D. Chatterjee, J.
1. This was a suit upon a mortgage bond. The defendant No. 1 was the executant of the mortgage and the other defendants derived title to the mortgaged property subsequently by execution and certificate sales. The defendant No. 1, executant of the document, admitted the mortgage-deed and the first Court gave a decree on the basis of the mortgage.
2. It appears that defendants Nos. 3 to 5 made an attempt to have the case postponed for the purpose of getting an order of transfer of the case to the Court of the Sub-Judge for trial with another suit in the same matter. Before the order of the District Judge on the application for transfer was recorded the case was disposed of by the learned Munsif, Upon appeal, the learned Sub-Judge remanded the case holding that the document, that is, the mortgage-deed, had not been proved by the examination of any of the attesting witnesses as required by Section 68 of the Evidence Act.
3. On appeal, it is contended before us that the order of the learned Judge below is wrong, in that Section 70 of the Evidence Act provides that the admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested and that, therefore, it was not necessary to prove the attestation of the document.
4. It is contended by the learned Vakil for the respondents, however, that an admission of the execution by the executant has the effect of proving the document as against the party making the admission and not as against them, and as they stated in the written statement that the document was not executed in accordance with law, the document ought to have been proved, so far as they are concerned, in accordance with the general provisions of Section 68.
5. Section 68 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. Section 69 provides for cases where no attesting witness, can be found. Section 70 says that if a person who has executed a document admits the execution, then that will be taken as sufficient proof of its execution as against him, i.e., the person making the admission. Section 70, therefore, seems to be an exception to the general rule contained in Section 68. This exception must be read by the light of the words used in it and so reading the section, the meaning seems to be that an examination of an attesting witness will not be necessary for the purpose of proving the execution if the executant admits that he has executed the document, but this proof must be considered as confined in its operation only to the person making the admission. If that be so, the defendants Nos. 3, 4 and 5, who do not admit execution of the document, cannot be said to be bound by the sufficiency of the proof of the execution supplied by the admission of the executant. This contention of the learned Vakil for the respondents seems to be supported by principle also. The defendant No. 1, I take it, executed the mortgage and thereafter he made sales in favour of the respondents, or the respondents derived title to his right, title and interest existing after the execution of the mortgage. If it were to be held that the respondents were bound by the admission made by the executant subsequent to their acquisition of title, it would be sinning against the law of admissions, because in that case, the executant of the document would be making a derogation from his own grant by making an admission to the detriment of persons deriving title from, or through, him before the admission.
6. In this view of the case, I think that the lower Appellate Court was right in sending the case back for the formal proof of the document as against defendants Nos. 3, 4 and 5, who did not admit the execution of the document. I would, therefore, dismiss the appeal with costs. As there has been a difference of opinion in this case, it will be placed before the Hon'ble the Chief Justice so that it may be referred to a third Judge. The point on which the Court has differed, is whether in a suit on a mortgage-bond, the admission of execution by the, sole mortgagor made after the transfer is sufficient to render it unnecessary for the mortgagee to comply with the provisions of Section 68 of the Evidence Act, in order to prove the execution of the document as against the subsequent transferees of the mortgaged property who do not admit the execution, or must the execution be formally proved against them.
7. In this case, I. regret that I am unable to agree with my learned brother. We are, I think, agreed that Section 70 of the Evidence Act must be read, by way of proviso to Section 68. From this it appears to me to follow that an admission by the sole executant of an attested document of its execution by him; self dispenses with the necessity to call an attesting witness under Section 68 for the purpose of proving its execution. There is a marked difference in the language used in the two Sections 68 and 70. Section 68 speaks of the document being used as evidence, Section 70 of its being proved. Under section. 70 and even apart from it, the admission of a party to an attested document cannot prove it against a person who is, pot, a party,, to it. But I see no reason why such admission should not render the document admissible in evidence against him The admission does not prove the document against him, but it is sufficient to prevent his taking the technical plea that the provisions of Section 68 have not been com plied with.
8. I am aware that a contrary view was expressed by a Divisional Bench of this Court in Jogendra Nath Mukhopadhya v. Nitai Churn Bundopadhya 7 C.W.N. 384. But this is only an obiter dictum, as the document there in question was held to have been proved to be duly attested on other grounds. The correctness of the view taken by the learned Judges who decided this case has been doubted in Ameer Ali and Woodroffe's Law of Evidence 5th Edition, page 506, where it is stated, if the admission of the executant has not the effect of dispensing with proof of attestation there was no necessity for the section at all, as recourse may be had to the general provisions of the Act relating to admissions if the admission of execution is to be used only in the sense of an admission of signing only.
9. It, therefore, seems to me that Section 68 must be read subject to the provisions of subsequent sections and where an executant admits execution of an attested document, the other parties to the suit and proved in the ordinary way without it being necessary to call, or prove the handwriting of an attesting witness.
10. I would, therefore, decree the appeal and set aside the order of the learned Subordinate Judge remanding the case for a fresh trial and direct him to dispose of the appeal on the evidence on the record.
11. In consequence of this difference of opinion, the case was referred to Woodroffe, J.
12. In the case of a document required by law to be attested the admission of a party to it of its execution by himself is under Section 70 of the Evidence Act sufficient proof of its execution as against him. If, therefore, the question had arisen solely between the plaintiff and the mortgager in this case, it would not have been necessary to have called any attesting witnesses or other evidence. The admission by the party to the document would have dispensed with the necessity of all further proof. In the present case, however, there are other defendants than the mortgagor. The learned Pleader who appears on behalf of the plaintiff admits that the admission of the mortgagor is not evidence against his co-defendants and that it will, therefore, be necessary for him to produce by evidence affecting these co-defendants that the mortgage was executed and operative. He, however, contends that the effect of the admission by the executor is to dispense him from proof in a particular form, namely, by calling an attesting witness. He contends that the effect of Sections 68 to 72 of the Evidence Act is that where there are several defendants against whom a mortgage is sought to be proved and one of the defendants being the executant of the document admits execution, that admission, whilst not dispensing with the necessity of proof of the mortgage as against the defendants other than the executant, does dispense with the necessity of calling an attestig witness. I am, however, unable to agree with this contention. The effect of Section 70 is, in my opinion, that the proof by calling attesting witnesses is dispensed with where the party executant admits execution, only as against him, but where there are other defendants than the party making such admission, the document is not admissible in evidence as against them until is has been proved by an attesting witness in the manner prescribed by the Act. It is the common practice that a document is admitted against a particular party only or for a particular purpose and not as against other parties or for other purposes. In the case before me it is, in my opinion, necessary not only to prove the document as against the defendants other than the admitting executant but to prove it in the way required by Sections 68 and 69, namely, the production of an attesting witness. The admission of the executing party has no effect at all except as regards the party himself. As regards others, the position is just the same as if there had been no such admission; that is, the case must be proved against them in the way required by those sections. The decision in the case of Jogendra Nath Muk-hopadhya. v. Nitai Churn Bandopadhya 7 C.W.N. 384 does not touch the matter before us, for there the question was not as to the effect of an admission by an executant upon the question of the proof required against parties other than the executant nor does the passage cited from the text book quoted in Mr. Justice Newbould's judgment refer to the matter now in issue, but to the point which appears to have been raised by the decision in Jogendra Nath Mukhopadhya v. Nilai Chum Bandopadhya 7 C.W.N. 384. That decision is open to this construction that even when the executant admits execution, his admission is proof of execution or signing only and does not dispense with proof of attestation. If this be the meaning of that judgment, I am unable to agree with it as I think that the admission of the executant has the effect of dispensing with the proof of attestation as against him. For if the admission of execution is to be understood only in the sense of an admission of signing, then there was no necessity of Section 70 at all, regard being had to the general provisions of the Evidence Act relating to admission. This is also indicated by the last words of Section 70 though it be a document required by law to be attested.' I, therefore, agree with the conclusion of Mr. Justice Chatterjee that in a suit on a mortgage-bond the admission of execution by the sole mortgagor does not dispense with the necessity of complying with the provisions of Section 68 of the Evidence Act, in order to prove the execution of the document as against other parties in the suit who do not admit such execution. I think that a document must be proved as against them in accordance with the provisions of Sections 68, 65 and 71 of the Evidence Act.
13. I, therefore, dismiss this appeal with costs, three gold mohurs, each hearing.