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Report No. 70

55.11. Party as attesting witness.-

It has been held1 that a party cannot be an attesting witness with reference to section 5. The principle seems to be that the attestation of a person to a document is to ensure that there is no fraud or other vitiating circumstance in the execution of the document.

1. Gomethi Amal v. Krishna lyer, AIR 1954 Mad 126 (127), para. 6, relying on the Privy Council decision in Shamu Patter v. Abdul Kadir, 1912 ILR 35 Mad 607.

55.12. Amount.-

Attention must now be devoted to two questions of substance, namely, how far the requirement of attestation is now called for, and whether the amount of one hundred rupees should be changed. As to the first question, the principal object of attestation seems to be to ensure that a person does not hastily enter into a transaction whereby he incurs pecuniary liability with an incumbrance on his immovable property.

It appears to us that in the case of mortgages of small amounts, this requirement can be safely dispensed with. A person incurring a debt for a small amount if he chooses to mortgage his immovable property for this purpose, does not require this extra protection. For this reason alone, we would recommend the substitution of one thousand rupees in place of one hundred rupees in section 59, in both the paragraphs.

55.13. Other laws giving protection.-

In this connection, it is proper to point out that subsequent to the passing of the transfer of Property Act in 1882, numerous legislative measures have taken their place on the statute book which protect debtors against the consequences of their own imprudence or of the tendency of others to exploit them. For example, some protection against unconscionable bargains is provided in the Usurious Loans Act, 1918. Moneylenders are regulated by State legislation in most States. Then, there is comprehensive legislation for the relief of agricultural indebtedness. Having regard to all these post 1882 developments, a mild relaxation of the requirement of attestation appears to be desirable.

55.14. Purchasing power.-

Apart from this consideration, there is a purely financial aspect, namely, the purchasing power of the rupee has declined in the last century or so during which the Transfer of Property Act has been in operation. Without going into the details of the matter by quoting the price index and the like, it would be reasonable to state that the purchasing power has certainly declined to the extent that what was hundred rupees in 1882 would correspond now roughly to eight hundred rupees, if not more. For this reason also, we would recommend substitution of one thousand rupees in place of one hundred rupees in both the paragraphs of section 59.

55.15. Redraft.-

On the above reasoning, we recommend a redrafting of section 59 as follows:-

"59. (1) Where the principal money secured is one thousand rupees or upwards, a mortgage other than a mortgage by deposit of little deeds can be effected only by a registered instrument signed by or on behalf of the mortgagor and attested by at least two witnesses.

(2) Where the principal money secured is less than one thousand rupees, a mortgage other than a mortgage by deposit of title deeds may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property."

The Transfer of Property Act, 1882 Back

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