Sundar Lal, J.
1. This is a suit upon a deed which purports to be a deed of mortgage bearing date 17th July ,1903. The document bears the signature and mark of Musammai Sahodra, the executant. It bears the signature of one Gopal, an attesting witness, and the only other witness whose name is written by the scribe is Bansi. In the margin of the deed is given the name of another witness or a person who was expected to be an attesting witness, who is described as Bansi son of Randhir, caste Gola Purab, resident of Saujan, by acknowledgment of the executant.' This is written in the handwriting of the scribe. There is no signature or mark of this witness Bansi on the deed. He is dead, and there is nothing to show that he authorised the scribe to sign his name for him. He has not himself put his signature or mark. The question is whether he is an attesting witness within the meaning of Section 59 of the Transfer of Property Act. In a recent case which came before the Patna High Court Ram Bahadur Singh v. Ajodhya Singh 34 Ind. Cas. 370 : 20 C.W.N. 699 : 1 P.L.J. 129, Chief Justice Chamier and Mr. Justice Jwala Prasad came to the conclusion that to be an attesting witness within the meaning of Section 59 of the Transfer of Property Act the witness must not only have seen the execution of the document but should have also subscribed as a witness, that is, he must have put his own mark or signature to it: It may be that in the present case the scribe wrote up what he found in the draft of the deed with the intention of subsequently obtaining the signature or mark of Bansi on the acknowledgment of the executant, as before the Privy Council ruling in Shamu Patter v. Abdul Kadir Rowthan 16 Ind. Cas. 250 : 16 C.W.N. (sic) : 23 M.L.J. 321 : 12 M.L.T. 338 : (1912) M.W.N. 935 : 10 A.L.J. 259 : 14 Bom. L.R. 1034 : 16 C.L.J. 596 : 35 M. 607 : 39 I.A. 220 (P.C.) witnessing a document on the mere acknowledgment of the executant was regarded as sufficient by this Court. In our opinion in the absence of proof that the scribe was authorised by Bansi to sign for him as an attesting witness or to put his mark or signature to the document on his behalf as a witness, the document lias not been duly attested by at least two witnesses and is not a valid mortgage according to the aforesaid Privy Council ruling. We think that the document cannot operate as a mortgage as against the transferee of the property. It creates no charge, as has been recently ruled by a Full Bench of this Court in Collector of Mirzapur v. Bhagwan Prashad 18 Ind. Cas. 311 : 35 A. 164 : 11 A.L.J. 141. The suit for sale of the property, therefore, fails. It is, however, a suit upon a registered document and has been brought within six years from the date of the cause of action. The plaintiff is entitled to a money-decree against Musammat Sahodra. We, therefore, vary the decree of the Court below by dismissing the suit for sale and making a money-decree for the claim against Musammat Sahodra with costs.
2. It is as well to add a caution against treating an important question like this, namely, as to whether an alleged attestation or execution is genuine or not, which may obviously involve an investigation of a criminal act in the way in which it has been treated by the Court below. That Court has assumed in favour of the document that a witness who was actually called before the Court must have seen the alleged executant touch the pen of the scribe QS an authority to sign for him. although there is not a scrap of evidence on the point.
3. We allow the appeal of the transferee with costs but amend the decree of the Court below by making a decree for money against Musammat Sahodra with costs.