JUDGMENT 1. In this appeal, which arises out of a suit to enforce a mortgage-bond, the only question for determination is whether due execution of the bond has been proved. The learned vakil for the Defendant-Appellant contends that the question ought to be answered in the negative, because the requirements of sec. 59 of the Transfer of Property Act have not been shown to have been complied with. 2. Another question was also raised, but was not pressed, namely, whether, having regard to the provisions of sec. 68 of the Indian Evidence Act, the mortgage-bond in question could be used as evidence, when no attesting witness had been called for the purpose of proving its execution. We may shortly dispose of this point with the remark that Parbati Churn Mukerjee, who was examined as a witness, and who says that he saw Jagat Tarini Debi, the executant of the bond, put her finger mark upon it and that he wrote her name at her request, may be properly regarded as an attesting witness, the words "by the pen of," preceding his name, written by himself, being treated as a mere matter of surplusage, as the document was executed by the lady herself and not by Parbati Charn Mukerji on her behalf. In support of this view we may refer to the decision of this Court in a somewhat similar case, namely, the case of Raj Narain Ghosh v. Abdur Rahim 5 C. W. N. 454 (1901). 3. Coming now to the real point in the case, we find that by sec. 59 of the Transfer of Property Act, which is applicable to this case, it is required that where the principal money secured is not less than one hundred rupees, a mortgage can be effected by a registered instrument signed by the mortgagor and attested, by at least two witnesses. 59 of the Transfer of Property Act, which is applicable to this case, it is required that where the principal money secured is not less than one hundred rupees, a mortgage can be effected by a registered instrument signed by the mortgagor and attested, by at least two witnesses. Now all that is proved is that the mortgage-deed in this case was attested by the witness Parbati Churn Mukerjee: another witness, Nilkomal Sircar, whose name appears as that of an attesting witness on the document, and who has been examined in the case, having deposed to the effect that he did not witness the execution of the document by Jagat Tarini Debi, and no other witness having said that the execution of the document by Jagat Tarini was witnessed by any of the witnesses whose names appear on the document save and except Parbati Churn Mukerjee referred to above. In this state of things it would be difficult to hold that it has been shown that the instrument in question was attested by two witnesses. Attestation, as has been pointed out in the case of Ford v. Kettle 9 L. R. Q. B. D. 139 (1882) means that what is said to be attested happened in the presence of the attesting witnesses. But though attestation by two witnesses of the instrument in question has not been proved, we do not think that it would be right to dismiss the suit now. The objection was not raised until a late stage of the case in the first Court ; and we think that the Plaintiff ought to have an opportunity of adducing evidence to show that at least two witnesses (including Parbati Charn Mukerjee) whose names appear on the face of the document were attesting witnesses to it. 4. The decree of the lower Appellate Court must therefore be set aside and the case sent back to that Court in order that it may be dealt with in accordance with the above directions, after allowing both parties an opportunity of adducing evidence. The costs will abide the result.