1. The only point that arises in this second appeal is whether the Courts before were correct in holding that the mortgage deed in suit was not attested in the manner required by law.
2. The mortgage deed bears the signature of the executor and in the margin of the deed there are the names of two persons purporting to be witnessess since each name is preceded by the letter 'g' (gawah). There is a fourth name in the margin, namely, Thakur Prasad; but this name is not preceded by the letter 'g' but by the latter 'd' (dastkhat) showing that Thakur Prasad did not purport to sign as a witness of the deed. The evidence shows that Thakur Prasad was in fact the scribe of the deed.
3. As regards the two signatures of the persons who purport to have signed as witnesses it has been found that one of them, namely Maheshar Ram did not sign his name himself and that there was no proof that he had authorised the scribe to sign for him as an attesting witness. For this reason the lower appellate Court held that Maheshar Ram was not a valid attesting witness. We may mention that the trial Court found that Maheshwar Ram was not even present at the execution of the deed but the lower appellate Court did not come to a finding of fact on that point.
4. The lower appellate Court proceeds upon the view that the other witness Ramjan Ram, whose name appears as an attesting witness, may be regarded as a valid attesting witness, but the document cannot be considered to have been duly attested because Thakur Prasad, who is the only other person who could be regarded as an attesting witness did not sign the document as a witness but signed it as a scribe. We have already pointed out that Thakur Prasad, as the scribe of the deed, must have intended to make a distinction between himself and the other two marginal witnesses since he only purports to have signed the deed, whereas the other two marginal witnesses purport to have signed the deed as witnesses. Although the scribe of a deed can be an attesting witness we do not think that he is so in the present case since it appears that he did not intend to sign the deed as an attesting witness.
5. There is another objection to the validity of Thakur Prasad's signature as an attesting witness. The definition of ''attested' which was introduced in the Transfer of Property Act by the amending Act of 1926 to which retrospective effect was expressly given by the amending Act of 1927, lays down the meaning which should be attached to the word 'attested' and we are bound to deem that the word always had that meaning. Under this definition it is necessary that the attesting witness must have signed the instrument in the presence of the executant. In the present case, Thakur Prasad deposes that the executant signed the document in his presence, but there is no evidence that Thakur Prasad himself signed the document in the presence of the executant. On this ground also we hold that the signature of Thakur Prasad cannot be accepted as the signature of an attesting witness.
6. We accordingly dismiss the appeal with costs.