JUDGMENT

Dunkley, J - The sole question for decision in this second appeal is whether the mortgage bond in suit had been duly executed within the provisions of Section 59, T.P. Act, namely by being signed by the mortgagors and attested by at least two witnesses. The signature by the mortgagors is admitted but the question in dispute is whether the bond had been attested by two witnesses. The original Court held that it had been so attested, but, on first appeal to the District Court, the learned District Judge has reversed this decision. A reference to the bond itself shows that, besides the cross marks of the two mortgagors, which appear at the foot of the document, there appear two signatures on the left hand side: one is that of Po Tauk and the other is that of a person named Somasundaram. Below Po Tauk's signature appears the word "writer" and above Somasundaram's signature appears the word "witness." The question for decision, therefore, is whether Po Tauk was an attesting witness, within the definition of "attested" appearing in Section 3, Transfer of Property Act.

2. Unfortunately this definition is not of much assistance in the decision of the point which is raised in this case, namely, whether a person who has signed his name on a document as the writer thereof can be an attesting witness. In my view "attested" means that a person has signed the document by way of testimony of the fact that he saw it executed. This appears to me to foe the definition of "attested" which was given by their Lordships of the Privy Council in Shamu Patter v. Abdul Kadir (1912) 35 Mad 607 Mr. Ameer Ali, in delivering the judgment of their Lordships, referred to the decision of the House of Lords in Burdett v. Spilsbury (1843) 10 Cl & Fin 340 and referred to the speech of the Lord Chancellor who said :

The party who sees the will executed is in fact a witness to it; if he subscribes as a witness, he is then attesting witness.

3. There is ample authority for the proposition that the writer of a document may, as learned Counsel for the respondents has put it, perform a dual role : he may be an attesting witness as well as the writer: see Jagannath Khan v. Bajrang Das (1921) 8 A.I.R. Cal 208 and Paramasiva Udayan v. Krishna Padayachi (1918) 5 A.I.R. Mad 491 In Abinash Chandra v. Dasarath Malo (1929) 16 A.I.R. Cal 123 a case upon which the learned District Judge relied, this question was fully considered, and it was there decided that because a person had put his signature on the document in some other capacity it did not necessarily follow that he could not also be an attesting witness. The head-note of the case reads as follows:

The mere fact that a person is the scribe or that he puts the word 'scribe' after his name will not, in itself, show that he has not put his signature on the document by way of saying that he had seen the instrument executed. At the same time, it is not right to hold as a matter of law that, even although, on the construction of the document, the name is put alio intuitu, the fact that the name is on the document at all makes the man an attesting witness.

4. Consequently, it appears to me that the correct view is that when a man places his signature upon a document and at the same time describes himself as the writer thereof, the inference is that he signs as the writer and nothing else, but, as a matter of fact, it can be shown that he signed not only as the writer but also as a witness of the fact that he saw the document executed or received a personal acknowledgment from the executants that they had executed it.

5. In this case Po Tauk has given evidence, and he has definitely stated that he wrote this document, that after it had been written it was read over to the executants, that as they were illiterate they held the pen while he put their cross marks on the document and wrote their names opposite their respective cross marks, and that after all this had been done he wrote his name and the description "writer" on the