(1.) The main question raised in this appeal is whether the provisions of Section 59 of the Transfer of Property Act which requires a mortgage to be effected by a registered instrument signed by the mortgagor and attested by at least two witnesses are sufficiently complied with when the witnesses are not present at the execution of the instrument by the mortgagor, but attest it subsequently on his acknowledgment of his signature-This question has been answered in the negative by the Calcutta Court in Girindra Nath Mukerjee V/s. Bejoy Gopal Mukerjee (1898) I.L.R. 26 C. 246 and Abdul Karim V/s. Salimun (1899) I.L.R. 27 C. 190 and in the affirmative by the Bombay and Allahabad High Courts in Ramji V/s. Bai Parvati (1902) I.L.R. 27 B. 91 and Ganga Dei V/s. Shiam Sunder (1903) I.L.R. 26 A. 69.
(2.) As to what is meant by attesting an instrument the appellant has relied on numerous old cases under Section 5 of the Statute of Frauds of which Stonehouse V/s. Evelyn (1734) 24 E.R. 1380 3. P Wms 251, Grayson V/s. Atkinson (1752) 28 E.R. 291 2. Ves. Sen. 454 Ellis V/s. Smith (1754) 3 O.E.R. 205 I Ves. June. 11 and White V/s. Trustees of the British Museum (1829) 6 Bing. N.C. 310 were cited before us. In these cases, it was held that under the provisions which required a will of lands to be "attested and subscribed in the presence of the devisor by three or more credible witnesses" it was unnecessary for the testator actually to sign his will in the presence of the witnesses and that it was sufficient if he acknowledged it to be his will. This contention, however, was disapproved by many of the Judges who felt bound to follow it on the principle of stare decisis, and the objections to it have nowhere been more forcibly expressed than by Lord Brougham in delivering the judgment of the Privy Council in Casements V/s. Fulton (1845) 3 M.I.A. 395 a case under the Indian Wills Act No. XXV of 1838. "The Statute of Frauds (29 Car. II., C. 3, Section 5), requires the will to be signed by the testator, in the presence of the witnesses; nevertheless, the construction put upon that important provision has been that an acknowledgment is equivalent to a signature. How far this latitude of interpretation was justified in principle, we need not now stop to inquire, else it might well be suggested that to do an act in the presence of a witness, and to acknowledge having done it when the witness was not present, are two entirely different things - as different as the witnessing a fact or act, and the witnessing a confession of that fact or act But it is too late to raise any such objection; we may, nevertheless, observe that the greatest Judges who have dealt with the subject have admitted the force of such considerations, and lamented the latitude given to the statutory provision by their predecessors, who first broke in upon its strictness. When Lord Hardwicke, in 1752, was first called upon to adopt this construction he expressed that it had for a long while been vexata quaestio; but still he felt the weight of authority too great to adopt the course he manifestly inclined to - Grayson v. Atkinson (1752) 2. Ves Sen. 454 28 E.R. 291. Two years after, the point was more solemnly considered in Ellis V/s. Smith (1752) 1 Ves. June. 11. 30 E.R. 205 and adjudged by the same great lawyer, who then had the assistance of Sir J. Strange, M.R., Willes, C.J., and Parker, C.B. All these eminent men expressed their opinion, that, had the question been open, and if they were called upon now to decide it for the first time, they should not have held acknowledgments sufficient. But they found on examining the cases that the case was not res integra."
(3.) In the English Wills Act 1 Viet. C. 36, followed in the Indian Wills Act No. XXV of 1838 and the Indian Succession Act of 1865, Section 50, the Legislature, when intending that acknowledgment of the signature should be sufficient in the case of. wills, did not think fit to leave this upon the construction placed upon the word attest in the connection in which it occurs in Section 5 of the Statute of Frauds, but expressly enacted that the signature must be "made or acknowledged" by the testator in the presence of two or more witnesses, thus reproducing what had for a very long time been understood to be sufficient in the case of wills of land, but no longer leaving it to rest on a questionable construction of the Statute of Frauds.