Harington, J.:— This is a mortgage suit, and the only substantial question between the parties is whether the four mortgage deeds which have been tendered have been proved as being properly executed.
Sec. 59 of the Transfer of Property Act provides that a mortgage such as in the present case can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Sec. 68 of the Evidence 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.
In the present case the witnesses who have been called to prove the due execution of the mortgage deeds have been described as the persons who wrote the deeds; in the case of the first deed Johtir Ally and in the case of the last three deeds a man named Gopal Chandra Sen.
The objection taken by counsel for the infant Defendant is that these two persons are merely the respective writers of the deeds in question and cannot be regarded as attesting witnesses. The objection, as I have understood it, is that the writers were not attesting witnesses. The objection was the same in all four deeds except that the writer of one deed was different from the writer of the other three. The question as to what constitutes the attestation of a document, was considered in an old case decided in London in 1850. It is there stated that attestation means that the person shall be present and see what passes. The question has also arisen in this country in the case of Radha Kissen v. Fateh Ali Ram, which was decided in the Allahabad High Court. It was held there that if the scribe of the bond had in fact witnessed the execution of it he would be a competent witness for the purpose of proving the execution.
Neither in the Evidence Act nor in the Transfer of Property Act is there a definition of what is meant by attestation. Nor is there any form given of an attestation clause. In the absence of anything to show that it is incumbent upon the attesting witness to be described as such in a deed which he attests, I am of opinion that a person who was present and witnessed the execution and whose name appears on the document is a competent witness to prove the execution. I further hold that in this case it has been shown that the provisions of the Transfer of Property Act have been complied with because it indicates that affirmative evidence is called to show that not only did the witnesses of the deeds in question in fact witness the execution, but that also another person was present who also witnessed the signing of the deeds in question by the executant.
It is shown that two persons were present and saw the executant sign the deeds, they were present and saw what passed; one of them, namely, the writer of the one deed and the writer of the three other deeds, one of the persons present has been called to prove what passed. In my opinion the proof that he has given is sufficient and the execution of the mortgage deeds is good.
As that is the only issue raised, the Plaintiff will be entitled to the usual mortgage decree.
Messrs Gregory & Jones, Attorneys for the Plaintiff.
Messrs O' Camell, and Remfry & Son, Attorneys for the Defendants.
S.R.D