Facts :-

The respondents in this appeal were the two wives of a certain Maharajah Kumar Jagat Mohan Nath Sah Deo of Chota Nagpur. They executed a mortgage in favour of the appellants Sarkar Barnard and Co. on the 6th April, 1908.

The deed contained the following recital :-

"The deed is executed by us with consent and permission of our husband so that he may not in future raise objection to realization of debt by sale of mortgaged property (villages). Our hus band signed as witness in the bond in evidence of the above facts."

The signatures in the deed were as follows.

"Signature.........Srimati Alangamanjari Kueri Barkuerain Sahib. By my own pen.

"Signature.........Srimati Mohan Manjari Kueri Chotkuerain. By my own pen."

''Signature.........Maharaj Kumar Jagat Mohan Nath Sah Deo of Chota Nagpur."

Witnessed by.........Sabral or Saphal.

The appellants, the mortgagees institu ted a suit against the respondent to enforce the mortgage-bond. The suit was contest ed by the respondents on two grounds. First on the ground that the mortgage-bond not having been attested according to law was not enforceable against them, and secondly, on the ground that the mortgage was not intended to be acted upon and that the plaintiff company by an agree ment entered into by and between them and the Maharaja the husband of the defendants, in consideration of a license granted by the Maharaja Kumar to the plaintiff, exonerated the defendants from all the liabilities under the deed of the mortgage. The Subordinate Judge rejected the contentions advanced on behalf of the defendants and gave the plaintiffs a decree for the full amount claimed.

When the case went in appeal to the High Court the Subordinate Judge's judg ment was set aside on the ground that the mortgage bond was invalid for want of proper attestation, though the High Court expressed its agreement with the Subordinate Judge in regard to the other conten tion raised by the defendants.

We give below important passages in the High Court's judgment relating to the question of attestation.

"It will appear then that two conditions must be satisfied before the validity of the document is established as against the mortgagor first, there must be at least two persons who see the document actually executed and secondly, these must sub scribe as witnesses. As Abdur Rahim, J., said in Muniappa Chettiar v. Vellachami Mannady, 'Attestation does not consist merely in execution of a document. It requires a further act, that is, subscribing the name of witness on the document as having seen the execution.' .....

It seems to me that if as has been suggest ed, the rules stated by the Lord Chancellor in Burdett v. Spilsbury and recognised in section 59 of the Transfer of Property Act was deliberately adopted to serve as a bar rier against perjury and fraud (see Ellis v. Smith, it must be established that the persons alleged to be attesting witnesses not only saw the execution of the document but also subscribed their names on the document as having seen the execution. Any other view would open the door to fraud and perjury and enable a party to produce witnesses to speak to the factum of the execution in their presence when their names do not appear in the docu ment as attesting witnesses. This is at the bottom of the rule enunciated in Ram Bahadur Singh v. Ajodhya Singh that a person whose name appears on the deed merely as a scribe is not such a witness as is required by section 59 of the Transfer of Property Act, although he may have actually seen the deed executed".

With reference to the facts of the pre sent case the judgment observed :- "Prima facie the document was attested by only one witness, Sabral or Saphal, but it was urged on behalf of the respondent that as the Maharaj Kumar was not one of the executants he must have signed the docu ment as the attesting witness. The answer of the defendant to this argument is that he does not purport to sign the document as the attesting witness as Sabral or Saphal does, and