JUDGMENT : Lyle, J. This is a suit for possession of a house. The plaintiff bases his claim on an alleged deed of gift said to have been executed oh the 19th of March, 1907, by one Musammat Gutti in his favour. Both the lower courts found the deed to be duly proved and decreed the suit. The defendant appealed. Only one point is raised and that is that the deed of gift relied on by the plaintiff was invalid in law as it was not duly attested within the meaning of that term as recently interpreted by the Privy Council. The decision referred to is that in Shamu Patter v. Abdul Kadir Ravutkan, [1912] I.L.R., 35 Mad., 607 in which it is laid down that the attestation of a mortgage-deed within the meaning of section 59 of the Transfer of Property Act, must be made by the witnesses signing their names after seeing the actual execution of the deed. Mere acknowledgment of his signature by the executant is not sufficient. Now, although this ruling had not been published when the case was before the lower appellate court, it remanded the case for the determination of the question whether the Musaramat signed the document and whether she signed in the presence of two attesting witnesses or acknowledged to have so executed, i.e., signed the bond. In the finding of the lower court, we find the following passage:— “The first two witnesses have attested the deed, while the third, Ganga Ram, identified the executant Musammat Gutti before the Sub-Registrar…. These two witnesses admit that when the deed was brought by Gutti to their shops for attestation, each of them was careful enough to have it read and then, on Gutti acknowledging that she had executed the deed and put her mark on it, the witnesses attested it.” It will thus be seen that although the two lower courts could hardly have anticipated the ruling quoted above, a very distinct finding was arrived at to the effect that the so-called attesting witnesses did not see Musammat Gutti actually executing the document but merely heard her acknowledge having executed it. It is, therefore, clear that the deed of gift in question was never attested according to the interpretation put on the word by the recent decision of the Privy Council. It is, therefore, clear that the deed of gift in question was never attested according to the interpretation put on the word by the recent decision of the Privy Council. On behalf of the respondents, it is urged in the first place that the Privy Council decision dealt with section 59 of the Transfer of Property Act and that that section is concerned with mortgages and not with deeds of gift. The section which deals with gift is section 123 and as regards the attestation, the words are exactly the same as those used in section 59. The Privy Council having placed a certain interpretation on the words “attested by witnesses,” I cannot accept the argument that this interpretation only applies to the particular section with which their Lordships were dealing at the time. In the second place, it is urged that this plea was not taken in the court of first instance and that it should not be considered now. Reliance is placed on two unreported decisions of this Court. (F.A. No. 184 of 1911, decided on the 24th April, 1913, and F.A. No. 127 of 1911, decided on the 27th of May, 1913.) I find, however, that in both those cases the plea had not been raised in the memorandum of appeal and that the learned Judges, therefore, declined to entertain it at all. In this case, the plea was distinctly raised in the memorandum of appeal, and I do not see how I can possibly refuse to entertain it even at this stage. I, therefore, decree the appeal and dismiss the suit with costs.