The main legal point established in the judgment is that while the admission of execution by a party to an attested document may be sufficient proof of execution, the formalities imposed by law, including the calling of an attesting witness, must be strictly observed for the validity of the document.

JUDGMENT

Thomas Richardson, J. - This is a second appeal. The plaintiff who is the appellant before use seeks to recover the amount due under a bond purporting to create a simple mortgage as security for a loan made by the plaintiff to the defendant. The plaint was filed more than six years but less than twelve years after the date fixed for repayment.

2. The, Trial Court, holding that the transaction was fraudulent and collusive and without jurisdiction, dismissed the suit.

3. The learned Subordinate Judge in the lower Appellate Court found on the evidence that there was consideration for the bond and that it was not a fraudulent and collusive document. Re was of opinion, however, that there was no reliable evidence to show that the bond was executed in the presence of two attesting witnesses and he accordingly confirmed the Munsif's decree of dismissal.

4. It appears that at the hearing in the Trial Court before any witnesses were examined, the defendant admitted his own signature on the bond but expressly denied execution in the presence of attesting witnesses. The entry in the order-sheet, under date 2nd December 1918, is as follows:

Parties ready. Defendant admits to have executed the bond but contend? that it was not duly, attested and so it cannot take effect as a mortgage-bond. Plaintiff to adduce evidence.

5. Evidence was adduced by the plaintiff but no attesting witness was examined.

6. The bond in suit is one which, u/s 59 of the Transfer of Property Act, required attestation and on the face of it it was duly signed by the mortgagor-and attested by witnesses. It is settled Jaw, however, that such an instrument is not duly executed and cannot operate as a mortgage or create a charge unless it be in fact signed by the mortgagor in the presence of at least two attesting witnesses; Shamu Patter v. Abdul Kadir Rowthan 16 Ind. Cas. 250 : 35 M. 607 : 39 I.A. 218 : 16 C.L.J. 596 : 16 C.W.N. 1009 : 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 (P.C.) and Ganga Pershad Singh v. Ishri Pershad Singh 45 Ind. Cas. 1 : 27 C.L.J. 548 : 4 P.L.W. 349 : 16 A.L.J. 409 : 34 M.L.J. 545 : 22 C.W.N. 997 : 20 Bom. L.R. 587 : 23 M.L.T. 388 : (1918) M.W.N. 382 : L.W. 176 : 45 C. 45 : I.A. 94 (P.C.).

7. The short point arises, not apparently covered by authority, whether the defendr ant's admission amounts to "an admission of execution by himself" within the meaning of Section 70 of the Evidence Act.

8. u/s 68 of the Evidence Act, "if a document is required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence."

9. By Section 71, "if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."

10. But by Section 70, "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."

11. It is not suggested en the part of the plaintiff that there was no attesting witness available. The contention is that the defendant's admission is sufficient, proof of the mortgage as against him and that the learned Subordinate Judge was wrong in holding that it was necessary to call an attesting witness or otherwise to prove attestation.

12. As to the cases to which reference was made in the argument the dictum in Jogendra Nath Mukhopadhya v. Nifai Churn Bundhopadhya 7 C.W.N. 384 has not been followed.

13. The learned Judges (Banerjee and Geidt, JJ). seem to have been of opinion that an admission within Section 70 of the Evidence Act would not dispense with independent proof of attestation. But the case went off on the finding of fact that the instrument had been duly attested, and in Satish Chandra Mitra v. Jogendra Nath 34 Ind. Cas. 86