Abdur Rahim, J.
1. In this case a mortgage bond was executed by two persons. One of them executed it in his own house in* the presence of two attesting witnesses. Afterwards the document was taken to the jail, when the other executant executed it. The attesting witnesses who had already attested the document went to the jail and saw the execution of it by the other executant, but they did not subscribe their names again as attesting witnesses after the document was executed by the 2nd executant in jail. It is the question of the Validity of the mortgage so far as this executant, the 1st defendant, is concerned, that has been argued before us in the appeal.
2. I have, not the least doubt that an attestation of a document before its execution cannot be called proper attestation within the meaning of Section 59 of the Transfer of Property Act. Attestation does not consist merely in seeing the execution of a document. It requires a further act, that is, subscribing the name of the witness on the document as having seen the execution. I think this is involved in the very definition of the word 'attest,' and that is also in accordance with what is laid down by their Lordships of' 'the Privy Council in Shamu Patter v. Abdul Kadir Rowthan 16 Ind. Cas. 250: (1912) M.W.N. 935 : 39 I.A. 218 and Maharaja Bum Narayan Singh v. Adhindra Nath Mukhurji (1916) 1 M.W.N. 428 : 20 C.W.N. 989 : 31 M.L.J. 251 :20 M.L.T. 216 : 25 C.L.J. 115, This is again how it was understood by a Division Bench of this Court in the case of Kotamreddi Seetamrrta v. Vannelakanti Krishnaswamy Row 35 Ind. Cas. 18 It seems to me something like contradiction in' term's to speak of attestation of a document before its execution. Mr. A. Krishnaswami Aiyar argued that, if the so-called witnesses put' down their names to a document intending to see its execution afterwards and then actually saw its execution, such a continuity of intention and action would constitute the act a sufficient attestation within the, meaning of the law. But I fail to see what the intention of the witnesses has got to do with it. The document must be signed by the executant, and that fact must be testified on the document itself by the witnesses who saw its execution.
3. Then it was argued on behalf of the appellants that, in this case, it was not open to the trial Judge to go into this question at all, because the 1st defendant in his written statement admitted that the mortgage bond had been executed. It was argued that this amounts to an admission that the document was validly executed, that is to say, it was not only executed by the 1st defendant but that the requirements of law regarding attestation by two witnesses had been complied with. In the first place, I cannot read the statement as necessarily implying that the requirements of law with respect to attestation had been conformed to. I think all that was meant to be admitted was that the 1st defendant had signed the document. No doubt, no legal objection to the validity of the document was taken in the written statement' by the defendant on the ground that it was not properly attested as required by the law. It was not until the examination of one of the witnesses for the plaintiff that the Subordinate Judge, thinking that the question of due attestation ought to be enquired into, framed the additional issue with respect to this point. It is argued that it was not open to the Subordinate Judge to do this. I do not, however, see any force in this contention Both Section 58 of the Evidence Act and Order-VIIr, Rule 5, of the Civil Procedure Code give a discretion to the trial Judge to require a fact that has been admitted by one of the parties to be proved otherwise than by the admission. And taking this to be merely a case of proof, I think it was within the competence of the trial Judge to require proof of the due attestation of the bond in question. The Legislature in giving discretion to the Court in this conned ion does not in any way attempt to define' under what circumstances the discretion is to be exercised. But I am inclined to hold that in a case where a Court finds that a certain document would not be valid in law unless certain facts were proved, and it doubtful whether those fasts existed, it is competent for it to embark on an enquiry en the subject. I think in the Privy Council case of Shamu Patter v. Abdul Radir Rew-than 16 Ind. Cas. 250 this very point was raised and their Lordships thought that, under such circumstances, the Court had ample power to frame an additional issue. Mr. De Gruyther, the learned Counsel for the appellant, relied upon an admission by the respondent of the execution of the band, but their Lordships held that it was competent to the Court to enquire into the matter.
4. There is also another answer to this argument of the appellants based upon the so-called admission of the 1st defendant. Section 59 of the Transfer of Property Act requires attestation by two witnesses for the validity of the document itself. It says that a mortgage can be effected only by a registered instrument signed by the mortgagor and attested by at least' two witnesses. All the rulings on the subject have interpreted these words as importing that, without such attestation, a document would be ineffectual to create any mortgage. This is in effect the ruling of the Privy Council in Maharaja Ram Narayan Singh v. Adhindra Nath Mukhurji 34 Ind. Cas. 900: 4 L.W. 15 It is not merely a question of proving a document. Section 68 of the Evidence Act requires that one of the attesting witnesses shall be examined in order to prove a document of this character. That is undoubtedly a question of proof. But even if a mortgage bond is proved in that way, the bond would not be valid if the requirements of section1 59 of the Transfer of Property Act regarding attestation by two witnesses had not been complied with. If, as I think, the provisions of Section 59 of the Transfer of Property Act relate to the question of the legal operation of the document itself apart from the mode of proving it, then, there can be no force in the argument based on the. so-called admission, the effect 'of which would only be to dispense with the proof of the document. On these grounds, I think the appeal must fail and be dismissed with costs of the let respondents.
5. I am not prepared to dissent from my learned brother's references to the lower Court's view of its discretion under Section 58 of. the Evidence Act and Order VIII, Rule 5 of the Civil Procedure Code, but I think that that part of the case can be put on a firmer foundation because the 4th and 5th defendants were ex parte and, as in Shamu Patter v. Abdul Kadir Rowthan 16 Ind. Cas. 250 : (1912) M.W.N. 935 : 16 C.L.J. 596, it was the duty of the trial Judge to satisfy himself that the claim was formally proved against them. As regards the remainder of my learned brother's judgment, I respectfully concur.