JUDGMENT

Dalal, J C - The plaintiff's suit for sale on foot of what purported to be a mortgage deed was dismissed by the Subordinate Judge of Rae Bareli and so was the first appeal to the District Judge. He has come here in second appeal.

2. The deed has been held to be genuine and the consideration thereof established. What the lower Court decided was: (1) that there was no due attestation (a) because one of the so-called attesting witnesses was Bisheshar Lal who had signed on behalf of the lady; and (b) because the scribe who had seen the document signed on behalf of the executant in his presence could not be considered an attesting witness; and (2) that the suit for a money decree was barred by limitation.

3. These findings are correct. It has been held by a Bench of the Calcutta High Court in Srishtidhar Ghose v. Raksha Kali A.I.R. 1922 Cal. 168 that where the writer of a mortgage bond wrote out the name of the executant who was illiterate and then signed his own name by way of attestation the deed was not properly attested as required by Section 59 of the Transfer of Property Act. A former ruling of the Calcutta High Court is quoted in support. In the present case there is no mark or thumb impression of the lady executant Mt. Mainath Kuar and Bisheshar Lal had signed her name on her behalf presumably with her authority. Under such circumstances Bisheshar Lal cannot be an attesting witness to his own act. The execution was the act of Bisheshar Lal and no way the act of the lady. The matter would have been different if the lady either put her mark or her thumb-impression because then it could have been argued that Bisheshar Lal was an attesting witness to the mark or the impression.

4. The other point also as regards the scribe being put forward as an attesting witness is well settled by authority. In the present case Anwar Uddin was the scribe and did not sign again after the deed was executed on behalf of the lady. The Chief Justice of the Patna High Court has discussed the law on the subject in Ram Bahadur Singh v. Ajudhia Singh (1916) 1P.L.J. 129. The observations of Jwala Prasad, J., who wrote a separate judgment are pertinent. A scribe may also assume the position of an attesting witness if he signs the document after seeing the document duly executed. The learned Judge observed at page 132 of the report: On looking into the evidence I find that witness does not say that the scribe witnessed the execution of the deed. The fact that Lal Behari is described as Katib tamassukh does not show that he did not witness the execution. It often happens that the scribe of a deed does witness the execution and he may sign the deed because he has done so and yet describe himself as katib. In the present case there is no evidence that Lal Behari Lal did witness the execution of the deed and it cannot be presumed that he did.

5. There is the same difficulty in the present case. Anwar Uddin was examined as a witness and does not say that he signed the document after witnessing the execution and did not sign again as an attesting witness. Under the circumstance he cannot be considered an attesting witness.

6. On behalf of the appellant a Bench case of the Calcutta High Court Jagannath v. Bajrang Das A.I.R. 1921 Cal. 208 was quoted. It does not appear from the report, however, that the scribe had not signed as an attesting witness as well. It appears that the scribe had signed in two places and the learned Judges possibly took the view that, when he signed the second time he had done so in attestation of the execution of the deed. Such an inference cannot be drawn in the present case.

7. It is not enough that a witness should see the actual execution, but as an attesting witness he must further sign the document as a witness. If this were not insisted upon, it would be easy enough for parties to fabricate evidence subsequently and bring witnesses to swear that though they did not sign the document they were present when it was executed