Basil Scott, C.J.
1. The deed upon which the plaintiff relies being a mortgage deed to secure repayment of Rs. 14 00 must in order to be effective be attested by two witnesses (see Section 59 of the Transfer of Property Act). Assuming that we may take the signature of the Sub-Registrar who was bound to attest under the provisions of Section 63A of the Dekkhan Agriculturists' Relief Act as that of an attesting witness there is no one else whose name appears on the document who purports to sign as an attesting witness. But it is argued that the writer of the deed who in concluding the writing of the body of the document states that it is written by him can be treated as an attesting witness. It was not suggested in the first Court that he could be regarded in this light but the appellate Court relying upon a passage in Gour's Transfer of Property Act and upon the case of Radha Kishen v. Fateh Ali Rarn I L R (1898) All. 532, has held that his evidence was admissible as that of an attesting witness and that the provisions of Section 68 of the Evidence Act had been sufficiently complied with. We cannot gather from the report in Badha Kishen v. Fateh Ali Ram I L R (1898) 20 All. 532 in what manner or place the scribe in that case affixed his name to the deed ; we are however of opinion that the name of the writer in the case now before us cannot be held to be an attestation. It occurs before the names of the executing parties and forms part of the body of the document. In Burdett v. Spilsbury (1843) 10 C. & F. 340 Lord Campbell said: 'What is the meaning of an attesting witness to a deed Why it is witness who has seen the deed executed and who signs it as a witness,' This we think is the meaning of attesting witness in Section 68 of the Evidence Act and we therefore hold that the writer in the circumstances of this case cannot be treated as an attesting witness.
2. It has however been argued that the Dekkhan Agriculturists' Relief Act is a special enactment which is not affected by the Transfer of Property Act and that the latter Act has no application to this case. The answer to this argument is given by the Subordinate Judge in the original Court. He says : 'Beyond doubt the document has been properly executed in accordance with the provisions of Section 63A of the Dekkhan Agriculturists Relief Act but the question is whether that is sufficient to effect a valid mortgage, Section 63A of the Dekkhan Agriculturists Relief Act does not provide how a transfer of property such as a mortgage can be effected. That is provided by Section 59 of the Transfer of Property Act. The above section of the Dekkhan Agriculturists' Relief Act simply prescribes the mode in which documents by agriculturists should be executed. That mode applies to all documents to be executed by agriculturists whether required by the law to be attested or not. It does, not in any way affect the requisites prescribed by Section 59 of the Transfer of Property Act for effecting a valid mortgage.'
3. We allow the appeal. We set aside the decree and dismiss the suit with costs throughout on the plaintiff. Separate sets of costs between the appellant (defendant No. 5) and defendant No. 1.