Mookerjee and Teunon, JJ.
1. This is an appeal on behalf of the second defendant in a mortgage suit. The mortgage security which the plaintiff respondent seeks to enforce is alleged to have been executed in his favour by the first two defendants on the 28th May 1898. The principal sum advanced is stated to have been Rs. 5,000, which carried interest at the rate of 12 per cent, per annum with quarterly rests, and was repayable on the 28th November 1898. The present action was commenced on the 11th March 1905, upon the allegation that nothing had been paid towards the satisfaction of the mortgage debt, except four sums paid on account of interest, namely, Rs. 150 on the 20th September 1898, Rs. 200 on the 16th February 1899, Rs. 400 on the 5th February 1901, and Rs. 600 on the 11th March 1902. The parties joined as defendants were the mortgagors (the first two defendants), a subsequent mortgagee, the third defendant, who claimed to have taken a security from the mortgagors on the 6th October 1902, and the fourth defendant, a third encumbrancer, who had taken a security from the first defendant mortgagor on the 26th September 1903. The first defendant admitted execution of the bond and receipt of the consideration. The second defendant, her sister, denied that she had taken the loan, alleged that the mortgage deed was invalid for various reasons, and further pleaded the bar of limitation. She also denied the mortgage in favour of the third defendant. The third defendant, the second mortgagee from both the mortgagors, prayed that provision might be made in the decree for the satisfaction of his debt after the claim of the plaintiff had been satisfied in full from the sale proceeds of the mortgaged premises. The fourth defendant, the third mortgagee from one of the mortgagors, made a similar prayer, but he put the plaintiff to the proof of his claim. On these pleadings, four issues were raised, the first of which covered the question of the genuineness of the mortgage transactions, so far as the second defendant was concerned, in favour of the plaintiff and the third defendant. The second issue related to the question of the validity of the mortgages, as affected by the omission of the mortgagors, who were the administrators of the estate of their father, to obtain the sanction of the Court which had granted letters of administration. The third issue related to the question of the payments of interest alleged by the plaintiff so as to save his claim for a personal decree on the basis of his mortgage. The fourth issue expressly raised the question of limitation. The Subordinate Judge found upon the evidence that the several mortgage deeds were genuine, that they had been executed by the defendants mortgagors and duly attested by witnesses, that the principal sums had been advanced as recited in the deeds, and that the payments alleged to have been made on account of interest had been made on behalf of both the mortgagors. He overruled the objection based on the ground of the failure of the mortgagors to obtain the sanction of the Court by which they had been appointed administrators, inasmuch as they acted in their capacity as the heiresses of their father, and not as administrators of his estate. As regards the alleged payments of interest, the Subordinate Judge found that the payments had been made through the husband of the first defendant on behalf of his wife, as also of his sister-in-law. In this view the Subordinate Judge decreed the claim, and directed that in default of payment to the plaintiff of the judgment debt within the period of six months specified in the decree, the mortgaged properties were to be sold, and out of the sale proceeds the plaintiff was to be paid first, then the third defendant out of the surplus left, and one-half of the balance, if any, was to be applied in satisfaction of the claim of the fourth defendant. The second defendant alone has appealed against this decree, and on her behalf the decision of the Subordinate Judge has been assailed substantially on four grounds: namely, first, that the mortgage deeds executed in favour of the plaintiff as also of the third defendant were not shown to have been duly attested, and were consequently inoperative as mortgage securities; secondly, that the mortgage deeds were not proved to have been executed by her under such circumstances as would make them binding upon a purdanashin lady, that the deeds were not read over to her, and that the effect of the covenant for payment of compound interest was not explained to her; thirdly, that the payments alleged to have been made were either not actually made at all, or, if made, were not made by an agent duly authorized by her in this behalf; and, fourthly, that the decree as framed is erroneous, and not in accordance with the provisions of the Transfer of Property Act, which does not contemplate the payment of the dues of subsequent encumbrancers in an action by a prior encumbrancer to enforce his own security.
2. In support of the first ground urged on behalf of the appellant, it has been contended that, under Section 59 of the Transfer of Property Act, the mortgage instrument to be operative as such must be attested by at least two witnesses, that an attestation by a witness who receives an acknowledgment of execution from the mortgagor is not sufficient, and that, in order to effect a valid attestation, the execution of the instrument must take place in the presence of the witness who sees the execution and affixes his signature in token of this fact. In support of these propositions, reliance has been placed upon the cases of Girindra Nath Mukerjee v. Bejoy Gopal Mukerjee 1898, I.L.R. 26 Calc. 246, and Abdul Karim v. Salimun (1899) I.L.R. 27 Calc. 190. Reference was also made to the cases of Ford v. Kettle (1882) 9 Q.B.D. 139, Raj Narain Ghosh v. Abdur Rahim (1901) 5 c. W.N. 454, Dinamoyee Debi v. Bon Behari Kapur (1902) 7 C.W.N. 160 and Sasi Bhusan Pal v. Chandra Peshkar (1906) I.L.R. 33 Cal 861. In answer to these arguments, it has been contended on behalf of the respondents that the view taken in the cases of Girindra Nath Mukerjee v. Bejoy Gopal Mukerjee 1898, I.L.R. 26 Calc. 246 and Abdul Karim v. Salimun (1899) I.L.R. 27 Calc. 190 is erroneous, that the contrary view adopted in Ramji Haribhai v. Bai Parvati (1902) I.L.R. 27 Bom. 91 and Ganga Dei v. Shiam Sundar (1903) I.L.R. 26 All. 69 ought to be adopted; that in any event, on the analogy of cases relating to the attestation of wills, it is not necessary to prove that the attesting witness saw the execution of the deed, but that it is sufficient compliance with the law if the document is executed in his presence; and finally, that when the document is jointly executed by more than one person in the presence of each other, each executant may be treated as an attesting witness in respect of the signature of every other executant.
3. Before we deal with the question of law raised, it is necessary to ascertain precisely the circumstances under which the mortgage deeds in controversy in the present litigation were executed by the first two defendants. From the evidence, it appears that the mortgagors, Nawab Murtaza Begum and Nawab Sarur Jigar Begum, were daughters of Prince Sir Jahan Kader Mirza, nephew and son-in-law of the late King of Oudh. Their father died on the 16th April 1896; on the 15th September 1896 they took out letters of administration of the estate of their father from this Court in its testamentary and intestate jurisdiction. The two sisters at that time, and for several years afterwards, lived together in amity in their paternal house; and there is evidence to show that the younger sister, the second defendant, regarded her eldest sister almost as her mother. Some time after the marriage of the eldest sister in 1887, the younger sister had been married on the 7th February 1891. She lived with her husband for about two months, and then, at the request of her father, resided in his palace. After the death of her father she lived with her husband for a short time; but in February, 1898, there were differences between them, due, it is alleged, to the interference of the husband of the eldest sister. The result was a suit by the husband of the second sister for restitution of conjugal rights. This was commenced in 1899, and was decided by the Subordinate Judge on the 20th June 1900. It is fairly clear upon the evidence that at the time of the execution of the mortgage in favour of the plaintiff on the 28th May 1898 the two sisters lived together in peace and amity and there was entire mutual confidence between them. There is also no room for reasonable doubt that the terms between the sisters continued to be the same up to the time of the execution of the second mortgage in favour of the third defendant on the 6th October 1902. So far, therefore, as the suggestion is made that the second defendant had no independent advice at the time of these transactions, there is no solid foundation for it. She had the advice of her sister, a literate lady of considerable intelligence, whose interests were carefully watched by her husband, Prince Mirza Mahamad Mookim. It has indeed been suggested that the second defendant was betrayed by her eldest sister; that she never received any portion of the mortgage money; that she took no part in the mortgage transactions; and that, in substance, there were elaborate schemes prepared by her sister and her brother-in-law with a view to defraud her. These allegations have, in our opinion, been recklessly made, and have not been established by the evidence on the record. It is further plain that the two ladies, after the death of their father, got involved in expensive litigation regarding his estate, and considerable sums were needed to pay the solicitors and to meet the other costs of the litigation. Under these circumstances, we feel no doubt whatever as to the substantial truth of the story of the execution of the first and second mortgages by the two sisters as told in the Court below by the witnesses behalf of the plaintiff and the third defendant. The first defendant was examined on commission at considerable length, and upon her testimony, which we see no reason whatever to distrust, it is proved that the two sisters executed jointly the two mortgage bonds and received the consideration money. The documents were read over and explained to them; and there is no reason to suppose that they did not fully appreciate the meaning and effect thereof. The first defendant admit, with perfect frankness, that the transactions were genuine, and that she and her sister executed the deeds on receipt of the consideration, and with full knowledge of their contents. We have also the evidence of Jotindra Nath Bose, a solicitor of this Court, in whose presence the deeds were executed, and he is fully supported by Mahamad Abdul Hossein and the husband of the first defendant, Prince Mookim. Under these circumstances, the denial of the second defendant cannot be accepted as trustworthy, and her deposition, recorded at great length by the Commissioner, when closely examined, does not produce a favourable impression as to the truth of her allegations. The only question, therefore, which really requires consideration is whether the two mortgage deeds were duly attested, as required by Section 59 of the Transfer of Property Act, which provides that a mortgage, when the principal money secured is Its. 100 or upwards, may be effected only by a registered instrument, signed by the mortgagor and attested by at least two witnesses.
4. So far as the first mortgage bond, which is the foundation of the claim of the plaintiff is concerned, the evidence shows that at the time of the execution the two ladies were seated behind a purdah. The first defendant put her signature, the second, who was illiterate, put her mark, and her thumb impression was taken thrice, as the first and second impressions were not very distinct; beneath her mark, her name was written by Prince Mookim, who identified her. The document was explained by the solicitor, Jotindra Nath Bose, who, as well as Abdul Hossein, a servant of the first defendant, signed the deed as attesting witnesses. It is admitted that the solicitor was outside the purdah, and so far as we can gather from the evidence, Abdul Hossein also did not actually see the second defendant put her mark on the deed. The deed was taken inside the purdah by Prince Mookim, but as his sister-in-law was not accustomed to appear before him, a wooden partition was set up to screen the second defendant from the view of the Prince, and it was from behind this wooden screen that she put her cross-mark and made her thumb impression. Prince Mookim asserts that the second defendant put her cross-mark and thumb impression in his presence, and it is possible that, in spite of the wooden partition, he was able to see the hand of his sister-in-law, for the first defendant states that her sister put her hand out from behind the partition, purdah, and made her thumb impression before her husband. The position, therefore; appears to have been this. The solicitor, Jotindra Nath Bose, was outside the purdah; Prince Mookim, with the document in his hand, went inside where the two ladies were seated; a wooden partition was then put up to screen the second defendant from her brother-in-law. Prince Mookim saw his wife and his sister-in-law both execute the document. Abul Hossein, the servant of the first defendant, was also inside the room, but he did not actually see the second defendant put her mark or her thumb impression on the deed;. he, however, signed the deed as an attesting witness in the presence of the ladies; when the document was brought outside, Prince Mookim signed the deed in token of his identification of the signature, mark, and seals of the ladies. Jotindra Nath Bose, solicitor, also signed as an attesting witness. So far as the second mortgage bond of the third defendant is concerned, the circumstances were somewhat similar. On the face of that document, there appear the signature of the first defendant, the mark of 'the second defendant as well as her thumb impression and her name written underneath by the pen of Prince Mookim. Jotindra Nath Bose and Prince Mookim signed the document as attesting witnesses. Besides, the evidence of the first defendant as to the precise circumstance of the execution and attestation of the second deed, we have the deposition of the solicitor and of Prince Mookim, As in the case of the first deed, the solicitor remained outside the purdah; Prince Mookim took the document inside and it was executed in his presence; it was then brought outside and signed by the solicitor and the Prince as attesting witnesses. Upon these facts, it has been argued, on behalf of the second defendant, that neither of the two deeds was validly attested, so far as she is concerned, because there were no two persons who had actually seen her execute the document, and subsequently attested it in token thereof. On behalf of the plaintiff and third defendant, it has been argued in reply, first, that as the first defendant undoubtedly saw her sister execute the document, she may be regarded as an attesting witness; and secondly, that for the purpose of valid attestation, it is not essential that the witnesses should actually see the signature made, or the mark, seal, or thumb impression affixed, but that it is sufficient compliance with the law if the execution takes place in the presence of the witnesses, although the executants are screened off from the gaze of the witnesses themselves. In support of this latter proposition, reliance has been placed upon the cases of Har Mongol Narain Singh v. Ganaur Singh (1907) 13 C.W.N. 40 and Isri Prosad v. Rai Gunga Prosad Singh Bahadur (1909) 14 C.W.N. 165.
5. In so far as the first of the two propositions which we are invited by the respondents to accept, is concerned, we are unable to adopt it either as well founded on principle or supported by authorities. In the Laws of England, edited by Lord Halsbury, Vol. X, page 389, it is stated that the attesting witness must be some person who is not a party to the deed; and a statement of its execution in his presence should be written on the deed and signed by him. This view is supported by cases of the highest authority, based on principles not peculiar to English jurisprudence. Thus in the case of Freshfield v. Seed (1842) 9 M. & W 404; 60 R.R.. 769, in answer to an argument that the parties to a document should be considered as so many attesting witnesses in respect of the execution, it was ruled:that the term 'attested manifestly implies that a witness shall be present to testify that the party who is to execute;the deed has done the act required, the object of which is that some person should verify that the deed was signed voluntarily. Again in the case of Wickham v. Marquis of Bath (1865) L.R. 1 Eq. 17, 24, it was ruled by Romilly, M.R., that co-executants cannot be regarded as attesting witnesses, because they do not sign the deed for the purpose of attesting the execution, but with the object of conveying the interest they have in the property transferred. The same view is supported by the case of Seal v. Claridge (1881) 7 Q.B.D. 516, 519, where Lord Selborne held that a person who is a party to the deed cannot be regarded as an attesting witness, on the ground that if the person for whose benefit the instrument is executed is allowed to be an attesting witness, the very object of attestation, namely, the prevention of fraudulent malpractice, may be completely defeated. The principle upon which the rule is based was clearly set forth in the case of Amick v. Woodworth (1901) 58 Ohio 86: 'the true reason of the disqualification is that to permit a grantee to attest as a witness the execution of an instrument made to himself, or take its acknowledgment as an officer, where its attestation and acknowledgment are necessary to give it validity, would be against public policy, and practically defeat the real purpose of the law, which is to prevent the perpetration of frauds on grantors, and afford reasonable assurance to those who deal with, or on the faith of, such instruments that they are genuine and represent bond fide transactions.' This view was emphasised in the case of Donovan v. Saint Anthony Co. (1899) 8 N.D. 585; 73 Am. St. Pep. 779; 46 L.R.A. 721, where it was observed that, if the contrary view were maintained, the provisions of a statute requiring the execution of a mortgage to be attested by two witnesses might be nullified, and as illustration it was observed that 'a mortgage may be given by two persons to a third; the mortgagee may attest and the mortgagors one for the other; then, a person may give one mortgage to two persons; these two may furnish the attestation; an interpretation of the statute, which renders such a contingency possible, is clearly inadmissible, because there would be no guarantee of the bond fides of the transactions.' This line of reasoning appears to us to be based on good sense, and is consistent with the principles of justice, equity and good conscience, according to which our Courts are bound to decide. We must, therefore, overrule the first ground taken on behalf of the respondents.
6. As regards the second branch of the contention of the respondents, its validity has to be determined by reference to the true meaning of the term attestation. As pointed out by this Court in the case of Sasi Bhusan Pal v. Chandra Peshkar (1906) I.L.R. 33 Calc. 861; 4 C.L.J. 41 the term attestation is not defined in the Transfer of Property Act, but there can be no doubt as to what it means. The case of Freshfied v. Reed (1842) 9 M. & W. 404, to which we have just referred, is an authority for the proposition that when an instrument is required to be attested, the meaning is that a witness should be present at its execution and should testify that it has been executed by the proper person. Again, in the case of Ford v. Kettle (1882) 9 Q.B.D. 139, and Roberts v. Phillips (1855) 4 E. & B. 450, it was held that to attest an instrument was not merely to subscribe one's name to it as having been present at its execution, but included also essentially the presence, in fact, at its execution of some disinterested person capable of giving evidence as to what took place. These cases contemplate, as the requisite of a good attestation, that the document must have been executed in the presence of an attesting witness, who subscribes his name to the instrument in token of this circumstance. In some cases, however, the rule has been stated in terms which imply that the attesting witness must have seen the executant sign the instrument. Thus in the case of Body v. Halse  1 Q.B. 203, Lord Coleridge, in pronouncing against the validity of an attestation, observed that the witness did not see the appellant sign the claim. Again, in Luper v. Werks (1890) 19 Oreg. 122; 23 Pac. 850, it was ruled that attestation means that the subscribing witness saw the writing executed, and thereupon signed his name as witness. Preponderance of judicial opinion, however, is in favour of the view that an attesting witness is a person in whose presence the instrument is executed. Thus Sweet in his Law Dictionary states that, when A executes a deed in the presence of B, and B signs his name on the document as a token of his having witnessed As execution, B is said to attest the execution. The Standard Dictionary defines attestation to be the subscription by a person of his name to a written instrument, to signify that the same was executed in his presence. In the Oxford Dictionary (Vol. I, page 551) a similar definition is given, and reference is made to the statement of Blackstone (Commentaries, Volume 2, page 307), that the last requisite to the validity of a deed is the attestation of execution of it in the presence of witnesses. If, then, we adopt this definition, the question arises, when may an instrument be deemed to have been executed in the presence of a witness? Reference may, in this connection, be made to the principles which have been recognized in cases of attestation of wills which are required in England to be attested by witnesses in the presence of the testator. No useful purpose, however, would be served by a minute examination of the cases on the subject which are not directly in point and are not always easy to reconcile. It may be generally stated, as the result of the decisions, that presence involves two ideas--namely, mental cognition of the act, and physical contiguity; in other words, the person in whose presence the act is done must be able mentally to know what is being done, and what is done in the presence of a person, must take place in physical proximity to him, though it is impossible to lay down any inflexible rule as to what degree of proximity is essential. This may be illustrated by a reference to three leading decisions on the subject, which will show to what extent judicial decisions have gone. In one of the earliest cases on the subject, Casson v. Dade (1781) 1 Brown C.C. 99, it was held that where the testatrix sat in her carriage, opposite to the window of the attorney's office in which the will was attested, the attestation was valid, because the testatrix might see the witnesses through the windows of her carriage and of the office. Again, in Newton v. Clarke (1839) 2 Curt. 320 a testator intending to execute a codicil, signed the same while lying in bed, there being present in the room the two witnesses who attested the codicil, the curtains at the foot of the bed were, however, drawn at the time to screen the testator from the fireplace; the result was, that one of the witnesses could not actually see the testator sign his name, nor could the testator see that witness subscribe the codicil as attesting it. Sir Herbert Jenner held that the codicil was validly attested, as the testator and the witness signed their names in the presence of each other. In the case of Re Piercy (1845) 1 Rob. 2784 Notes of Cases 250, Sir H. Jenner Fust expressed the opinion that he would be prepared to hold, if necessary, that where the testator is blind, the witnesses may be said to have attested in his presence, provided the positions of the witnesses be such that the testator, if he had his eyesight, might have been able to see them sign. The principle deducible from these cases clearly supports the view that where, as here, according to the custom of the country, purdanashin ladies are unable to appear before male witnesses, a document which, by independent testimony, is conclusively proved to have been executed by a purdanashin lady, may reasonably be deemed to have been attested by witnesses who were present outside the purdah, and who, before attestation, satisfied themselves that there was no fraud, and that the document had been actually executed by the lady screened off from their gaze. This is the view which was adopted by Brett J. in the case of Harmongal Narain Singh v. Ganaur Singh (1907) 13 C.W.N. 40, and by Stephen and Chatterjee JJ. in Isri Prosad v. Rai Gunga Prosad Singh Bahadur (1909) 14 C.W.N. 165. These decisions are based not merely on grounds of convenience, but on a sound principle analogous to that recognized in the case of execution of wills In this view, it becomes unnecessary for us to pronounce any opinion upon the question of the validity of attestation by a witness who is not present at the execution, but subscribes his name subsequently on the strength of an acknowledgment by the executant. There is considerable divergence of judicial opinion upon this point, as is indicated by the cases discussed at the Bar in the course of the argument; it may further be pointed out that the Madras High Court has recently adopted the Calcutta view in Shamu Patter v. Abdul Kadir (1908) I.L.R. 31 Mad. 215, and in Bombay also, where the opposite view had been adopted, there is a tendency to revert to the Calcutta view: Ranu v. Laxman (1908) 10 Bom. L.R. 943 referring to Burdett v. Spilsbury (1843) 10 Cl & Fin. 340. We may further point out that, as suggested by the respondents, under certain circumstances a grantee may be estopped to claim that his deed is invalid because it is not duly attested (Jones on Real Property, Volume II, Section 1089); it is not necessary, however, to deal with this aspect of the case, because, in our opinion, the two mortgage-deeds executed by the second defendant jointly with her sister were duly attested. The first ground upon which the decision of the Subordinate Judge is assailed must consequently be overruled.
7. The second ground urged on behalf of the appellant is to the effect that the mortgage deeds are not proved to have been executed by her under such circumstances as would make them binding upon a purdanashin lady, that she had no independent advice, and that the effect of the provisions as to compound interest was not explained to her. In support of this position, reliance has been placed upon the case of Shambati koeri v. Jago Bibi (1902) I.L.R. 29 Calc. 749. In our opinion, there is no substance in this contention. No doubt, as has been repeatedly ruled by the Judicial Committee in the case of deeds and powers executed by purdanashin ladies, it is requisite that those who rely upon them should satisfy the Court that they had been explained to, and understood by, those who executed them; in other words, the Court should be careful to see that deeds taken from purdanashin women have been fairly taken, and that parties executing them have been free agents and have been duly informed of what they were about. Judged in the light of these principles, the present case is, in our opinion, not open to successful attack. The evidence is conclusive that the solicitor, Jotindra Nath Bose, read over and explained the document to the lady, the terms of which, it may be observed, were simple and easy of comprehension. She had the advice of her eldest sister who joined her in the transaction, and the husband of the eldest sister looked after the matter for the benefit of both. The money was paid into the hands of the ladies, and was urgently needed to meet the expenses of the litigation then pending in respect of the estate of their father. Under these circumstances, it is impossible to hold that the mortgage deeds which had been properly executed, and to which the consent of the appellant had been deliberately given, could be set aside. The second contention of the appellant is, therefore, groundless and cannot be sustained.
8. The third ground raises the question of limitation and does not demand elaborate examination, as there is really no substance in it. In so far as a decree for sale of the mortgaged properties is concerned, no question of limitation obviously arises, but a question of limitation does arise in respect of the claim for a personal decree against the mortgagors. The plaintiff relies upon Section 20 of the Limitation Act of 1877, and alleges two payments on account of interest within a period of six years antecedent to the suit. That the payments were actually made is conclusively proved by the evidence. The only question which requires consideration is whether the payments were made by an agent of the appellant, duly authorised in this behalf. Now the payments were made by Prince Mookim, the husband of the first defendant; and having regard to the position of the two sisters at the time when the payments were made, we have no doubt that the Subordinate Judge was right in his conclusion that Prince Mookim, holding as he did a power of attorney from both, was the agent of both the ladies. The attempt made by the appellant to establish that her sister at the time was hostile to her, and acted in a way inimical to her interests, has completely failed. The third ground, therefore, cannot be sustained
9. The fourth ground raises a question as to the form of the decree which directs the second and third mortgagees to be paid out of the surplus of the sale-proceeds realised in execution of the decree obtained by the first mortgagee. In view of the decision of this Court in Mackintosh v. Watkins (1904) 1 C.L.J. 31, the objection must be treated as groundless. No doubt if the amount due to the first mortgagee is paid, there will be no sale of the mortgaged properties, and the second and third mortgagees will consequently obtain no relief in this suit. If, on the other hand, the amount due to the first mortgagee is not paid within the period allowed by the decree, the property will be sold, and no good reason has been suggested why, after the claim of the first mortgagee is satisfied, the second and third mortgagees should not be paid out of the surplus sale-proceeds; there is thus no substance in the fourth ground, which must, therefore, be overruled.
10. The result is, that the decree made by the Court below is affirmed, and this appeal dismissed with costs.