Vol. 12 · pages 521–525

500 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES 2. The question is, to what does the restriction refer ? Does it to the place where the deeds are delivered ? or does not refer to the place where the property mortgaged is situated ? It is held that the restriction refers to the place where the deeds are delivered and not to the situation of the property mortgaged. Cases. 14 All. 238. 23 I. A. 106. It is not necessary for the property to be situated in the towns mentioned. (vi) Anomalous Mortgages 1. Any mortgage, other than those specified, is called an anomalous mortgage. It is a mortgage which does not fall within any of the other five classes enumerated. 2. Anomalous mortgages take innumerable forms moulded either by custom or the caprice of the creditor—some are combinations of the simple forms—others are customary mortgages prevalent in particular districts, and to these special incidents are attached by local usage. What is it that distinguishes different kinds of mortgage. It is the nature of the right transferred which distinguishes the mortgage. (1) In a simple mortgage, what is transferred is a power of sale which is one of the component rights that make up the aggregate of ownership. (2) In a usufructuary mortgage, what is transferred is a right of possession and enjoyment of the usufruct. (3) In a conditional mortgage and in an English mortgage, the right transferred is a right of ownership subject to a condition. (4) In a simple mortgage and English mortgage, there is a personal obligation to pay.

501THE TRANSFER OF PROPERTY ACT (5) In an usufructuary mortgage and mortgage by conditional sale, there is no personal obligation to pay. What is it that is common to all mortgages. 1. A mortgage is a transfer of an interest in specific immoveable property as security for the repayment of a debt. 2. The existence of a debt is therefore a common characteristic. 3. It is said that this cannot be so because in a conditional mortgage or in an usufructuary mortgage there is no personal covenant to pay. 4. The reply to this is, a debt does not cease to be a debt. The remedy of an action for debt does not exist. The remedies for the recovery of debt may differ without the transaction ceasing to be a transaction for debt. An ordinary mortgage of land may be viewed in two different aspects : (1) Regarded as a promise by the debtor to repay the loan, it is a contract creating a personal obligation. (2) It is also a conveyance, because it passes to the creditor a real right in the property pledged to him. Out of this double aspect, many questions arise. Q. I.—By what law the validity of a mortgage of land situated abroad should be governed ? It is now settled that it is governed by the law of situs, and no distinction is recognized between an actual transfer and a mere executory contract. Q. II.—What is the situs of the secured debt—Is the debt to be regarded as situated in the country where the debtor resides, or where the land on which it is secured is situated ? The Privy Council says “It is idle to say that a debt covered by a security is in the same position with one depending solely on the personal obligation of the debtor”.

502 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES III REQUISITES OF A VALID MORTGAGE This requires the consideration of the following topics: I. Formalities with which a mortgage must be executed. II. The proper subject-matters of a mortgage. III. The capacity to give and to accept a mortgage. IV. Contents of a mortgage-deed. I FORMALITIES WITH WHICH IT MUST BE EXECUTED Section 59.— 1. Except in the case of mortgage by a deposit of titledeeds, every mortgage created securing the repayment of Rs. 100 or more as principal money must, under the T. P. Act, be effected by a regisered instrument, signed by the mortgagor and attested by at least two witnesses. 2. Where the principal money is less than Rs. 100, a mortgage may be created either by such an instrument or except in the case of simple mortgage by delivery of possession of the mortgaged property. 3. If the principal is above Rs. 100, the transaction of mortgage must be in writing i.e. it must be by a deed and the deed must be :— (1) Signed by the mortgagor. (2) Attested by at least two witnesses. (3) Registered. 4. If it is less than Rs. 100 no writing is necessary. Parol agreement is enough in the case of ;— (1) Simple mortgage. (2) Conditional mortgage. (3) English mortgage. (4) Usufructuary mortgage. Parol agreement plus transfer of possession.

503THE TRANSFER OF PROPERTY ACT 5. We have only to consider mortgages where the principal is above Rs. 100. (1) § SIGNATURE General Clauses Act 1897. Section 3 (52). 1. The signature may be made by means of types or by a facsimile. 25 Cal. 911. Such person having a name stamp used by servant. 2. It may be the mark of an illiterate person. 41 Bom. 384 mark of a dagger. 3. But a literate person cannot sign by making a mark. Confession not signed the accused was literate. 32 Cal. 550. Signature includes a mark in the case of a person unable to write his name. (2) § ATTESTATION 1. Attestation.—To attest means to bear witness to, affirm the truth or genuineness of, to testify, certify. Attestation means the verification of the execution of a deed or will by the signature in the presence of witnesses. Attesting witness is a witness who signs in verification. 2. That being so question is, must the attesting witness be present at the execution of the instrument or a mere acknowledgement of execution by the mortgagor to a witness who afterwards subscribes his name is enough to satisfy the requirements of law in respect of attestation ? 3. The Privy Council has laid down that the attesting witness ought to be present at the execution of the instrument and a mere acknowledgement will not suffice. 39 I.A. 218; 35 Mad. 607 which overrule the Allahabad and Bombay decisions to the contrary—27 Bom. 91 and 26 All. 69. § ATTESTATION OF PARDANASHINS. 4. The same rule was applied. The signature of the Pardanashin lady must be in the presence of the witness otherwise he cannot be said to be an attesting witness.

504 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Case Law. 45 I.A. 94. A mortgage-deed for over Rs. 100 purported to be signed by a Pardanashin lady on behalf of her son, a minor and to be attested by two witnesses. It appeared from the evidence that the lady was behind the parda when the deed was taken to her for signature. The witnesses did not see her sign it, but her son came from behind the parda and told them that it had been signed by his mother ; they thereupon added their signatures as witnesses:— Held that the deed was not “attested” within the meaning of section 59 of the T. P. Act. 42 I.A. 163 A mortgage-deed purported to be executed by two pardanashin ladies. It appeared from the evidence of two of the attesting witnesses that they saw the hand of each executant when she signed the deed, and that although they could not see the faces of the executants, they heard them speak and recognized their voices:— Held that the deed was duly attested in accordance with the T. P. Act. 5. The Law is now changed and attestation on acknowledgement of his signature by the executant is good— See Definition Attested in section 3, T. P. Act as amended in 1926. (3) § REGISTERED (Page left blank—ed.) *** (Earlier portion not found—ed.) to operate immediately, it is not necessary that there should be a formal delivery or even that the document should go out of the possession of the party who executes it. illus.—Exton vs. Scott. (1833) 6 Simons 31. A certain person having received moneys belonging to another without any communication with him executed in his favour * Page Left Blank.