Roe, J.This appeal arises from a decree of the Additional Subordinate Judge of Monghyr upon twelve mortgage-bonds, details of which are given in the judgment, as against three members of a Mitakshara joint family---Adit Narain, Daroga and Nageshwar Prasad. Included among the defendants is the mother of Nageshwar, she being the widow and he the son of one Kuldip Sahai. Kuldip Sahai was, prior to his death in 1909, the managing member of the family, and at his decease Adit Narain became the managing member.

2. Up to 1907 Daroga Prasad was added as a party to the several deeds as a minor under the guardianship of Kuldip Sahai. From 1907 onwards the bonds were executed by Daroga Prasad himself as a major. The last two bonds are dated a 1910 and were executed by Adit Narain for himself and for Nageshwar Prasad, a minor, and by Daroga Prasad for himself. Of the twelve bonds, seven, being Nos. 9, 11, 16, 17, 18, 20, and 28 of the schedule attached to the judgment, were proved by Mohammad Wali, who had signed as scribe of these documents and no other attesting witness was called.

3. It was contended in the Court below that these documents could not be adduced in evidence without the calling of an attesting witness. This point was found against the defendants by the learned Subordinate Judge. It was also contended by Daroga Prasad that he was a minor at the time when these documents were executed, and, further, that he did not execute them of his own free will but under coercion from his brother These points were also found against Daroga Prasad by the learned Subordinate Judge. It was further urged that there had been no proof of the passing of consideration; and that if consideration did pass then it was not proved that that consideration was for a family necessity. These points were also found against the defendants. In appeal to this Court Mr. Kulwant Sahai argues the case again on the tame basis.

4. With regard to the attestation of these documents, it is specifically admitted in the pleadings by Adit Narain and by Daroga Prasad that these documents were executed by them. Therefore, as against them, no proof of attestation was necessary. The plaintiffs have been put to proof as against Nageshwar Prasad of execution of these documents; and it is now settled law for this province that one who signs as a scribe must prove specifically that in signing as a scribe he intended to sign as a witness. The authority for this proposition is to be found in Sam Bahadur Singh v. Ajodkya Singh 34 Ind. Cas. 370 : 1 P. L. J. 129 : 20 C. W. N. 699 : 3 P. L. W. 93. It has been suggested that that was not a judgment of a Divisional Bench, inasmuch as Mr. Justice Jwala Prasad did not concur in the ruling of Chief Justice Chamier, but that matter has been set at rest by the decision of Miller, G. J., and Mullick, J., in Letters Patent Appeal No. 13 of 1917. A scribe who deliberately elects to affix the word scribe to his name in preference to the word witness places upon himself an almost insupportable burden of proof that he signed as a scribe and not as an attesting witness. In this case, moreover, it is not shown in a single line of the scribes evidence that he signed as an attesting witness. I hold that he signed as a scribe only and that on his evidence alone the documents are not admissible in evidence.

5. The next point for consideration is the majority or minority of Daroga Prasad at the time when these documents were executed. Now as the learned Subordinate Judge has pointed out, there, could be no motive whatever for any fraud on the part of the mortgagee in obtaining the signature of Daroga Prasad. The debts, as I shall presently show, were all incurred for family necessity and the signature of the managing member of the family, as the guardian of any member who might have been a minor at the time of execution, would be sufficient to bind that minor and create a lien upon the minors property. The fact; that mortgagors and mortgagees agreed that these documents should be executed by Daroga Prasad himself suggests strongly that at the time of the execution Daroga Prasad was a major. The evidence to the contrary is of the flimsiest character. A horoscope has been produced which has not impressed me in the least. A document which purports to be a copy of an extract from a school attendance register has also been produced, and in addition a certificate by the present headmaster of this school to the effect that when Daroga Prasad was admitted into the sohosl, his age was suoh that he could not hava been a major at the time of the execution of these documents.

6. Now with regard to the register itself it, does not seem to me to be admissible in evidence at all, for the reason that it is an entry made by one Raj Kumar Lal, who is alive and within reach of the process of the Court. The certificate given by the headmaster is also a mere statement made upon hearsay and is peculiarly valueless as evidence, seeing that it is dated the 25th July 1914, and was obviously procured solely for the purpose of this case.

7. The learned Subordinate Judge accepted the oral evidence of the plaintiffs witness Nanak Prasad to the effect that Daroga was at the time, when the suit was brought, between 25 and 26 years of age: and it follows that if this evidence be believed, he was at the time of the execution of the documents of age. Upon this point I agree with the learned Subordinate Judge. The documents are, therefore, binding upon Daroga Prasad, unless he can show that he executed them in circumstances which would render his signature void. Such circumstances have not been shown, and indeed Mr. Kulwant Sahai has not made any attempt to support Daroga Prasads allegation of coercion.

8. The third point for consideration is the passing of consideration, As the learned Sub-ordinate Judge points out, the whole history of the case indicates clearly that consideration passed. Adit Narain, who is now, and has been since the death of Kuldip Sahai, the managing member, admits that consideration did pass. His efforts to obtain a settlement with the mortgagee through Mr. Finch indicate that he recognised that the debts were binding upon the family, I see no reason to differ from the learned Subordinate judges finding of fact that consideration did pass. I see also no reason to differ from his finding that the consideration was taken for purposes of the family. In each document this specific purpose was set out. The mortgagee gives evidence that on each occasion on which money was taken he made enquiries as to whether the necessity stated in the bond was an existing necessity. He was not cross-examined upon this point, and we must accept his evidence upon it as unrebutted.

9. The last question is one as against Nageshwar Prasad, raised through the respondents Vakil, Mr. Sushil Madhab Mullick. The result of the failure of the plaintiff in the Court below to call an attesting witness, to the documents is that a decree can be made only against the interests of Adit Narain and Daroga Prasad. But Mr. Mullick contends that inasmuch as the debts were for family necessity and were admitted by Kuldip Sahai in a subsequent mortgage document which has been legally proved, the nature of the debt relieves the mortgagee of the necessity for calling attesting witnesses to the original documents. This proposition I am unable to accept. I concede that the nature of the debt would render the minor liable to discharge it, but I cannot admit that the nature of the debt would create any lien upon the property. A lien can only be created by a registered instrument, and in order to prove that the original instrument is a mortgage document it is necessary that the provisions of Section 68 of the Evidence Act be observed. The extra-judicial admission of Kuldip Sahai may or may not render it unnecessary to prove the original documents as against himself. It does not relieve the plaintiff of the necessity to prove them as against his son.

10. Nageshwar Prasad has not admitted the original documents. We have, therefore, no cognizance of any instrument creating, a lien upon the property of the joint family as against Nageshwar Prasad, In my view, therefore, Nageshwar Prasad should be relieved from liability under the decree made. Upon the seven documents not legally proved, a decree should be made against Adit Narain and Daroga Prasad for the whole of the sums covered by these seven mortgages, and the right, title and interest of Adit Narain and Daroga Prasad brought to sale in execution of the decree so made.

11. Nageshwar Prasad has made no appeal with regard to the five documents not enumerated at an earlier stage of the judgment. He will, therefore, be bound by the decree made on these five documents. The amount due thereupon will be realised by the sale of the right, title and interest of the whole joint family in the property covered by these five documents. The period of grace in all cases will be six months from the date of this decree, and interest will run at the prescribed rate on the debt only up to the expiry of the period of grace, and thereafter at the Court: rite on the whole decree, including costs.

12. I would make no order as to costs in this appeal. The plaintiff will have his costs in the lower Court in proportion to the amount decreed. The defendants will bear their own costs.

Atkinson, J.

13. I frankly concur in the judgment of the Court which has been delivered by my learned brother. But having regard to the argument which has been addressed to us I desire to add a few brief observations on my own behalf.

14. I consider that the construction of Section 70 of the Evidence Act of 1872 is accurately and clearly laid down in the considered judgment of Mr. Justice Woodroffe in Satish Chandra Mitra v. Jogendra Nath 34 Ind. Cas. 862 : 20 C. W. N. 1044 : 24 C. L. T. 175 : 44 C. 345, and to the law laid down by the authority cited. I beg most respectfully to subscribe.

15. Further, I am of opinion that Abdul Karim v. Salimun 27 C. 190 : 14 Ind. Dec. 125 and Rajmangal Misir v. Mathura Dubain 30 Ind. Cas. 576 : 38 A. 1 : 13 A. L. T. 881, which decide, that an admission, u/s 70 of the Evidence Act of 1872, to be admissible in evidence can only apply to an admission in fact made in the course of a legal proceeding then pending before a Court of Justice, cannot be supported on principle or authority. If authority were needed to refute such a proposition, I think authority may and can be found in the decision of their Lordships of the Privy Council in Konwar Doorganath Roy v. Ram Chunder Sen 4 I. A. 52 : 2 C. 341 : 3 P. C. J. 681 : 1 Ind. Dec. 508 (P. C.) and also in Hamplen v. Wallis (1881) 27 Ch D 251 : 54 L. J. Ch. 1175 : 51 L. T. 357 : 32 W. R. 977 and also in Gobardhan Das v. Hori Lal 19 Ind. Cas. 121 : 35 A. 364 : 11 A. L. J. 379.

16. In my opinion an admission u/s 70 is admissible in evidence, even though it be an admission not made in the course of legal proceedings then pending before a Court of Justice, but which may be an admission made antecedent to the institution of legal proceedings. This construction of Section 70 of the Evidence Act as to what constitutes an admission to be admissible in evidence is in harmony with the definition of an admission contained in Sections 17 to 20 inclusive of the Evidence Act itself, and is in accordance with the general legal principle.