G.K. Misra, C.J.

1. The suit was filed for recovery of Rs. 564. 80P. on the strength of Ext. 1 dated 7-8-1862 which is a mortgagee by conditional sale for Rs. 400/- with a stipulation that if the mortgage is not put into possession, interest was payable as mentioned in the document. In the written statement the execution of the mortgage bond was not specifically denied. On the contrary, it was admitted by the Defendants that possession of the mortgaged property was handed over to the Plaintiff in accordance with the terms of the mortgage bond and Plaintiff remained in possession from 1962 to 1966 whereby the mortgage dues were fully discharged out of the usufruct and Plaintiff was to refund an amount of Rs. 31, 05 P. In paragraph 2 of the written statement it was pleaded that the mortgage deed was not attested in accordance with law.

The learned trial Court decreed the Plaintiffs suit holding that the mortgage bond (Ext. 1) was duly executed and attested and that the Plaintiff was not put in possession of the mortgage security, the possession remaining, with the Defendants as before. The learned lower appellate Court agreed with the trial Court that possession of the mortgage security was not parted with and the Defendants continued in possession and Plaintiff was not in possession of the mortgaged property. It, however, found that Ext. 1 was not duly attested and accordingly dismissed the suit. Plaintiff has filed the second appeal.

2. The only point for consideration in this appeal is whether Ext. I was duly attested.

3. In Section 3 of the Transfer of Property Act "attested" in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has been some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.

The gist of the meaning of the word attested is that witnesses shall sign the document in the presence of the executant and similarly, the executant would sign the document in the presence of witnesses. Each must see the other signing the document.

Under Section 59 of the T.P. Act when the principal money secured is one hundred rupees or onwards, a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.

4. Ext. 1 has admittedly been signed by two witnesses. P.w. 1, one of the attesting witnesses, has been examined in the case. He deposed, to the following effect in examination-in-chief:

Parameswar Paikray (Defendant No. 1) and Laxmidhar Ray (Defendant No. 2) and Parameswar Paikray as guardian for minor Saakarsan Ray (Defendant No. 3) have executed a deed of mortgage by conditional sale in favour of the Plaintiff on 7-8-1962 before mr. Ganesh Chandra Mohanty scribed the said deed and read over the same to the executants before me. The executants after attesting it signed the said deed before me. I have signed the said deed. Anama Rout has ,also signed the said deed.

Thus, on the evidence of p. w. 1 there is no dispute that two witnesses signed the document and the executants also signed it.

The learned lower appellate Court did not accept Ext. 1 as having been attested on the basis of law laid down in Sita Dakuani and Ors. v. Rama Chandra and Ors. 33 (1969) C.L.T. 811. As p.w. 1 did not depose that witnesses signed Ext. 1 In the presence of the executants and executants signed in the presence of the witnesses, it held that there was no proof of attestation.

5. It is to be doted that the aforesaid Single Bench decision was reversed in Rama Nahak and Ors. v. Sita Dakuani and Ors. : A.I.R. 1970 Ori 82 [LQ/OriHC/1969/176] . This Division Bench decision has fully discussed the law on the point with references to Sections 3 and 59 of the T.P. Act and Sections 68 and 70 of the Evidence Act. The final conclusion as laid down in that decision may be extracted:

On a plain reading of Section 70 of the Evidence Act it appears to us that the admission referred to therein is admission of a validly attested document which means that when a party admits execution of a document, he thereby not only admits the mere signing thereof, but also the entire series of acts which give validity to the document concerned. The preponderance of authorities is in favour of this interpretation. Where, therefore, the party admits execution of the mortgage bond, it means that he admits its valid execution including therein the valid attestation thereof. It is thereafter unnecessary for the mortgagee to proceed to prove attestation. But if a mortgagee does not proceed to lead evidence regarding attestation and the evidence so let in falls short of proof of due attestation as has happened in the present case, thin also the mortgagee is entitled to succeed in the action on the footing that it is a valid mortgage bond. But, if such evidence adduced by the mortgagee shows positively that the document has not been attested in accordance with law, then despite admission of its execution by the mortgagor, the mortgagee would fail.

The aforesaid conclusion was reached after reviewing all the relevant authorities on the point. It is unnecessary to repeat the self-same, ground.

It is, however, necessary to deal with two decisions of the Supreme Court which were not brought to the notice of the Division Bench though they support that decision.

In Sri Sri Sri Kishore Chandra Singh Deo v. Babu Ganesh Prasad Bhagat and Ors. : A.I.R. 1954 S.C. 316 p.w. 1 stated in his evidence thus:

I attested the mortgage bond executed by Zamindar, Bodagada, in favour of Radha Prasad Bhagat. Mr. Dinabandhu Banerjee and others also attested the bond. The other attestors alsowitnessed the execution.

This evidence was challenged before their Lordships as not being in conformity with proof of attestation as required under Section 3 of the T.P. Act. Their Lordships repelled this contention by observing thus:

This evidence which was not subjected to any cross-examination is Sufficient to satisfy the requirements of law as to valid attestation....

In Naresh Chandra Das Gupta v. Paresh Chandra Das Gupta and Anr. : A.I.R. 1955 S.C. 363 the facts were that p.ws. 1 and 2 were the attestors to a Will and they stated in examination-in-chief that the testator signed the Will in their presence and they attested his signature. They did not add that they signed the will in the presence of the testator. A contention was advanced that in the absence of such evidence it must be held that there was no due attestation. Their Lordships repelled the contention by the following observation:

The learned Judges of the High Court were of the opinion that as the execution and attestation took place at one sitting at the residence of p.w. 1, where the attestor and the witnesses had assembled by appointment, they must all of them been present until the matter was finished, and as the witnesses were not cross-examined on the question of attestation, it could properly be inferred that there was due attestation. It cannot be laid down as a matter of law that because the witnesses did not state in examination-chief that they signed the Will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator.

6. In the light of the tests laid down in Bama Nahak and Ors. v. Sita Dakuani and Ors. : A.I.R. 1970 Ori 82, [LQ/OriHC/1969/176] and the two Supreme Court decisions, the facts of this case may be examined. Though there was assertion of execution of Ext. 1 in the plaint it was not specifically denied in the written statement. In the written statement an objection was, however, specifically taken that the attestation was not in accordance with law. In the circumstances it is for the Plaintiff to prove attestation. Plaintiff purported to prove the same through p.w. 1. P.w. 1 stated that the executants after attesting the mortgage bond signed the same, He also deposed that he and Anama Rout signed the document. The entire transaction was in one sitting and the evidence of p.w. 1 dearly shows that they signed the document in the presence of the executants and the executants signed in their presence though the witness did not make such a statement in specific words. No cross-examination was made on the question of attestation. The tests laid down in the two Supreme Court decisions and the aforesaid Orissa decision have been satisfied and in the facts and circumstances of this case attestation must be taken to have been proved. It is to be remembered that the Defendants took a specific plea that the mortgaged property was delivered under the mortgage bond and the mortgagee remained in possession and out of the usufruct the mortgage dues had been satisfied.

7. The lower appellate Court acted contrary to law in relying upon the Single Bench decision which has been overruled by the Division Bench and in not keeping in view the : principles laid down in the Supreme Court decisions.

8. In the result, the judgment of the lower appellate Court is set aside and that of the trial Court is restored. The second appeal is allowed with costs throughout.