting witnesses
It is common case that B Somnath Rao attested the document
It follows that the document was attested by one witness only
As to the second question the argument on behalf of the respondents is that section 100 of the attracts section 59 and that a charge can be created only by a document signed registered and attested by two witnesses in accordance with section 59 where the principal money secured is Rs 100 or upwards
The High Court accepted this contention following its earlier decisions in Viswanadhan vs Menon2 and Shiva Rao vs Shanmugasundara swami 3 and held that the security bond was invalid as it was swami attested b one witness only
We are unable to agree with this opinion
Section 100 is in these terms Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another and the transaction does not amount to a mortgage the latter person is said to have a charge on the property  and all the provisions hereinbefore contained which apply to a simple mortgage shall so far as may be apply to such charge
1 2 ILR 1939Mad
3 ILR 1940 mad
521 Nothing in this section applies to the charge of a trustee on the trust property for expenses property incurred
in the execution of his trust and save as otherwise expressly provided by any law for the time being in force no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge
The first paragraph consists of two parts
The first part concerns the creation of a charge over immoveable property
A charge may be made by act of parties or by operation of law
No restriction is put on the manner in which a charge can be made
Where such a charge has been created the second part comes into play
It provides that all the provisions hereinbefore contained which apply to a simple mortgage shall so far as may be apply to such charge
The second part does not address itself to the question of creation of a charge
It does not attract the provisions of section 59 relating to the creation of a mortgage
With regard to the applicability of the provisions relating to a simple mortgage the second part of the first paragraph makes no distinction between a charge created by act of parties and a charge by operation of law
Now a charge by operation of law is not made by a signed registered and attested instrument
Obviously the second part has not the effect of attracting the provisions of section 59 to such a charge
Likewise the legislature could not have intended that the second part would attract the provisions of section 59 to a charge created by act of parties
Had this been the intention of the legislature the second part would have been differently worded
If a charge can be made by a registered instrument only in accordance with section 59 the subsequent transferee will always have notice of the charge in view of section 3 under which registration of the instrument operates as such a notice
But the basic assumption of the doctrine of notice enunciated in the second paragraph is that there may be cases where the subsequent transferee may not have notice of the charge
The plain implication of this paragraph is that a charge can be made without any writing
If a non testamentary instrument creates a charge of the value of Rs 100 or upwards the document must be registered under section 17 1 b of the Indian 
But there is no provision of law which requires that an instrument creating the charge must be attested by witnesses
Before section 100 was amended by Act 20 of 1929 it was well settled that the section did not prescribe any particular mode of creating a charge
The amendment substituted the words all 522 the provisions hereinbefore contained which apply to a simple mortgage shall so far as may be apply to such charge for the words all the provisions hereinbefore contained as to a mortgagor shall so far as may be apply to the owner of such property and the provisions of sections 81 and 82 shall so far as may be apply to the person having such charge
 The object of the amendment was to make it clear that the rights and liabilities of the parties in case of a charge shall so far as may be the same as the rights and liabilities of the parties to a simple mortgage
The amendment was not intended to prescribe any particular mode for the creation of a charge
We find that the Nagpur High Court came to a similar conclusion in Baburao vs Narayan1
It follows that the security bond was not required to be attested by witnesses
It was duly registered and was valid and operative
As to the third question we find that the decree dated March 19 1954 declared that the security bond in respect of the immovable I properties would enure for the benefit of the appellant as a charge for the decretal amount
This relief was granted on the oral prayer of the plaintiffs
We are unable to agree with the High Court that in view of the 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 security bond had been executed
In our opinion the decree on its true construction declared that the security bond created a charg e over the properties in favour of the plaintiffs for payment of the decretal amount and gave them the liberty to apply for sale of the properties for the discharge of the encumbrance
Pursuant to the decree the properties were sold and the assets are now held by the Court
The omission to ask for an amendment of the plaint was an irregularity but that does not affect the construction of the decree
It was suggested that the decree was invalid as the High Court had no territorial jurisdiction under clause 12 of its Letters Patent to pass a decree for sale of properties outside the local limits of its ordinary original jurisdiction
For the purpose of these appeals it is sufficient to say that the respondents cannot raise this question in the present proceedings
If the decree is invalid and the sale is illegal on this ground the respondents cannot maintain their applications for rateable distribution of the assets
They can ask for division of the sale proceeds only on the assumption that the properties were lawfully sold
It is therefore unnecessary to decide whether the objection as to the territorial jurisdiction of the High Court has been waived by the judgment debtor and cannot now be agitated by him and persons claiming through him having regard to the decisions in Seth Hiralal Patni vs Sri Kali 1ILR 1819 822 523 Nath1 Behrein Petroleum Co Ltd vs P J Pappu 2  Zamindar of Etiyapuram vs Chidambaram Chetty1
As to the 4th question we find that the immoveable properties have been sold in execution of a decree ordering sale for the discharge of the encumbrance thereon in favour of the appellant
Section 731 proviso c therefore applies and the proceeds of sale after defraying the expenses of the sale must be applied in the first instance in discharging the amount due to the appellant
Only the balance left after discharging this amount can be dis tributed amongst the respondents
It follows that the High Court was in error in holding that the respondents were entitled to rateable distribution of the assets along with the appellant
In the result the appeals are allowed the orders passed by the Divisional Bench of the Madras High Court are set aside and the orders passed by the learned Single Judge are restored
There will be no order as to costs
GC Appeals allowed
1  751 2
2  462 3


Summary:
The appellant filed suit No 56 of 1953 against H for recovery of certain monies 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 properties for the payment of Rs 50000
The document was attested by only one witness
At the time of registration it was signed by two identifying witnesses and the Sub 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
In execution proceedings 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 ratable distribution of the assets realised 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 property created under section 100 of the attracted the provisions of section 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 security 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 identifying witnesses must also be treated as having attested the security bond
HELD  i The essential conditions of a valid attestation under section 3 of the are  1 two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature 2 with a view to attest or to hear witness to this fact each of them has signed the instrument in the presence of 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 acknowledgment of his signature
If a person puts his signature on the docu 514 meat for some other purpose eg to certify that he is a scribe or an identifier 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 section 59 of the and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature 520 B C In the present case the evidence did not show that the registering officer 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 be held to have been signed by one attesting witness only
520 D Veerappa Chettiar vs Subramania ILR  Girja Datt vs Gangotri AIR 1955 SC 346 Abinash Chandra Bidyanidhi Bhattacharya vs Dasarath Malo ILR 56 Cal
598 Shiam Sundar Singh vs Jagannath Singh 54 MLJ
43 and Surendra Bahadur Singh vs Thakur Behari Singh  referred to
iiSection 100 of the does not attract the provisions of section 59
521 C D The first paragraph of section 100 consists of two parts
The first part concerns the creation of a charge over immovable property which may be by act of parties or by operation of law
No restriction is put on the manner in which a charge can be made
521 C When such a charge has been created the second part comes into play
It provides that all the provisions hereinbefore contained which apply to a simple mortgage shall so far as may be apply to such charge
The second part does not address itself to the question of creation of a charge
It does not attract the provisions of section 59 relating to the creation of a mortgage
The second part moreover makes no distinction between a charge created by act of parties and a charge by operation of law
Obviously the provision of section 59 are not attracted to a charge by operation of law
Likewise the legislature could not have intended that the second part would attract the provisions of section 59 to a charge created by act of parties
521 D E If a charge can be made by a registered instrument only in accordance with section 59 the subsequent transferee will always have notice of the charge in view of section 3 of the Act
But the basic assumption of the doctrine of notice enunciated in the second paragraph is that there may be cases when the subsequent transferee may not have notice of the charge
The plain implication of this paragraph is that A charge can be made without any writing
521 F G If a non testamentary instrument creates a charge of the value of Rs 100 or upwards the document must be registered under section 171 b of the Indian 
But there is no provision of law which requires that an instrument creating the charge must be attested by witnesses
521 G H The object of the second part of the first paragraph of section 100 is to make it clear that the rights and liabilities of the parties in case of a charge shall so far as may be the same as the rights and liabilities of the parties of a simple mortgage
It was not intended to prescribe any particular mode for the creation of a charge
522 B 515 It followed that the security bond in the present case was not required to be attested by witnesses
It was duly registered and was valid and operative
522 C Viswanadhan vs Menon ILR and Shiva Rao vs Shanmugasundaraswami ILR  disapproved
Baburao vs Narayan ILR  819 822 approved
iiiThe decree in suit No 56 of 1963 on its true construction declared that the security bond created a charge over the properties in favour of the plaintiffs for payment of the decretal amount and gave them the liberty to apply for sale of the properties for the discharge of the encumbrance
Pursuant to the decree the properties were sold and the assets were held by the court
The omission to ask for an amendment of the plaint was an irregularity but that did not affect the construction of the decree
522 D E ivThe immovable properties had been sold in execution of a decree ordering sale for the discharge of the encumbrance thereon in favour of the appellant
Section 731 proviso c therefore applied and the proceeds of the sale after defraying the expenses of the sale must be applied in the first instance in discharging the amount due to the appellant
Only the balance left after discharging this amount could be distributed among the respondents
523 B vSince the respondents  own case rested on the assumption that the properties were lawfully sold they could not be allowed to raise the objection that the High Court had no territorial jurisdiction for sale of properties outside the local limits of its ordinary original jurisdiction
522 G Seth Hiralal Patni vs Sri Kali Nath   751 52 Bahrein Petrolium Co Ltd vs P J Pappu   462 63 and Zamindar of Etiyapuram vs Chidambaram Chetty ILR 43 Mad  675 FB referred to