1. The important question arising in this case is whether the lower Court has misconstrued Section 59 of the Transfer oi' Property Act. Both the lower Courts have relied on the ruling of the Calcutta High Court in Girindra Nath Mukerjee v. Bejoy Gopal Mukerjee (1898) 26 Cal. 246 and Abdul Karim v. Salimun (1899) 27 Cal. 190.
2. Section 59 runs:
Where the principal money secured is one hundred rupees or upwards, a mortgage can be effected only by a registered instrument signed by the mortgager and attested, by at least two witnesses. * * * * * *
3. The mortgage-bond here sued upon is signed by the mortgagor and attested by three witnesses, and has been duly registered. The deed hag been acted upon and the mortgagees have been put in possession.
4. The case of Girindra Nath Mukerjee v. Bejoy Gopal Mukerjee (1898) 26 Cal. 246 does not apply, as there the deed was not attested by two witnesses. In the case of Abdul Karim v. Salimun (1899) 27 Cal. 190 their Lordships held that the attestation required by Section 59 of the Transfer of Property Act is an attestation by witnesses of the execution of the document and not of the admission of execution. To that view we are unable to express our assent. There is nothing in the wording of the section to lead us to infer that such was the intention of the Legislature. Here the instrument is signed by the mortgagor and bears the attestations of three witnesses. Two of them are dead and the third, who has been examined in the case, states that Dayal Lakshmidas, the mortgagor, asked him to attest the mortgage-bond and admitted having signed it and having received the consideration. It has never been contended that the signatures are not genuine. If all the witnesses had been dead it would only have been necessary, in the absence of any allegation of fraud, to prove the signatures, and the Court would have acted on the maxim omnia prosumuntur rite esse acta. No objection was taken in the written statement to the validity of the deed and no issue was raised on the point. We may remark there is nothing to justify the inference that as the attestations of the deceased witnesses appear to have been written with a different ink they could not have witnessed the execution of the mortgage-bond.
5. It has been held by their Lordships of the Privy Council in a recent case Gokul v. Pudmanund (1902) 29 Cal. 707 that 'the essence of a Code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction.' If Section 50 of the Succession Act (X of 1865) be referred to, it will be seen that attestation by a person who signs a will in the presence of the testator after receiving from the testator a personal acknowledgment of his signature or mark is treated by the Legislature as attesting the will, and not as a mere attestation of the testator's admission of execution. The words used in the third paragraph of Section 50 of the Succession Act are 'The will shall be attested by two or more witnesses...shall be necessary.' And the words used in Section 59 of the Transfer of Property Act are 'by a registered instrument signed by the mortgagor and attested by at least two witnesses.' It seems to us there is nothing in Section 59 of Act IV of 1882 to warrant the conclusion that' the word 'attested' is used in this Act, by the Legislature in a different sense from that in which it is used in Section 50 of the Succession Act, and to read into the former section a provision that an attestation in the presence of the mortgagor by a person who has received from him a personal acknowledgment of his signature on the instrument of mortgage is not an attestation within the requirements of Section 59 of the Transfer of property Act is 'to disregard or go outside the letter of the enactment.' With due deference to the authority by which the came of Abdul Karim v. Salimun (1899) 27 Cal. 190 was decided, we are of opinion that where a will under the provisions of the Succession' Act is described by the Legislature as 'attested' by witnesses who have signed it in the presence of the testator after having received from him a personal acknowledgment of his signature, an instrument of mortgage can equally be treated as attested under the provisions of Section 59 of the Transfer of Property Act when the witnesses sign it in the presence of the mortgagor after having received from him a personal acknowledgment of his signature.
6. The mortgage-deed (Exhibit 15) which was held proved by the lower Courts was wrongly held to be invalid on the ground that the mortgagor who admitted his signature did not sign it in the presence of the attesting witnesses.
7. We vary the decree of the lower Appellate Court by ordering that on failure to pay the amount within two months the decreed debt, Rs. 182, be recovered by sale of the mortgaged property described in the plaint, and the balance, if any, from the estate of the deceased Dayal Lakshmidas. In other res pacts the decree of the lower Appellate Court is confirmed. The costs throughout will be borne by the respondent.