Woodroffe, J.:— 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 mortgagor 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 farther 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 prove by evidence affecting those co-defendants that the mortgage was executed and operative. He, however, contends that the effect of the admission by the executant 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 attesting 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, and that where there are other defendants than the party making such admission the document is not admissible in evidence as against them until it has been proved by attesting witnesses 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 Mukhopadhya v. Nitai Churn Bundopadhya 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's Case. 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 for section 70 at all, regard being had to the general provisions of the Evidence Act relating to admissions. 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, 69 and 71 of the Evidence Act.
I therefore dismiss this appeal with costs.
S.M
Appeal dismissed.