JUDGMENT

Mukerji and Bennet, JJ. - This is an appeal by two of the several Defendants in the suit and arises out of a suit for sale instituted by the Respondents 1 and 2 for recovery of a large sum of money. The mortgagors were the Defendants' father Yudhishthir and grandfather Mohan Lal, and it was executed for a sum of Rs. 30,000. The Plaintiffs are transferees of the interests of the original mortgagees. The suit was defended by the Appellants, who were minors at the date of the mortgage, and on whose behalf their father and grandfather professed to execute the document in suit. The Appellants did not admit the allegations made in paragraphs 1 and 2 of the plaint, names, the statement that the Plaintiffs were the mortgagees and the mortgage was executed as is stated above. In their further pleas the Appellants did not state that the mortgage was legal not having been executed in the manner required by law. The Plaintiffs in order to prove the document called one of the marginal witnesses Bohra Bhopal. The witness stated as follows:

Mohan Lal and Yudishthir for themselves and for Gopi Chand and Brij Ballabh, minors, executed the mortgage deed in suit for Rs. 30 000. I am its marginal witness. The executants put their signatures on the bond in my presence and in the presence of other marginal witnesses (The witness having seen the bond in suit identified his signatures and the signatures of the other marginal witnesses).

2. It is contended before us that the learned Judge of the Court below was not correct in accepting this statement as a proper compliance with the law.

3. As we read their judgment of the Court below it appears to us that this question of the bond being not proved in the way required by law was not even argued before the Court below, for all that we have in the judgment of the learned Subordinate Judge on this point is the following at Page 21:

Bhopal, a marginal witness of the bond in suit, proves its due execution. For the said reasons I hold the due execution of the bond in suit for consideration and for valid and legal necessity.

4. In this Court, however, we are being asked to hold that the statement of Bohra Bhopal was wanting in law inasmuch as he did not say that he signed the bond in the presence of the executants. We note that Bohra Bhopal was not even cross-examined as to what he meant when he said that he was a marginal witness to the bond. In our opinion when the witness said that he was a marginal witness to the bond and he pointed out his own signature on the margin of the document, he clearly meant that the bond was signed by him as a witness in the presence of the executants. There were no less than four witnesses to the mortgage bond, and if by any cross-examination of the point the Appellants had indicated that they did not accept the statement namely, "I am its marginal witness" as equivalent to saying that the witness attested the document in the presence of the executants, it would have been open to the Plaintiffs to call other marginal witnesses to prove the fact. The point raised was never raised in this form in the Court below, and we are of opinion that the statement of Bhopal that he was a marginal witness to the bond sufficiently complied with the rule of the law. We may add that if we look to the language of Section 68 of the Indian Evidence Act all that is necessary under the law is to call a marginal witness to prove the execution of the document. Section 68 does not imply that the man must say that he is an attesting witness and also explain what an attesting witness means. The Full Bench case of Lachhman Singh v. Surendra Bahadur Singh (1932) AIR 1982 All. 527 : 139 Ind. Cas. 1 : 1932 A.L.J. 653 : (F.B.), is in point. We hold, in the circumstances, that the bond was duly proved.

5. The next point is of legal necessity. Mr. Baleshwari Prasad has rightly conceded that the bond having been executed in lieu of a prior bond for Rs. 15,000 and its interest dated 6th August, 1901, he cannot