1. This appeal arises out of a suit upon a mortgage bond.
2. The defendant admitted the execution of the bond but pleaded payment and satisfaction of it. He also raised the defence that the bond should not be regarded as a mortgage bond.
3. The Court of first instance held that the execution of the bond not being challenged, the necessity of its proof did not arise. That Court overruled the other pleas of the defendant and gave a decree to the plaintiff.
4. On appeal by the defendant, the learned Additional District Judge was of opinion that the provisions of Section 59 of the Transfer of Property Act had not been complied with. He held that the scribe having executed the deed on behalf of the appellant was not competent to attest his own signature, and there being no other evidence, allowed the appeal and dismissed the suit.
5. It has been contended on behalf of the plaintiff who is the appellant before us that, having regard to the provisions of Section 70 of the Evidence Act, there was no necessity for calling any attesting witness under Section 68 of the Act; and reliance was placed upon the cases of Satish Chandra Mitra v. Jogendra Nath Mahalanobis 34 Ind. Cas. 862 : 44 C. 345 : 20 C. W. N. 1044 : 24 C. L. J. 175 and Niharan Chandra Sen v. Nagindra Chandra Sen 44 Ind. Cas. 984 : 22 C. W. N. 444.
6. In those oases, however, the only question related to proof of execution of the mortgage-bond. No question was raised before, or decided by, this Court, in either of the two cases as to validity of the mortgage-bond with reference to the provisions of Section 59 of the Transfer of Property Act. The two questions are different, one being the question of proof of execution of a document required to be attested by sailing one attesting witness under Section 68 of the Evidence Act, which, however, is not required where the execution of the document is admitted by the executant as laid down in Section 70 of the Evidence Act. The other question relates to tee validity of the mortgage even though the document might be proved according to law. This distinction does not appear to have been kept in view in the Court below and although the question of the validity of the mortgage-bond was set up in the written statement and put in issue, the Court of first instance, at any rate, does not appear to have appreciated the distinction between the two.
7. It appears that the mortgage bond, on the face of it, contained the names of four attesting witnesses of whom two were illiterate and the scribe of the deed says that he put down the names of those illiterate witnesses at their request. It is not clearly stated, however, whether they were attesting witnesses in the sense that the document was executed in their precede. There were, however, two other witnesses who signed their own names and although the scribe by reason of his having signed the name of the executant on the document on his behalf is not a competent attesting witness, as laid down in the case of Rajani Kanta Bhadra v. Panchananda 48 Ind. Cas. 720, 23 C. W. N. 290 : 46 C. 552, there are, as stated above, other persons whose names appear as attesting witnesses in the document. Under the circumstances, the plaintiff should be given an opportunity of producing evidence to show that the document was executed in the presence of attesting witnesses so as to satisfy the requirements of Section 59 of the Transfer of Property Act. This, however, must be on terms, as the point was taken in the written statement.
8. We accordingly direct that upon the plaintiff appellant paying to the defendant-respondent all the costs incurred up to this stage within a fortnight of the arrival of this order in the Court of Appeal below, that Court will allow the plaintiff an opportunity of adducing evidence to show that the document was properly attested within the meaning of Section 59 of the Transfer of Property Act and then dispose of the case according to law. The Court of Appeal below may direct the Court of first instance to take fresh evidence under Order XLI, Rule 42.
9. If the aforesaid costs are not paid within the time specified, the appeal will stand dismissed with costs.