1. This is a defendant's second appeal against a judgment of the Civil Judge of Benares, dated 31st July 1942 by which he reversed a judgment of the Munsif of Haveli, Benares, dated 1st April 1938. The suit as brought by the plaintiffs-respondents was for a declaration that the house detailed in the plaint was not liable to sale in execution of Suit No. 204 of 1936, and the sale did not bind them as they were owners of the same. The defence was of course the denial of the plaintiffs' title. A number of legal pleas were also taken, namely, that the suit was barred by limitation, it was barred by Section 42, Specific Relief Act, and also by Section 41, T.P. Act. The learned Munsif dismissed the suit but on appeal the suit has been decreed. The points taken before me by learned Counsel for the defendant-appellant are : (1) that the finding of the learned Civil Judge that the plaintiffs were able to prove their pedigree was not correct, (2) that according to the mortgage referred to, the plaintiffs had established their claim only to one-half of the house and (3) as the mortgage was not properly attested it could not be relied upon.
2. I have heard the learned Counsel for the parties and, in my opinion, none of the points raised by the learned Counsel for the appellant has got any force. So far as the question of pedigree is concerned, the clear finding of the learned Civil Judge is that the pedigree as set up by the plaintiffs has been proved. This is a finding of fact behind which this Court cannot go in second appeal. The mortgage referred to is dated 27th December 1892, by which Ram Jiawan an ancestor of the plaintiffs mortgaged half the house to Madho brother of defendant 2. In this mortgage Ram Jiawan stated that he was mortgaging half his share of the house situated in Lakhraj land owned jointly by the mortgagee. It is argued on behalf of the appellant that by this mortgage it appeared that Ram Jiawan only owned a half house while the other half belonged to Madho. On looking closely into the matter it seems that it is not so. It is no doubt true that only half of the house was mortgaged but he did not say that other half of the house did not belong to him (Ram Jiawan). He only said that he was mortgaging half of the house out of that which belonged to him. Then he went on to say that the land on which the mortgaged house stood was jointly owned by the mortgagees. This does not mean that the mortgagees had any share in the house itself nor does it show that they had any share in the land under the house. Probably they had owned the land jointly on a part of which this house was built. The learned Civil Judge has found that Ram Jiawan and members of his family were sole owners of the disputed house and that Madho and Sheonandan were not its owners. I do not think that this finding can be assailed.
3. The third point taken is that the document was not duly attested. It appears that the attesting witness had only marked the document as he was illiterate. Reliance is placed on the definition of the word 'attestation' as given in Section 3, T.P. Act, which runs as follows:
'attested', in relation to an instrument means and must be deemed always to have meant, attested by two or more witnesses each of whom has seen-the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark or of the signature of such other person, and each of whom 6 has signed the instrument in the presence of the executant.
4. It is argued that whereas it has been laid down that the witnesses had seen the executant sign or fix his mark to the instrument both these words are not used with reference to the attesting witness himself who is only described as signing the instrument and therefore it must be held that the attesting witness can only sign and cannot put his mark. This point was raised in Chiranji v. Poorna ('14) 1 A.I.R. 1914 All. 306. In that case Sir Sunder Lal J. held that a man who puts his mark on a mortgage deed as a witness is an attesting witness within the meaning of Section 69, Evidence Act. It is no doubt true that this particular argument was not put before him and has not been discussed in his judgment. But I do not think that it has got any force. It is just possible that the definition has not been very happily worded but I cannot imagine that the Legislature could have ever meant that there could be no attestation by an illiterate person who could not sign his name. That would probably invalidate half the documents in this country where the majority are still illiterate. I therefore must hold following the authority in Chiranji v. Poorna ('14) 1 A.I.R. 1914 All. 306 referred to above that the document was duly attested.
5. I may also remark that this question of attestation is not of vital importance. It is not the mortgage that is being enforced in this case. It has been put only as a piece of evidence in order to show that the property was at one time mortgaged by Ram Jiawan. In any view of the case the appeal has got no force. It is accordingly dismissed with costs. The appellant shall pay the costs of the respondents and bear his own. Leave to appeal under the Letters Patent is refused.