Norman Macleod, Kt., C.J.
1. The plaintiff filed this suit to recover on a mortgage bond the sum of Rs. 100 for principal and Rs. 100 as interest with costs and future interest. The 1st defendant admitted execution and consideration. But a preliminary issue was raised, whether the mortgage deed sued upon was valid under Section 59 of the Transfer of Property Act. The learned Judge in the trial Court said:
I examined the plaintiff today and he admits, as indeed he is bound to do, that the deed was written and signed at the writer's house where one of the actestants put his attestation on the deed. But the other witness attested the document in the Sub-Registrar's Office. It is evident therefore that there is no proper attestation of the document as required by the Transfer of Property Act.
2. The suit was therefore dismissed.
3. In appeal the same question was raised, and the appeal was dismissed by the learned District Judge. It would seem at first. sight that the judgments of both the lower Courts are perfectly correct. But we have been referred to a decision of this Court in Govind Bhikaji v. Bhau Gopal (1916) I. L. R. 11 Bom. 384 : 19 Bom. L. R. 147 , which was decided after the decision of the lower appellate Court. In that case on the evidence the Court said:
The writer of the document signed his own name under the description of the executant's mark. His object in so doing presumably was, and the effect of his so doing, in the opinion of the Court, was, to authenticate the mark, that is to say, to vouch the execution; in other words, this last signature was made not as a Boribe, but as an attesting witness.
4. Now if there had been evidence in this case that two witnesses had signed an attesting witnesses, then no doubt there would have been a valid mortgage under the provisions of Section 59 of the Transfer of Property Act. We are asked in second appeal in consequence of that decision, either to hold on the facts in this case, that the scribe putting his signature at the end of the document would be sufficient evidence that he signed as an attesting witness, or to send the case back to the trial Court to take further evidence to show that the scribe did sign as an attesting witness. This question was considered in Ranu v. Laxmanrao I.L.R(1908) 33 Bom. 44 : 10 Bom. L. R. 943 where it was held that the scribe could not be considered as an attesting witness, because his name occurred before .the names of the executing parties and formed part of the body of the document. Reference was made to the case of Burdett v. Spilsbury (1843) 10 Clause & F. 340, where Lord Campbell said: 'What is the meaning of an attesting witness to a deed Why, it is a witness who has 33 Bom, 44.; 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 Indian Evidence Act, and we, therefore, hold that the writer in the circumstances of this case cannot be treated as an attesting witness.
5. I should myself be very disinclined to hold that in any ease aseribe wherever he wrote his name could be considered to sign : the document as an attesting witness, unless he actually said so ;|in the document. There is a very great difference between an attesting witness and a scribe, and it would seem to me that it would lead to attempts to evade the plain words of s 59, and would also lead to constant difficulties hereafter, if the law was; not strictly observed, since parties might think that they were) executing a valid mortgage, if only one outside person was brought in to witness the document; and evidence would have to be called to show that the scribe as a matter of fact did sign as an attesting witness. I think the case of Govind Bhikaji v. Bhau Gopal I.L.R(1916) 41 Bom. 384 ; 19 Bom. L. R. 147 must be taken to stand on its own facts. But I also think we must observe the test laid down by the Privy Council in Shamu Patter v. Abdul Kadir Ravuthan : (1912)14BOMLR1034 and also in Ranu v. Laxmanrao I.L.R(1908) 33 Bom. 44; 10 Bom L. R. 943, which, in my opinion, lay down the correct principle to be followed, namely, that an attesting witness must clearly sign as such. Therefore I think the appeal ought to be dismissed with costs.
6. I agree. Broadly speaking a scribe or writer of at document is not intended to be, and is not an attesting witness. But he may be such a witness in certain cases. It was, for example, held in the case of Govind Bhikaji v. Bhau Gopal I.L.R(1916) 41 Bom. 384 ; 19 Bom. L. R. 147 that the scribe there was an attesting witness. That could only have been held on a consideration of the evidence in that case. No evidence has been taken in this case to enable the Court to ascertain whether the scribe was or was not an attesting witness. It is, therefore, not established that he was. That being so, it is not established that the mortgage deed in this case was a duly executed mortgage deed. Therefore I think the appeal must be dismissed with costs.