1. The plaintiff, who is the appellant before us, sued to recover on two mortgage bonds. He was defeated in the lower appellate Court because the learned Assistant Judge was of opinion that the bonds were not validly attested as required by Section 59 of the Transfer of Property Act.
2. The question is, whether this opinion is correct. It is clear to us that in the circumstances of the case the provisions of Section 59 of the Transfer of Property Act are satisfied if the plaintiff can rely upon the scribe as an attesting witness. Now the state of facts in which this question is to be decided is this. Both the instruments stand on the same footing and it will be simpler to refer expressly to one only. The executant, then, of this bond was one Gopal Bapu, a marksman. The scribe was one Keshav Chintaman Vaishampayan. The body of the document ends with these words: 'I have duly passed in writing this deed of mortgage of my free will after receiving the moneys in cash. The hand-writing of Keshav Chintaman Vaishampayan.' And there follow on the left the attestations of two witnesses and on the right under the word signature these words: 'The mark of a dagger representing the signature of Gopal Bapu Lad made by him with his own hands. The handwriting of Keshav Chintaman Vaishampayan.' Keshav Chintaman, the scribe, deposes that he witnessed the execution of the bond by Gopal's affixing of his mark. It is settled law that for the purposes of Section 59 of the Transfer of Property Act an attesting witness must witness the actual execution of the document and that mere acknowledgment of his signature by the executant is not sufficient: Shamu Patter v. Abdul Kadir : (1912)14BOMLR1034 . The learned Assistant Judge in explaining why he considers that the scribe here cannot be regarded as an attesting witness says: 'The mere making of the mark is not the signature of the executant. There must be something more, that is, a description that it is the mark of so and so. This is done by the writer. The description, I think, only completes the signature or execution by the executant. The writer is only the alter ego of the executant or acts as an agent for him in writing his name after the mark and in giving his name as 'Dastur' he merely indicates who wrote the document and the signature.' This view appears to us to be erroneous. In our opinion in the case of an illiterate executant his mark is his signature and is independent of any writing by which the mark may be explained. That, we think, is borne out by Section 3, Clause 52, of the General Clauses Act which explains that the word ' sign' shall, with reference to x a person who is unable to write his name, include mark. The same view is also expressed in Baker v. Dening (1838) 8 A & E 94 and in The Goods of Thomas Douse (1862) LLJ PM & A 172. In this last-mentioned case a will was executed by a marksman whose real name was Thomas Douse, but by mistake he was described as John Douse and against his mark was written 'the mark of John Douse.' The Court granted probate, being satisfied that Thomas Douse was the person who made the mark, Sir C. Cresswell observing that the execution was perfect as soon as the mark was affixed, so that the writing of the words ' the mark of John Douse' against the mark of Thomas Douse did not affect the question. On these grounds we think that the execution of this instrument was completed when Gopal Bapu made his mark.
3. We have now to consider the effect of the last writing which the scribe made on the paper as set out above. It is nowhere laid down as essential that an attesting witness must be formally described as such on the face of the document. In Bryan v. White (1850) 2 Rob. 315., which was cited with approval by the Privy Council in Shamu Patter's case (1912) 514 Bom. L.R. 1034, Dr. Lushington pronounced in favour of the validity of a will where there was no attestation Clause of any description and laid down that ''attest' means the persons shall be present and see what passes and shall, when required, bear witness to the facts.' It seems to us that the scribe here is a person who fairly falls within this description. He was present and saw what passed; now, when required, he bears witness to the facts. His function as scribe ended when he signed his name at the conclusion of the body of the document. It is true that if matters rested there, he clearly could not be regarded as an attesting witness: see Ranu Shivji v. Laxmanrao : (1908)10BOMLR943 . But the differentiating circumstance in the present appeal is that, immediately after the execution by the marksman, the scribe signs his own name under the description of the mark. His object in so doing presumably was and the effect of his so doing, in our opinion, was, to authenticate the mark, that is to say, to vouch the execution; in other words, this last signature was made not as a scribe, but as an attesting witness.
4. On these grounds we allow the appeal, set aside the decree of the Assistant Judge and restore the trial Court's decree with costs throughout subject to the variation that the first instalment will fall due on the 1st day of March 1917 and thereafter the money will be payable by annual instalments of Rs. 75.