Ghose and Stevens, JJ.
1. The only question with which we are concerned in this appeal is whether the mortgage security upon which the suit of the plaintiff was founded was executed by the defendant No. 2 Sheikh Abdul Karim, the appellant before us, as provided by law.
2. Section 59 of the Transfer of Property Act provides that 'where the principal money secured is one hundred rupees or upwards (and in this case the consideration is above one hundred rupees), a mortgage can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses;' and so on. It appears upon the statement of facts, made to us by the learned Vakil for the appellant (the respondent not being represented before us), that though there are several witnesses to the mortgage deed in question, only two of them have been examined, namely, Vilayat Hossain and Furhat Hossain. So far as the first named witness is concerned, it would appear from the judgment of the Subordinate Judge that this witness was in no way certain whether he was present at the time when the executants put their signatures on the document; for he said in re-examination that he did not remember whether or not the bond was signed in his presence. And we observe that the learned Judge does not say that this witness proves anything to the effect that the defendant No. 2 signed his name in his presence. On the contrary he states as follows: 'If one witness is called under Section 68, Evidence Act, that witness must of course prove that the document was signed by the executants in his presence and attested by himself, and at least one other witness. Here there is no such evidence, but it is clear that the present defendant Abdul Karim admitted execution to Moulvi Furhat Hossain after he had signed the bond and before Moulvi Furhat Hossain attested it,' and so on, clearly indicating that, save and except the evidence of Furhat Hossain, there, is no other evidence to prove that the document in question was signed in his presence or in the presence of any other witness by the executants.
3. Referring, again, to the evidence of Moulvi Furhat Hossain the learned Judge says: 'The admission of a party to the document will, so far as such party is concerned, supersede the necessity either of calling the attesting witness or of giving any other evidence.' And later on, he states that the executants admitted before Moulvi Furhat Hossain that they had signed the deed and had received the consideration money.
4. The learned Judge, having regard to the evidence of the said witness, considers that the requirements of Section 59 of the Transfer of Property Act have been complied with; and referring to the provisions of Section 70 of the Indian Evidence Act, he is of opinion that the admission of the executants before this witness is sufficient in law to make the mortgage deed in question a good and operative document. Section 68, however, of the said Act provides that 'if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.' Now there can be no doubt that the document with which we are concerned is a document which was required by law to be attested; and here the question arises, what is the meaning of the word 'attested' as used in Section 68 of the Evidence Act, and in Section 59 of the Transfer of Property Act. In a very recent case before this Court, namely, the case of Girindra Nath Mukerjee v. Bejoy Gopal Mukerjee (1898) I.L.R., 26 Cal., 246, where a similar question was raised, a Divisional Bench of this Court (Maclean, C.J., and Banerjee, J.) observed as follows: 'The attestation required by Section 59 of the Transfer of Property Act is an attestation by witnesses of the execution of the document and not of the admission of execution.' We entirely concur in this observation. It distinctly meets the view which has been adopted by the learned District Judge in this case; for he is of opinion, as already stated, that the evidence of Moulvi Furhat Hossain is sufficient for the requirements of the law. It will be observed that Section 70 of the Evidence Act relates only to the admission of a party in the course of the trial of a suit, and not to the attestation of a document by the admission of the party executing it. And if we refer to Sections 68, 69, 70 and 71 of the Evidence Act, it will be found that they all relate to the evidence of witnesses or admission by parties at the trial, and have no relation to anything like that upon which the learned Judge has relied in holding that the admission before Moulvi Furhat Hossain by the executants satisfies the requirements of the law. We think, upon the facts as represented by the learned Vakil for the appellant and upon the facts as disclosed in the judgments of the Courts below, that there has not been an attestation of the mortgage bond in question within the meaning of Section 59 of the Transfer of Property Act.
5. In this view of the matter it follows that, so far as the defendant No. 2 is concerned, the plaintiff is not entitled to enforce his mortgage lien. The appeal will, therefore, be allowed, and the decree of the Lower Appellate Court will be set aside, and that of the Court of First Instance dismissing the plaintiff's suit as against the defendant No. 2 will be restored with costs in all the Courts.