1. The question in this appeal is whether the lower Courts were right in rejecting the mortgage-deed of 1895 in favour of the plaintiff-appellant on the ground that the proof of attestation as required by law was wanting. The deed itself is written by the witness Hari Bhikaji and is signed 'Mark by the hand of Mirjubibi by the hand of Hari Bhikaji', It is attested by three witnesses, one Baba or Bavakhan, who is alive and has given evidence, and the other two witnesses Roshankhan and Sheik Ahmed, who were dead at the date of the suit. Of the last two, Roshankhan has similarly attested the mark of Mirjubibi before the Sub-Registrar made below her acknowledgment as executant. The witness Bavakhan stated that Mirjubibi was not present when he attested it, but that the appellant's father took him to Mirjubibi and she requested him to attest and then presumably he attested it, though he did not ask her if she had executed the document. In the absence of evidence as to the signature of the two witnesses who are dead, both the lower Courts held that it was not proved to have been attested by two witnesses as was necessary under Section 59 of the Transfer of Property Act.
2. The judgment of the lower appellate Court was passed in 1924 prior to the two Acts Nos. XXVII and XXXI of 1926, which have a close bearing on the present question. The former Act, XXVII of 1926, defines the word 'attested' as an addition to Section 3 of the Transfer of Property Act, and widens its meaning beyond that in the decision of their Lordships of the Privy Council in Shamu Patter v. Abdvi Kadir : (1912)14BOMLR1034 The amendment made by this Act XXVII of 1926 has been given a retrospective effect by Act X of 1927 : see Motilal v. Kasambhai : AIR1928Bom16 . The latter Act, XXXI of 1926, modifies g. 68 of the Indian Evidence Act by adding a proviso that it shall not be necessary to call an attesting witness in the case of a mortgage-deed, such as the present, unless its execution is specifically denied.
3. We are of opinion in the present case that there is no such specific denial by the respondents as is necessary under Act XXXI of 1926 before the plaintiff-appellant is called upon to call the attesting witness. The exact words in the written statement are that 'the defendants-respondents have no knowledge of the mortgage, and that if genuine, it must be hollow.' Giving these words their plain effect, they mean that they neither admit nor deny its genuineness, but that they assert absence of consideration even if it is held to be genuine. It is not specifically denied within the meaning of the second Act XXXI of 1926, and if so, it is not strictly necessary for the appellant to call an attesting witness in proof of the execution of it.
4. But even if the written statement be taken to be a specific denial, we are of opinion that execution of the document is properly proved within the meaning of Section 68 of the Indian Evidence Act. Firstly, as regards Roshankhan, he is an attesting witness because he has, at least before the Sub-Registrar, received from the executant Mirjubibi an acknowledgment of her mark within the meaning of Act XXVII of 1926. The other necessary condition is that he signed the instrument in the presence of the executant. But we think in the case of a document of this date that as in the case of Bavakhan, Roshankhan also signed the document in the presence of the executant Mirjubibi. Another reason in favour of sufficient attestation is the signature of the writer. Adopting the test laid down by Batchelor J. in Govind Bhikaji v. Bhavi Gopal I.L.R. (1916) Bom. 384, s.c. 19 Bom. L.R. 147 immediately after the execution by Mirjubibi, Hari has signed his own name under the description of the mark. His object in so doing presumably was, and the effect of his so doing, we think, 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. These facts and this element suffice to distinguish this case from cases such as the case of Dalichand Shivram v. Lotu Sakharam I.L.R. (1919) Bom. 405, s.c. 22 Bom. L.R. 136. We might also refer to the recent case of Lakshman v. Krishnaji : (1927)29BOMLR1425 where, as here, one of the attesting witnesses was available.
5. For these reasons, we hold that the deed of mortgage, Exhibit A. of 1895, is admissible and that its execution is proved.
6. We allow the appeal, set aside the decree of the lower appellate Court, and remand the case to it for decision on the merits.
7. Costs of this appeal to be coats in the remand.