JUDGMENT

1. This appeal arises out of a suit on a mortgage-bond.

2. The first Court gave the plaintiff a money-decree only. On appeal, the District Judge gave him a mortgage decree.

3. The only point that arises in this case is whether the mortgage bond was attested as required by Section 59 of the Transfer of Property Act.

4. According to the plaintiff's case, there were two attesting witnesses, Hawai Bashunia and Kali Nath Sircar. As to Hawai Bashunia, there is no dispute. He was present when the document was executed and signed as an attesting witness. Kali Nath Sircar was the writer of the bond. He signed the bond in two places, but not in the place set apart for the signature of witnesses. It is found by the lower Appellate Court that be wrote his name as a writer and not as an attesting witness, but that he was present at the time of the execution of the deed and actually saw it. Whether this amounted to attestation within the meaning of Section 59 of the Transfer of Property Act, is a point on which different High Courts have held differently.

5. There are decisions of the Allahabad High Court and the Patna High Court in favour of the appellant in Badri Prasad v. Abdul Karim 19 I