Harry Griffin and Chamier, JJ.
1. This was a suit upon a mortgage for Rs. 99 made in December, 1884. The claim was decreed by the first court, but was dismissed by the District Judge on appeal on the ground that the mortgage deed had not been proved as required by Section 68 of the Evidence Act.
2. The only witness called to prove the execution of the deed was Ghulam Jilani, the man who wrote out the deed. He deposed that the deed was executed in his presence. The question is whether he was an attesting witness within the meaning of Section 68 of the Evidence Act. He signed his name on the deed in the usual way, but he did so for the purpose of showing that it had been written out by him, not for the purpose of showing that he was an attesting witness. In fact there can be no doubt that he wrote his name on the deed before the deed was signed by the executant. The appellants rely upon the decision of Burkitt J. in Radha Kishen v. Fateh Ali Khan (1888) I.L.R., 2O. A11., 532 in which it seems to have been held that Section 68 had been complied with where the plaintiff had called 'scribe of the deed, who, though not an attesting witness, had affixed his name to the deed and who swore that the deed had been executed in his presence'. That decision was cited with approval by HARINGTON J. in Raj Narain Ghosh v. Abdur Rahim (1901) 5 C.W.N., 454. BURKITT J. professed to follow the decision of BANERJI and AIKMAN J.J. in Muhammad Ali v. Jafar Khan Weekly Notes, 1897, p. 146. We do not think that those learned judges intended to hold in that case that a man should be regarded as an attesting witness merely because he had written out the deed and signed his name on it and sworn that the deed was executed in his presence. We think that they intended to hold only that if the writer of a deed signed it with a view to testifying to the fact of the execution he would be an attesting witness although he was not so described on the face of the deed. Unless the report of the case of Radha Kishen v. Fateh Ali Khan is misleading, we think that Burkitt J. must have misinterpreted the decision of Banerji and Aikman JJ.
3. In Ranu v. Laxmanrao (1908) I.L.R., 33 Bom., 41 it was held, following Burdett v. Spilsbury (1843) 10 C. and F., 340, that an attesting witness was a witness who had seen the deed executed and who had signed it as a witness. In the recent case of Shamu Patter v. Abdul Kadir Ravuthan (1912) I.L.R., 35 Mad., 607 their Lordships of the Privy Council quoted the decision in Burdett v. Spilsbury with approval, and in particular approved of the statement of the Lord Chancellor that 'the party who sees the will executed is in fact a witness to it and if he subscribes as a witness he is then an attesting witness'. They held that the word 'attested' in Section 59 of the Transfer of Property Act was used in that sense. It is evident that the word 'attesting' in Section 68 of the Evidence Act is used in the same sense. Ghulam Jilani may have witnessed the execution of the deed now in suit, but he did not sign the deed as a witness. We must therefore hold that he is not an attesting witness and the production of his evidence was not a compliance with Section 60 of the Evidence Act. We think, however, that the case should go back to the lower appellate court in order that the plaintiffs may have an opportunity of producing further evidence. Ghulam Jilani stated that one of the attesting witnesses was still alive. The decision of BURKITT J. justified the plaintiffs in supposing that they had complied with law. There is before us an affidavit that the plaintiffs asked the District Judge to give them an opportunity of producing other evidence. We allow the appeal, set aside the decision of the lower appellate court and remand the case to that court in order that it may be disposed of according to law with reference to the above remarks. Costs in this Court to be costs in the cause.