JAGAT NARAYAN, J. - (1.) THIS is an appeal by Mithalal defendant N0. 3 against an order of remand passed by the District Judge, Pratapghar on appeal against the decision of Munsif, Dungla, dismissing the suit of the plaintiff on the ground that the mortgage-deed on which it was based was attested only by one witness.
(2.) THE facts out of which the present appeal arises are these. Gopilal defendant No. 1 executed a mortgage-deed in respect of his house property in favour of Geharilal plaintiff on 24. 1. 58 and delivered possession over it to the latter on the same day. Geharilal leased the property to Narayan defendant No. 2 on the same day and delivered possession to him. THE case of the plaintiff is that Narayan delivered possession to Gopilal collusively and the latter executed a sale-deed of the same property in favour of Mithalal defendant No. 3 on 29. 1. 58 and put him into possession. THE present suit was filed by Geharilal for obtaining possession over the property. It was contested only by Mithalal defendant No. 3 the first two defendants having admitted the claim in toto. THE mortgage deed was attested only by one attesting wetness before it was registered. Mithalal resisted the suit inter alia on the ground that the mortgage-deed having been attested only by one witness was void. THE trial court, without giving an opportunity to the plaintiff to produce oral evidence, held that the mortgage-deed was void as it was attested only by one witness. It accordingly dismissed the suit. On appeal to the learned District Judge it was contended on behalf of the plaintiff that the question as to whether the mortgage-deed was void on account of want of proper attestation was a mixed question of law and fact. THE learned counsel for the contesting respondent conceded before the learned District Judge that the Registrar's endorsement can amount to attestations of the mortgage-deed provided the conditions laid down for due attestation under section 3 of the Transfer of Property Act were otherwise fulfilled. THE learned District Judge accordingly set aside the order of dismissal and remanded the suit. He referred to a number of rulings for and against the proposition and expressed the opinion that the endorsement by the registrar can constitute due attestation provided it is proved that he signed the document in the presence of executant after toe latter admitted its execution. He remanded the case for decision in accordance with law after giving an opportunity to the plaintiff to produce evidence to show that the endorsement by the Registrar amounted to attestation within the meaning of sec. 3 of the Transfer of Property Act. Against the above order the present appeal has been filed by Mithalal defendant No. 3. It is argued on his behalf that the lawyer appearing for him before the learned District Judge made an erroneous concession on a point of law by which he is not bound. It is contended that the endorsement of the Registrar can in no case amount to due attestation. Reliance is placed on Lachman Singh Vs. Surender Bahadur (1) and Timmavva Dundappa Vs. Channava Appava (2) in which the former decision was followed. On behalf of the plaintiff-respondent reliance was placed on a number of decisions of Madras, Calcutta, Nagpur Patna and Sind High Courts in all of which it was held that the endorsement by the Registrar constituted due attestation provided it is proved that the Registrar affixed his signature to the deed in the presence of the executant after obtaining an acknowledgment of execution from him. I have carefully gone through the decisions which were cited on behalf of the respective parties. With all respect I am unable to subscribe to the view taken in Lachman Singh Vs. Surendra Bahadur (1) and Timmavva Dundrppa Vs. Channava Appaya (2 ). So far as the Allahabad case is concerned one reason given by the learned Judges is that the Registrar may have signed his endorsement at the end of the day's work after the executant had left and there can be no guarantee that he signed it in his presence. It is upto the party who wishes to rely on the deed to prove to the satisfaction of the court that the Registrar signed the document in the presence of the executant before his endorsement can be accepted as amounting to attestation. Another reason is that there can be no guarantee that the identifying witnessess heard the executant admitting the execution of the document. This again is a matter of evidence on which the court can come to a finding. If the court is not satisfied that the identifying witnesses did hear the executant admitting the execution of the document it would not accept their signatures as amounting to due attestation, Another argument given in the judgment is that the Registration Act contemplates that the document is presented for registration after it has been completed and that unless a mortgage-deed is attested by two witnesses before it is presented for registration it cannot be regarded as a completed document. This argument also does not appear to be very weighty since the Registrar cannot refuse the registration of the document on the ground that it has not been completed. Lastly the learned Judges relied on the decision of their Lordships of the Privy Council in Shiam Sunder Singh Vs. Jagannath Singh (3 ). In that case the sons had signed the will executed by their father. It was stated by the testator in the will that he had executed it with the consent of all his sons and had got them to sign it as witnesses with the object that they may not dispute it. Now a legatee by attesting a will forfeits the gift made by the document. The question which arose for decision before their Lordships was whether the sons had forfeited the right to the bequests made in their favour under the will. It was in those circumstances that their Lordships held that the sons did not lose the bequests because they could not be legally regarded as attesting witnesses, not having signed the will with the intention of attesting it. It will thus be seen that the question as to whether the endorsement of a Registrar can amount to due attestation did not come up before their Lordships for consideration in that case and their decision cannot be applied to the facts of the present case by analogy. In the Bombay case, in addition to the reasoning put forward in the Allahabad case the view was expressed that under sec. 70 it is only if a party is shown to have made an admission about the execution of the document in the proceedings where the document is produced that proof of attestation can be dispensed with. In the present case the plaintiff does not rely on the admission before the Registrar as amounting to proof of attestation under sec. 70. He only relys on it as a personal acknowledgment of his signature on the part of the executant. I am accordingly of the opinion that the view of the law taken by the learned District Judge is correct. I accordingly dismiss the appeal with costs. A preliminary objection is taken on behalf of the contesting respondent that no appeal lies against the order of remand in the present case. It is unnecessary to go into this preliminary objection in view of my above finding on the question of law raised in the appeal. . ;