Sir Edward Maynerd Des Champs Chamier, Kt., C.J.

1. This appeal arises out of a suit brought by the respondent Ajodhya Singh upon a simple mortgage made by an ancestor of the appellants to secure the re-payment of Rs. 100 and interest thereon. The only defence with which we are now concerned is that the document is not proved to have been attested by two witnesses as required by section 59 of the Transfer of Property Act. The execution of the document purports to have been witnessed by five witnesses, who have signed their names as attesting witnesses in the margin in the usual place. In the right hand bottom corner of the document there is the signature of a man named Lalbihari who describes himself as katib tamassuk. It is contended that Lalbihari was an attesting witness, It has been found by both the Courts below that none of the persons who signed their names in the margin as attesting witnesses were present when the executant signed his name on the document except Gangotri Prasad, and unless it can be held that Lalbihari was an attesting witness the suit must be dismissed. The Court of first instance held that Lalbihari was not an attesting witness, but on appeal the District Judge observed that according to the evidence adduced by the plaintiff Lalbihari was present throughout the whole transaction from the drawing up of the bond up to the time when the parties went away. "If so," says the learned Judge, "he was present when the bond was signed. Plaintiff does not say in so many words that Lalbihari actually witnessed the executant's signature, but his witness No. 2 does say so. I believe this evidence and I find that the scribe saw the bond signed." What witness No. 2 said was that he and the persons whose names appear in the margin of the document and Lalbihari were present when the executant signed his name. The learned District Judge appears to hold that as Lalbihari was present when the mortgagor signed the document and afterwards signed his own name on the document, he must be regarded as an attesting witness. As authority for this view he cites the cases of Raj Narain Ghosh v. Abdur Rahim 5 C.W.N. 454 and Dinamoyee Debi v. Bon Behari Kapur 7 C. W. N. 160, and he disagreed with the interpretation that was put upon those rulings by Mr. Justice Griffin and myself in the case of Badri Prasad v. Abdul Karim 19 Ind. Cas. 250 : 35 A 254 : (II) A. L. J. 260. The present case, no doubt, differs from the Allahabad case just mentioned, for in that case the scribe of the document wrote his name on the deed before the deed was signed by the executant. But we were of opinion in that case that an attesting witness within the meaning of section 68 of the Indian Evidence Act, 1872, was a witness who has seen the deed executed and who has signed the deed as a witness. I am of the same opinion now and I rest my decision on the judgment of their Lordships of the Privy Council in the matter of Shamu Patter v. Abdul Kadir Rowthan 16 Ind. Cas. 250 : 39 I. A. 218: 16 C. W. N. 1009 : 35 M. 607 : 23 M. L. J. 321 : 12 M. L. T. 338 : (1912) M. W. N. 935 : 10 A. L. J. 259 : 14 Bom. L. R. 1034 : 16 C. L. J. 596. In that case their Lordships quoted the decision in Burdett v. Spilsbury (1842) 10 Cl. & F. 340 : 59 R. R. 195 : 8 E. R. 772 with approval and in particular approved of the statement of the Lord Chancellor that a party who sees a Will executed is in fact a witness to it and if he subscribes as a witness, he is then an attesting witness. Their Lordships held that the word attested" in section 59 of the Transfer of Property Act, the section with which we are concerned in the present case, was used in that sense. In the Allahabad case we said that although the scribe might have witnessed the execution of the deed in suit he did not sign the deed as a witness. The same remark may be made here, Lalbihari on the finding of the learned District Judge must be held to have seen the execution of the mortgage-deed, but it is evident that he did not sign the deed as a witness. I, therefore, hold that Lalbihari is not an attesting witness within the meaning of section 59 of the Transfer of Property Act. In my judgment the Munsif was right in dismissing the suit. I would allow this appeal, set aside the order of the District Judge remanding the suit for re-trial and dismiss the suit with costs in all three Courts.

Jwala Prasad, J.

2. The only point that arises in this appeal is whether the mortgage-bond in suit was duly attested by at least two witnesses as required by section 59 of the Transfer of Property Act. The bond bears the signatures of a number of persons as attesting witnesses to it and also the signature of Lalbihari Lal described therein as the scribe of the bond. Upon the evidence in the case the learned Munsif held that one only of the witnesses of the bond was present at the time of the execution thereof by the mortgagor. The learned District Judge held that the scribe was present throughout the whole transaction from the drawing up of the bond till the parties went away. From this he infers that the scribe was present when the bond was signed and he says that the plaintiff No. 2 deposed that the scribe actually witnessed the signature of the mortgagor. On looking into the evidence, I find that that witness does not say that the scribe witnessed the execution of the deed. The fact that Lalbihari Lal is described as katib tamassuk does not show that he did witness the execution. It often happens that the scribe of a deed does witness the execution and he may sign the deed because he has done so and yet describe himself as katib. In the present case there is no evidence that Lalbihari Lal did witness the execution of the deed and it cannot be presumed that he did. I agree with the order proposed by the learned Chief Justice.

3. BY THE COURT.-- The order of the Court is that the appeal is allowed, the order of the District Judge set aside and the suit is dismissed with costs.