The main legal point established in the judgment is the interpretation and application of the provisions of the Transfer of Property Act and the Indian Evidence Act in determining the validity of a mortgage deed.

JUDGMENT

Mookerjee, J. - This is an appeal by the defendant in a suit to enforce a mortgage security. The document was executed on the 27th March, 1911, by the father of the defendant in favour of the father of the plaintiff to secure a loan of Rs. 3,500 which was to carry interest at the rate of 2 per cent, per month. The suit was instituted on the 9th February, 1920, by the son of the mortgagee against the son of the mortgagor. The plaintiff stated that as the original document had been lost, he produced a certified copy from the registration office. The defendant contested the claim on a two-fold ground : namely, first that there was no valid mort-gage bond, executed and attested in conformity with the provisions of Section 59 of the Transfer of Property Act; and secondly, that no consideration had been paid on the basis of the mortgage transaction. The Subordinate Judge has overruled these contentions and has decreed the claim. On the present appeal, that decree has been assailed on each of the two grounds urged in the trial Court.

2. As regards the first objection, the Subordinate Judge held that Section 70 of the Indian Evidence Act rendered it unnecessary for the Plaintiff to prove execution and attestation of the bond, inasmuch as the defendant, in his written statement, admitted execution of the bond by his father. This view cannot be supported. Section 70 provides that 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. The Subordinate Judge interpreted this section to mean that the admission by the representative of a party to an attested document may be treated as sufficient proof of its execution. This view is unsustainable on the plain language of the section. The section speaks of an admission by a party to an attested document of its execution by himself, that is of its execution by the party concerned. An admission by the representative of a party to an attested document of its execution by the party cannot be treated as an [admission of the party to an attested document of its execution by himself. Apart from this, there is an additional difficulty in the way of acceptance of the view taken by the Subordinate Judge. In the present case; no doubt, the defendant admitted that the bond was executed by his father. At the same time, he specifically denied that the bond had been duly attested as required by law. In such circumstances, it is incumbent, upon tile party who relies upon the mortgage instrument, to establish that the document was attested as required by law. The case is covered, not by Nibaran Chandra v. Nagendra Chandra 22 C.W.N. 444 and Hatish Chandra v. Jogendra nath (1916) 44 Cal. 345, but by Arjun Chandra Bhadra Vs. Kailas Chandra Das and Others, AIR 1923 Cal 149 . It is consequently necessary for us to examine whether the document has been proved to have been duly attested.

3. It is not disputed that a mortgage bond is not duly executed and cannot operate as a mortgage unless it is in fact signed by the mortgagor in the presence of at least two witnesses who sign the document as attesting witnesses : Shamu Patter v. Abdul Kader (1912) 35 Mad. 607 and Ganga Pershad v. Ishri Pershad( AIR 1918 P.C. 3(.We must accordingly examine whether this document was in fact signed by the mortgagor in the presence of at least two persons who affixed their signatures as attesting witnesses. The original has been lost, and we have on the record only a certified copy obtained from the registration office. The document shows on the face of it, that it was signed by the executant Rakhal Raj Ray. This is, indeed admitted by the defendant. At the foot of the document we have the signature of the scribe Shoshi Bhusan Ray. Thereafter, follow the names of two persons who are described as witnesses; these names are Haran Chandra Chatterjee and Bhusan Chandra Das. The document was execut