Judgment

MUDHOLKAR, J. :- Two questions are raised before us in this appeal from the judgment of the Orissa High Court. One is whether the mortgage deed upon which the suit of respondent No. 1 was based was validly attested. The other is whether the respondent No. 1 was entitled to institute the suit.

2. The mortgage deed in question was executed by the appellant in favour of Jagannath Debata, respondent No. 2 on April 30, 1945, for a consideration of Rs.15,000. The appellant undertook to repay the amount advanced together with interest within one year from the execution of the deed. The appellant, however, failed to do so. Respondent No. 1, therefore, instituted the suit out of which this appeal arises.

3. According to respondent No.1 though the money was advanced by him to the appellant he obtained the deed in the name of the second respondent Jagannath Debata because he himself and the appellant were close friends and he felt it embarrassing to ask the appellant to pay interest on the money advanced by him. As the consideration for the mortgage feed proceeded from him claimed the right to sue upon the deed. He, however, joined Jagannath Debata as the third defendant to the suit. He also joined Dr. Jyotsna Dei as second defendant because she is the transferee of the mortgaged property - which consists of a house, from the appellant whose wife she is. This lady, however, remained ex parte. The appellant denied the claim on various grounds but we are only concerned with two upon which arguments were addressed to us. Those are the grounds which we have set out at the beginning of the judgment. The third defendant Jagannath Debata disputed the right of respondent No. 1 to institute the suit and claimed that it was he who had advanced the consideration. His claim was, however, rejected by the trial Court and he has remained content with the decree passed by the trial Court in favour of respondent No. 1. The trial Court decreed the suit of respondent No. 1 with costs. Against that decree the appellant alone preferred an appeal before the High Court. The contention raised by the appellant before us were also raised by him before the High Court but were rejected by it.

4. In our opinion there is no substance in either of the contentions urged on behalf of the appellant. It is no doubt true that there were only two attesting witnesses to the mortgage deed, one of whom was respondent No. 1, that is, the lender himself. Section 59 of the Transfer of Property Act, which amongst other things, provides that a mortgage deed shall be attested by at least two witnesses does not in terms debar the lender of money from attesting the deed. The word "attested" has been defined thus in S. 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 seen 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 attention shall be necessary" .

This definition is similar to that contained in the Indian Succession Act. It will be seen that it also does not preclude in terms the lender of money from attesting a mortgage deed under which the money was lent. No other provision of law has been brought to our notice which debars the lender of money from attesting the deed which evidences the transaction whereunder the money was lent. Learned counsel, however, referred us to some decisions of the High Courts in India. These are Peary Mohan Maiti v. Sreenath Chandra, 14 Cal WN 1046; Sarur Jag Begum v. Baroda Kanta,