BHANDARI, J. - (1.) THIS is a Civil Second Appeal in a suit for sale of mortgaged property brought by the plaintiff appellant against Mst. Gattu and her sons Ghisia and Dhalia. The case of the plaintiff-appellant is that the defendants had a house situated in the town of Pali in Paliwalon-ka-bas. Mst. Gattu borrowed Rs. 1,000 on 12th Jane 1952 and executed a mortgage-deed (Ex. 3) in favour of Ghisulal on behalf of herself and as guardian of her two minor sons. Thereafter, Mst. Gattu further borrowed Rs. 99/- and Rs. 100/- in the year 1952 from the same Ghisulal. Ghisulal brought two suits one for the sale of the mortgage property on the basis of Ex. 3 and the other for the recovery of the loans advanced by him. These were compromised for Rs. 1650/ -. It is alleged by the plaintiff that he purchased the rights of Ghisulal for Rs. 1650/- on 18. 6. 1955 and paid off Ghisulal On 10. 10. 1955 Mst. Gattu further borrowed Rs. 500/- from the plaintiff and executed a promissory note in his favour. The plaintiff filed the suit out of which this appeal has arisen for the recovery of Rs, 2421/- on the basis of Ex. 3, the two loans advanced by Ghisulal and the promissory note. At the time of the filing of the suit, Ghisia and Dhalia were minors and the plaintiff applied that Mst. Gattu be appointed as their guardian-ad-litem. She refused to act as guardian-at-litem, and an advocate of the Court was appointed as guardian-at-litem. All the three defendants denied the case of the plaintiff in its entirety. The trial court decreed the suit to the extent of Rs. 2024/- against the defendants. The trial court did not pass any decree for the sale of the mortgaged property as it held that Ex. 3 was not validly attested and therefore it could was not operate as mortgage-deed. Ghisia and Dhalia preferred an appeal against the decree passed against them, while the plaintiff preferred an appeal against all the defendants and prayed for obtaining a decree for the sale of mortgage property. The appeal of Ghisia and Dhalia respondents was accepted and the decree awarded by the trial court against these defendants was set aside and the plaintiff's suit was dismissed as against them. The plaintiff's appeal was partly accepted but the only amendment made in the decree was that interest was awarded at 3% per annum on the decree of the trial court which was maintained against Mst. Gattu alone. The learned Judge of the lower appellate court held that Ex. 3 was properly attested and operated as mortgage-deed, but it was not proved that the mortgage amount was borrowed for the benefit of the minors. Hence this second appeal on behalf of the plaintiff.
(2.) DURING the pendency of the appeal, respondents Ghisia and Dhalia attained majority and the memorandum of appeal was accordingly amended. Learned counsel for the plaintiff-appellant has urged that the series of transactions which has taken place between Ghisulal and Mst. Gattu who acted on her own behalf and also as guardian of her two sons, were for the benefit of the minors and this was proved by the evidence on record. He has challenged the finding of the lower appellate court on this point. Learned counsel for the defendant-respondents has urged that Ex. 3 was not properly attested and could not operate as mortgage deed. I propose first to examine the question whether Ex. 3 can be said to be validly attested. As already mentioned, Ex. 3 was executed on 12. 6. 1952. Before that date, the provisions of the Transfer, of Property Act (Act No. 4 of 1952) were made applicable to the State of Rajasthan. Section 59 of the Transfer of Property Act provides that a mortgage can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses in case the principal money security is one hundred rupees or upwards. In this case, the principal amount secured is Rs. 1,000/- and thus in order that Ex. 3 may operate as a mortgage deed, it must have been attested by at least two witnesses. Ex. 3 is in the handwriting of Jethmal (PW, 9), and the document shows that it was first signed by two witnesses, namely, Mansharam and Mohanlal, and below their signatures, there is the thumb impression of Mst. Gattu. Beside the thumb impression, Ram Niwas (PW. 2) has written that the thumb impression was of Mst. Gattu Malan. Ram Niwas has further mentioned that he signed at the instance of Mst. Gattu Malan who had put the thumb impression in his presence. No date is given on which Mst. Gattu put her thumb impression. This document was presented for registration by Mst. Gattu on 25. 9. 1952 in the office of the Sub-Registrar, Pali. The Registrar made a note to this effect on the document and he had noted that Mst. Gattu was got identified by Bhursingh Chaprassi and that she admitted the contents of the document and also admitted the receipt of the consideration mentioned in the document. Then he ordered that the document be registered. At the end of this order, there is the thumb mark of Mst. Guttu and signature of the Sub Registrar with the seal. On these facts, it is to be examined whether the document (Ex. 3) has been attested in accordance with the provisions of Section 59 of the Transfer of Property Act. Mansharam and Mohanlal have signed the document as attesting witnesses even before Mst. Gattu had put her thumb mark on it, i. e. before she had signed it and they cannot therefore be deemed to be attesting witnesses. Section 3 defines 'attested' as hereunder : - "attested", in relation to an instrument, means and must be deemed always to have meant, attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant ; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;" Though this definition expressly does not say that the attesting witnesses should sign the document after the executant has signed or affixed his mark to the instrument, yet it is implicit in the definition that the executant should have signed or affixed his mark first and then the attesting witnesses should have attested it. This flows from the words "each of whom has seen the executant sign or affix his mark to the instrument or seen some other person sign the instrument in the presence of and by the direction of the executant. " It is contemned by the learned counsel for plaintiff-appellant that at one time in the former Jodhpur State it was the practice that attesting witnesses signed first and then the executant signed and this was considered necessary so that the person in whose possession the document is may not get it falsely attested by putting the signatures of certain other witnesses after the signature or thumb impression of the executant. This practice places the cart before the horse. One of the reasons why a document required to be attested is that it would furnish proof that the executant had signed the document but this practice makes it possible to get a document attested without there being signing of the document by the executant i. e. without there being a complete execution of the document. If this practice is adopted, the executant may sign even after a long time of the attestation. As in the instant case, Mansharam and Mohanlal might have signed as attesting witnesses on a date which may be long after the date when Mst. Gattu put her thumb impression. In view of the definition of the word 'attested', this practice cannot be supported after the coming into force of the Transfer of Property Act. Thus, the document cannot be said to have been attested by Mansharam and Mohanlal. In view of the language of the endorsement made by Ram Niwas and his statement that he had put his signatures on the document at the instance of Mst. Gattu, I am of the view that Ram Niwas may be taken to be one of the attesting witnesses. Where then is the other attesting witness to be found? Learned counsel for the plaintiff-appellant has argued that the Sub-Registrar, Pali may be taken to be the other witness. There is a good deal of controversy among the various High Courts in India as to whether a Registrar can be treated as an attesting witness. This controversy has been noted by this Court in Mithalal vs. Geharilal & C. (1 ). I need not enter into this controversy. One of the requirements for holding a document validly attested is that the attesting witness should have signed the instrument in the presence of the executant. Unless there is evidence on record that the Sub-Registrar, Pali put his signature on Ex. 3 in the presence of Mst. Gattu, he cannot be said to be an attesting witness. In this connection, I may refer to the following decision of their Lordships of the Privy Council in Kunwar Surendra Singh Bahadur Singh vs. Thakur Behari Singh (2) - "it is provided by Sec. 59, Registration Act, that he must affix his signature "on the same day" and in the absence of any evidence as to the time when he signed, it cannot be assumed that he signed the endorsement in the presence of Mst. Jamna Kunwar. " In that case there was no evidence that the Sub-Registrar affixed his signature to the endorsement of registration in the presence of the executant and in the absence of any evidence as to the time when he signed, it could not be assumed that he signed the endorsement in; the presence of the executant. For the purpose of this case, this authority concludes the matter in controversy and the Sub-Registrar cannot be said to be the attesting witness. I, therefore, arrived at the result that the document (Ex. 3) cannot be held to be properly attested so as to operate as a mortgage deed. It is then contended that the document may be taken to be a registered bond and as the suit had been filed within six years of the date of its execution, the court may award a decree against the defendant as the document was executed by Mst. Guttu on her own behalf as well as on behalf of her minor sons and the Joan was taken for the preservation of the estate of the minors. A guardian of a Hindu minor has no power to bind the minor or his estate by an unconditional undertaking in the name of the minor unless the same is contracted for the legal necessity or benefit of the minor. This is the law laid down by their Lordships of the Federal Court in Kondamudi Sriramulu vs. Myneni Pundarikakashyya &c. (3) [see Mulla's Hindu Law, 13th Ed. p. 218]. Thus, no liability can be cast on the minors or their estate even if the document (Ex. 3) is considerd as a bond. The same argument applies to the other loans including the loan taken on the basis of the promissory note. In the view of the learned Judge of the lower appellate court, court the plaintiff appellant has failed to prove that Mst. Gattu had borrowed money for the benefit of the minors. This is a finding of fact which cannot be challenged in the second appeal. Thus, no liability can be cast on the minors or their estate the basis of Ex. 3. Next it is to be examined whether any liability can be cast on the minors or on their estate on the basis of the promissory note (Ex. 10) executed by Mst. Gattu. Mst. Gattu has not executed this document in her capacity as guardian of her minor sons. In the plaint there is no allegation for holding the minors liable for the amount borrowed by Mst. Gattu by that promissory note. Thus, no liability can be cast on the two defendants Ghisia and Dhalia on the promissory note. As a result, there is no force in the appeal and the appeal is, therefore, dismissed. No order as to costs. Learned counsel for the appellant prays for leave to appeal to a Division Bench. Leave to appeal is refused. . ;