1. This is a defendant's appeal arising from a suit for sale of mortgaged property. The execution of the mortgage deed was denied by the defendant-appellants. The mortgagor, the mortgagee and all the attesting witnesses had died before the institution of the suit. The only evidence which the mortgagee produced to prove due execution, of the mortgage deed was that of the son of the mortgagee, who stated that:
I was present at the time of the execution of the mortaage-deed. Ram Sundar and Ram Adhin Bajpai attested the deed. The scribe was Abdul Karim, petition writer. Ram Singh (executant) signed in my presence and that of the attesting witnesses.
2. The witness also identified the signatures of the attesting witnesses: but he did not say that they had signed in his presence. It is argued that the evidence falls short of the requirement of Section 69, Evidence Act. The contention is that if no attesting witness can be found, it must be proved that the 'attestation' of one of the attesting witnesses, at least, is in his handwriting and that the signature of the person executing the document is in the hand-writing of the person, and that it is not enough for the party relying on the document to prove that the signature of one at least of the attesting witnesses is in his own handwriting. The learned advocate ingeniously argues that the word 'attestation' in Section 69 implies that the witness should be an attesting witness in the sense in which that expression is understood in law, that to say, it should be proved that the person purporting to be an attesting witness had seen the executant sign or received acknowledgment from him. 'Assuming this view of Section 69 is correct, I do not think the evidence quoted above falls short of the requirements of that section as the witness identified the signatures of the attesting witnesses. In this view, all the requirements of Section 69 are made out. Both the lower Courts have accepted the evidence as sufficient proof of the mortgage deed in suit.
3. No other question is raised, in this second appeal, which is dismissed under Order 41, Rule 11, Civil P.C.