1. This appeal arises out of a suit on a mortgage-bond.
2. The first Court gave the plaintiff a money decree only.
3. On appeal, the District Judge gave him a mortgage decree. The only point that arises in this case is whether the mortgage-bond was attested as required by section 59 of the Transfer of Property Act.
4. According be the plaintiff's case, there were two attesting witnesses Hawai Hashunla and Kali Nath Sircar. As be Hawai Hashunia, there is no dispute. He was present when the document was executed and signed as an attesting witness. Kali Nath ??? was the writer of the bond. He signed the bond in two places but not in the place set apart for the signature of witnesses. It is found by the lower Appellate Court that he wrote his name as a writer and not as an attesting witness but that he was present at Kha time of the execution of the deed and actually saw it. Whether this amounted be attestation within the meaning of section 59 of the Transfer of Property Act, is a point on which different High Courts have held differently.
5. There are decisions of the Allahabad High Court and the Patna High Court in favour of the appellant in Badri Prasad v. Abdul Karim (1) and Ram Bahadur Singh v. Ajodhya Singh (2), But this Court has held in the case of Raj Narain Ghose v. Abdur Rahim (3), that a person who is present and witnesses the execution of a deed and whose name appears on the document, though he is therein described merely as the writer of the deed, is a competent witness to prove the execution of the deed. This case was followed in Dinamoyee Debi v. Ban Behary Kupur (4).
6. It is contended on behalf of the appellant that these cases of the Calcutta High Court have in effect been over-ruled by the decision of the Privy Council in Shamu Patter v. Abdul Kadir Ravuthan (5).
7. But in that case the present question did not arise. The Privy Council case turns on the question whether a person could attest a document on an acknowledgment by the executant that the signature on the document was his.
8. It is also contended that the Calcutta cases can be distinguished because they turn on the interpretation of section 68 of the Evidence Act and not on the interpretation of section 59 of the Transfer of Property Act.
9. But the “attesting witness” referred to in section 68 of the Evidence Act when the question is, as to proof of a mortgage, must have the same meaning as an attesting witness in section 59 of the Transfer of Property Act. If he be not an attesting witness in accordance with the provisions of section 59 of the Transfer of Property Act, he cannot be a competent witness under section 68 of the Evidence Act. We can find nothing in the present case to make this case distinguishable from the Calcutta cases cited above and we follow that decision.
10. The result is that this appeal fails and is dismissed with costs. Appeal dismissed.