1. In this case, the deed of mortgage sued on was attested by two witnesses and was signed by the scribe as the writer thereof. One of the attesting witnesses is dead and the plaintiff has not taken steps to examine the other witness who is said to be still alive. He has, however, examined the writer of the document who deposedthat he saw it executed. The Courts below have held that this proof is notsufficient and dismissed, the suit.
2. We are unable to agree with them. The fact that a person calls himself a scribe is not proof that he was not an attesting witness as well. It may be that the writer left the place immediately after he had written the document and before it was signed by the executant. In such a case, he cannot be regarded as an attesting witness. The essence of attestation is that the person must have seen the document executed. The question is one of qualification, but not of the use of any set phraseology. There is plenty of authority for the proposition that a scribe can also be an attesting witness. Veerappudayan v. Muthu Karuppa Thevun 19 Ind. Cas. 589 was relied on by the appellant. That decision lays down that the fact that a scribe wrote the endorsement after the document was executed and attested, was some evidence in favour of regarding him as an attesting witness. This was, followed by a Bench in which one of us sat in Ayyasami Iyengar v. Kylasam Fillai 26 Ind. Cas. 409. It would greatly depend upon the facts of each case whether a scribe is also an attesting witness. As pointed out in Ranu v. Lasemanrao Ind. Cas. 10 Bom. L.R. 943, the time and place of the scribe's endorsement may show that he did not witness the execution. Under such circumstances, to examine him as an attesting witness may give some room to perjured evidence being let in. As regards Radri Prasad v.Abdul Karim 19 Ind. Cas. 451 relied on by the learned Vakil for the respondent, there can be no doubt that the decision was right on the facts found. The scribe signed his memorandum before the document was executed. If that decision lays down that under no circumstances can a scribe be an attesting witness, we are unable to agree with it. Mr. Justice Chamier, who was a party to this judgment, took part in the decision reported as Ram Bahadur Singh v. Ajodhya Singh 20 C.W.N. 699 : 1 P.L.J. 129 as Chief Justice of the Patna High Court. In this case the learned Judge expresses himself more uncompromisingly than in the Allahabad judgment. Mr. Justice Jwala Prasad while concurring with the Chief Justice on the facts of the case, points out that a scribe is not necessarily debarred from being an atteatator. In Raj Narain Ghosh v. Abdur Rahim 6 C.W.N. 454 the same view was taken of the position of a scribe. We do not think Shamu Patter v. Abdul Kadir Rowthan 16 Ind. Cas. 250 : 35 M. 607 : 16 C.W.N. 1009 : (1912) M.W.N. 935 : 14 Bom. L.R. 1034 : 16 C.L J. 596is opposed to this view. In this country less attention should be paid to the name by which a person chooses to style himself than to the character he fills. It will be a question in each case, whether a scribe was intended to witness the execution of a document. That is a matter for the Trial Court. We must, therefore, hold that the a fortiori conclusion come to by the Courts below that because a person called himself a scribe, he was incapable of being regarded as an attesting witness, is not a proposition which we can accept.
3. We must, therefore, reverse the decrees of the Courts below and remand the case for trial to the Court of first instance in the light of the above observations. Farther evidence may be taken. Costs will abide the result.