Das, J.This was an action by the plaintiffs-respondents to enforce a mortgage-bond executed in their favour by defendant No. 1, the appellant before us, and by the other defendants who are respondents before us. The learned District Judge has granted a decree for the full amount claimed as against defendant No. 1, but he has dismissed the suit as against the defendants other than defendant No. 1.

2. The mortgage bond was executed by defendant No. 1, by her adult son defendant No. 2, by her minor sons defendants Nos. 3 to 5, by the minor son of defendant No. 2 and by defendant No. 7, the husband of defendant No. 1. This mortgage-bond was executed on the 17th August 1906 as a security for an advance of Rs. 29,000 made by the plaintiffs to the defendants. It appears, however, that Rs. 4,700 was subsequently returned by the defendants to the plaintiffs, so that the principal sum claimed in this section is Rs. 24,300. It is the common case that the properties which were secured by the mortgage-bond of the 17th August 1906 belong to the defendant No. 1, who has an interest in these properties under the Will of one Madan Mohan Lal. This Madan Mohan Lal, to whom the properties originally belonged, died sometime in 1882, leaving a Will, dated the 21st December 1881, whereby he appointed defendant No. 7 as the executor of the Will. He devised the properties to one Ratan Bibi, the mother of defendant No. 1, for her life and upon her death to defendant No. 1 for her life and after her death to her descendants. Ratan Bibi died on the 14th October 1903, and it is undisputed that at the time when the mortgage-bond was executed defendant No. 1 was entitled to these properties for her lifetime.

3. On behalf of the appellants two questions have been argued before us: first, that the mortgage-bond was not attested in the manner required by Section 59 of the Transfer of Property Act and secondly, that the mortgage-bond cannot be enforced as against defendant No. 1, inasmuch as she is a pardanashin lady and was entirely under the influence of her husband, defendant No. 7, and inasmuch as the learned District Judge has found that in entering into the transaction she did not receive any independent advice and that her husband, defendant No. 7, mismanaged the estate and that one of the objects of the transaction was to exonerate defendant No. 7 from the effects of bis mismanagement.

4. I will first consider the question whether the mortgage bond was validly attested. Section 59 of the Transfer of Property Act lays down that where the principal money secured is one hundred rupees or upwards, a mortgage can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. It has been laid down by the Judicial Committee that attestation of a mortgage-deed within the meaning of Section 59 of the Transfer of Property Act must be made by the witnesses signing their names after seeing the actual execution of the deed and that mere acknowledgment of her signature by the executant is not sufficient. As has been said on very high authority, "attest" means that the person shall be present and see what passes and shall, when required, bear witness to the facts. The Lord Chancellor summed up the conclusion at which he arrived in these words: The party who sees the Will executed is in fact a witness to it; if he subscribes as a witness he is then an attesting witness." Burdett v. Spilsbury (1843) 10 Clause & Fin, 340 : 59 R.R. 105 : 8 E.R. 772.

5. How then does the present case stand on facts The document itself does not show that it was attested in the manner required by Section 59 of the Transfer of Property Act. There are indeed numerous persons who have subscribed their names as witnesses, but each and every one of them has subscribed his name as a witness on the admission of due execution by the executants. Mr. Manuk on behalf of the plaintiffs-respondents suggests that the form as used by the witnesses is admittedly incorrect, because they undoubtedly saw the execution of the document by at least the male executants of the same. That may be so, but so far as the form is concerned, it certainly does not satisfy the requirements of Section 59 of the Transfer of Property Act.

6. When we come to the actual evidence of these witnesses, the case stands on no better footing. The plaintiffs have examined five witnesses on this point, and they all say that they signed the document as witnesses on the admission of one of the male executants. This is wholly insufficient, and if there was nothing else in the case, I would be compelled to dismiss it.

7. But it was urged that it was wholly unnecessary for the plaintiffs to prove the execution of the document, as defendant No. 1 in her evidence has admitted execution of it. There can be no doubt that defendant No. 1 in her evidence admitted having executed the document, and the question which we have to consider is this: Does this admission render valid that which according to the decisions of the Judicial Committee is invalid Section 70 of the Evidence Act provides as follows:--"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." It has been held that provided the admission is made during the course of the trial, it will dispense with the necessity of calling the attesting witnesses and of proving due execution of the document, The learned authors of Woodroffe on Evidence say as follows:

8. "Attestation is only a form of solemn proof required in certain contested oases by special legislative enactments and it is difficult to understand why witnesses should be sailed to prove a document against a party who formally admits that it is a valid document as against him." This view has been accepted in a series of cases. In the case of Satish Chandra Mitra v. Jogendra Nath 34 Ind. Cas. 862 : 20 C.W.N. 1044 : it was held that the effect of Section is that the proof by calling attesting witnesses is dispensed with when the party executant admits execution of the document. In the case of Nibaran Chandra Sen v. Nagendra Chandra Sen (Ram Chandra Sen) 44 Ind. Cas. 984 : 22 C.W.N. 444 it was held that admission of execution of an attested document by the executant or by a person representing his interests is sufficient proof of its execution against the person making such admission. These cases were followed in this Court in the case of Nageshwar Prashad v. Bachu Singh 53 Ind. Cas. 79 : 4 P.L.J. 511.

9. If the matter were res integra, I should doubt whether the admission of a party can render valid that which is invalid. The question is--is the rule enunciated in Section 59 of the Transfer of Property Act a rule of law affecting the validity of the mortgage or is it a rule of evidence affecting the proof of the document If it be a rule of evidence, the question becomes one of proof and the admission of a party would be in the circumstances quite sufficient, But if it be a rule of law, then it is difficult to understand how the admission of a party helps the solution of the problem. My own view is that Section 70 of the Evidence Act operates only where the mortgagee has not given any evidence at all of due execution of the document by the mortgagor, but relies on the admission by the mortgagor. If, for instance, the mortgagor admits the execution of the document in the written statement, it is wholly unnecessary for the mortgagee to adduce any evidence as to the execution of the document. But the matter would stand on an entirely different footing if the mortgagee produces his evidence of execution and that evidence establishes that the document was not attested in the manner required by Section 59 of the Transfer of Property Act. I am, however, bound by the decisions of the Calcutta High Court and of this Court, In accordance with those decisions I must hold that the admission of the defendant renders it unnecessary for the plaintiffs to prove that the document was executed and attested in the manner required by Section 59 of the Transfer of Property Act.

10. I now come to the next question argued on behalf of the appellant. The learned District Judge has found that the appellant did not receive any independent advice in the matter. He has also found that by this document her husband, defendant No. 7, is exonerated from the effects of his mismanagement and that this bond has thrown the burden of the debts on the estate itself. It has been held by the Judicial Committee in the case of Kali Baksh Singh v. Ram Gopai Singh 21 Ind. Cas. 985 : 18 C.W.N. 282 : 16 O.C. 378 : (1914) M.W.N. 112 : 12 A.L.J. 115 : 15 M.L.T. 130 : 19 C.L.J. 172 : 1 O.L.J. 67 : 26 M.L.J. 121 : 16 Bom. L.R. 147 : 36 A. 81 : 41 I.A. 23that inability to prove that the lady had independent advice is not of itself fatal to the validity of the deed. Lord Shaw in the course of his judgment put the whole law on the subject in this form--"The legal protection which the law gives to a pardanashin lady cannot be transmuted into a legal disability".

11. As I understand the law, it is a question of fact in each case whether the obtaining of independent advice would really have made any difference to the executant. If upon a review of the facts, which include the nature of the thing done and the training and habit of mind of the grantor, as well as the proximate circumstances affecting the execution, the conclusion is reached that the obtaining of independent advice would not really have made any difference in the result, the deed ought to stand.

12. In order then to test the validity of the argument we have to enquire into the nature of the transaction. As I have said, there was an advance of Rs. 24,300 made on this document. Now, as the document says, this mortgage-debt was incurred in order to enable the mortgagors to pay off certain debts apparently binding on the mortgagors. I will take these antecedent debts one by one, in order to see what the independent advice would have been had the defendant No. 1 taken such independent advice.

13. The first is an item of Rs. 5,119-3 due to one Mathura Prasad on a decree. It appears that Mathura obtained a mortgage-decree against the present defendants on the foot of a mortgage executed by Baijnath Prosad as executor under the Will of Madan Mohon Lal. The present appellant contested that suit on the ground that her husband had no authority to mortgage the properties. But the learned Subordinate Judge who heard that suit decreed the claim of Mathura Prosad as against all the defendants. The money advanced by the plaintiffs was paid to Mathura Prosad on the date when the property was put up for sale in execution of the decree obtained by Mathura. There is little doubt that this decree was binding upon the appellant and that no one could have advised her not to pay off this decretal amount. The next item is an item of Rs. 3,386 due to Sri Kallar Sukul on the foot of a mortgage-decree obtained by Sri Kallar Sukul against the present defendants on the 14th February 1905, It was impossible for the appellant to resist this decree. The next item is one of Rs. 4,684 paid to discharge the claim of Upendra Nath Sarkar against the present defendants. Upendra Nath Sarkar obtained a mortgage-decree against the defendants and in execution of the mortgage-decree put up the properties mortgaged for sale. The next item is one of Rs. 3,514 due to Ambika Prasad on a mortgage executed by the present defendants in his favour on the 8th December 1905. It appears from the recitals in the mortgage-bond that the money was borrowed from Ambika Prasad in order to save certain properties from sale in execution of decrees obtained against the defendants. It is impossible to say that this mortgage-bond was not binding upon defendant No. 1. The next item is one of Rs. 9,912 due on the foot of a mortgage executed by the present defendants in favour of Amrit Singh on the 1st August 1904, The recitals in the mortgage-bond show that there were considerable litigations between defendant No. 1 and her mother Musammat Ratan Bibi and that it was farther necessary for the defendants to institute a suit in order to avoid a thika patta granted by Ratan Bibi in favour of one Lachman Singh. I am unable to say that this bond was net binding on defendant No. 1.

14. It is unnecessary to deal with the other items, because these cover the amount actually advanced by the plaintiffs to the defendants. It has, in my opinion, been established that the document was read and explained to the lady. As the lady took part in all the previous transactions which were binding on her, it is impossible to say that any one whose advice she may have sought would have advised her not to execute this mortgage bond. I am of opinion, therefore, that the absence of independent legal advice does not render the mortgage-bond unenforceable as against defendant No. 1. I must, therefore, dismiss this appeal with costs.

15. There, is a cross objection on behalf of the plaintiffs-respondents. They urge that the suit should have been decreed as against all the defendants, and not merely as against defendant No. 1. This contention is, in my opinion, entitled to prevail. We are not in the action concerned with the question of the construction of the Will under which the defendant No. 1 takes a life-estate. This is a mortgage action and the plaintiffs are entitled to a mortgage-decree against the executants of the mortgage. It is entirely foreign to the scope of the suit to consider what is the exact interest possessed by each of the defendants. I would allow this cross objection, The result is that the plaintiffs will be entitled to a mortgage-decree as against all the defendants. Period of redemption six months from the date of this judgment.

Adami, J.

16. I agree.