JUDGMENT Maclean, C.J. - The question whether this is a mortgage within the meaning of sec. 58 of the Transfer of Property Act, or a mere charge within the meaning of sec. 100 depends upon the construction of the document and I am hound to say that, if the matter had come before me as res integra, I should have felt considerable difficulty in saying that it was a mortgage, because I cannot find in this document anything to show that there was any actual transfer of any interest which seems to me to be the initial element in the creation of a mortgage within the definition of sub-sec. (a) of sec. 58. But I am told, both by the Bar and by my learned colleague who has had the widest experience in these matters, that it has been universal judicial practice, going back over many years, to treat documents in this form as simple mortgage within the meaning of sec. 58 and not as a charge under sec. 100, and, therefore, though somewhat grudgingly, I feel constrained to treat this document as a simple mortgage and not as creating a mere charge. This view gains support from the fact that in his plaint the Plaintiff treats the document as a mortgage, and not as a mere charge The appeal must consequently fail, and be dismissed with costs. Mitra, J. I am of opinion that the document propounded in this case is a simple mortgage as defined in see. 58 of the Transfer of Property Act, and not being attested by two witnesses, as required by sec. 59, cannot have operation as a mortgage. The expression "simple mortgage" is well understood in this country and the definition in the Act has been taken from an authoritative text-book, Macpherson on the Law of Mortgage (see the Edition of 1856, p. 12). The document is styled a Mortgage. 2. In Tofaluddi Peada v. Mahar Ali Shaha I. L. R. 26 Cal. 78 (1898), the document dealt with was one of the same nature as we have here. In Girindra Nath Mukerjee v. Bejoy Gopal Mukerjee I. L. R. 26 Cal. 246 (1898) the document was a security-bond filed in the Privy Council Department of this Court for the Respondent's costs. There was no conveyance of the hypothecated property. The document in Abdul Karim v. Salimun ILR 27 Cal. In Girindra Nath Mukerjee v. Bejoy Gopal Mukerjee I. L. R. 26 Cal. 246 (1898) the document was a security-bond filed in the Privy Council Department of this Court for the Respondent's costs. There was no conveyance of the hypothecated property. The document in Abdul Karim v. Salimun ILR 27 Cal. 190 (1899) was also of the description as here as also the document in Rani Kumari Bibi v. Srinath Roy 1 C.W.N. 81 (1896). Following the rule laid down in these cases I concur in dismissing this appeal.