Proper execution and attestation of a mortgage deed require the executant to sign the document in the presence of the attesting witnesses or acknowledge the signature before them, and the attesting witnesses to sign the document in the presence of the executant.

MOHAPATRA, J.

( 1 ) THE plaintiff has filed this First Appeal against the judgment and decree dated 31st August 1956 of Sri B. K. Das, Subordinate Judge of Mayurbhanj, arising out of a suit for enforcing an anomalous mortgage bond executed on the 4th May, 1948, by the present defendant No. 1 (Bhabatosh Das) and one Maheswari Debi, since deceased, who was the mother of defendants 1, 2 and 3. The agreement in the bond was to the effect that defendant No. 11 would be entitled to draw amounts from the plaintiff-bank to the extent of Rs. 10,000/ -. The plaintiff after making adjustment had laid the claim at Rs. 12,477/11/9. Defendants 2 and 3, who were not parties to the transaction, have been made parties in the suit as heirs of Maheswari. It is to be noted, the Properties mortgaged stood in the name of Maheswari, the mother. Defendants 4 to 7 are the sons of defendant No. 1 and defendant No. 8 is the son of defendant No. 2, Defendants 1, 4, 5, 6 and 7 supported the case of the plaintiff. The suit was contested by defendants 2, 3 and 8. The main contest was on the basis that the suit transaction was not duly and properly executed, that there was no proper attestation within the meaning of the definition under the Transfer of Property Act and that there was no legal necessity for the transaction.

( 2 ) THE trial Court found that due, proper and valid execution of the document has not been proved, proper attestation also has not been proved and further there was no legal necessity to support the transaction. But on the admission of the defendants 1 and 4 to 7 a money decree was passed against them. The suit was dismissed as against the other defendants. Against this judgment and decree of the trial Court the plaintiff has come up in appeal.

( 3 ) WE will now take up the question how far there has been proper execution of the document in suit (Ex. 1/c ). One of the executants was Maheswari Debi. The learned Court below has found that it is admitted that Maheswari was a purdanashin lady. In fact the transaction was registered by the Sub-Registrar who had been to the house of Maheswari on commission and obtained the acknowledgement of due execution of the transaction. Moreover there is other evidence to the effect that she happened to he a Purdanashin lady. That apart, it appears, the suit document is in English. Maheswari also had signed her name in English but on a scrutiny of her signature we feel convinced to observe that she did not know anything else of English excepting how to sign her name. There is also other evidence in support of the position that she did not know English. The document does not appear to be a very plain document which can be understood just on a perusal of it. The terms appear to be difficult. In such circumstances we are definitely of the view that in order that the Plaintiff can enforce such a document, it is incumbent upon the plaintiff to prove not only that Maheswari had put her signature on the transaction but that the document was fully read over and explained to her and that she became a willing partner to the document after understanding the nature and the character of the document. It is significant to note in this connection that there is not an iota of evidence on record to show that the document was read over and explained to the lady executant. Note of the attesting witnesses has been examined on this position nor even defendant No. 1 who fully supports the case of the plaintiff made even a bare statement to the effect that the document was read over and explained to the lady executant. On the contrary, it is the definite statement of the defendant No. 1 himself that there was no necessity for reading out or explaining the document. In such circumstances we are in complete agreement with the view taken by the learned Court below that proper and due execution of the document has not been proved.

( 4 ) THE next question is whether the document which is sought to be enforced as a mortgage tran