JUDGMENT : 1. This is a suit on a mortgage dated 7th November 1907, for a sum of Rs. 99, which is said to have been advanced for the payment of a decree in execution of which the property was put up to sale. The defendants denied the mortgage and the plaintiff had, therefore, to prove it. The Court below dismissed the suit on the ground that the execution of the mortgage had not been proved in accordance with the requirements of Sections 63 and 69 of the Evidence Act. 2. The document is one which under Section 58 of the Transfer of Property Act is required to be attested by not less than two witnesses. It purports to bear the signature of one Kishori Lal as an attesting witness and the mark of one Kamla, the other attesting witness. Kishori Lal is no longer living, but Kamla was called to prove the bond. The plaintiff himself also went into the witness-box to prove its due execution and the payment of consideration. Kamla is illiterate and he could only make his mark. He has stated that Mt. Prano, the mortgagor, executed the mortgage before him, that she put her mark on the document, that he witnessed the said document and put on his mark thereto. 3. The document was not placed in his hands and no question was put to him to ascertain whether the mark which appears under the name of Kamla was made by him or at his instance, nor was the mark put on by Mt. Prano similarly shown to have been made by her or at her instance. But the witness did state that the document was marked by Prano in his presence and that his own mark too was put on the document then and there. Chiranji Lal proved the document and also the passing of consideration. The Munsif held that the document was not legally proved. 4. Under Section 68 of the Evidence Act, if a document is required by law to be attested it cannot be used in evidence until at least one attesting witness has been called for the purpose of proving its execution. All that the section requires is that the witness should be called for the purpose of proving the execution. 4. Under Section 68 of the Evidence Act, if a document is required by law to be attested it cannot be used in evidence until at least one attesting witness has been called for the purpose of proving its execution. All that the section requires is that the witness should be called for the purpose of proving the execution. The witness may or may not be able to prove the document, he may have forgotten all the incidents relating to the execution or he may dishonestly deny the execution of the document, but the only obligation that S. 68 imposes upon the plaintiff is of calling one attesting witness at least, whatever that man may depose to. In calling Kamla, therefore, the plaintiff complied with the condition imposed by S. 68. Kamla, however, only made a mark and it may be suggested that he was not an attesting witness who could prove his signature. In the case of Pran Krishna Tewary v. Jadu Nath Trivedy (1) the question arose whether a marksman is an attesting witness within the meaning of S. 69. At p. 605 of the report their Lordships ruled as follows: We are of opinion that this contention is not correct, and that there is no good reason for holding that a marksman cannot be an attesting witness within the meaning of Section 59 of the Transfer of Property Act, and Section 68 of the Evidence Act. According to the general policy of our law, a signature includes a mark—[see the General Clauses Acts of 1887 and 1897 (Act 1 of 1887, S. 3, Cl. 12, Act 10 of 1897, S. 3, Cl. 52,) Act 14 of 1882, S. 2, and Act 3 of 1877, S. 3] and there is no reason why the case of a mortgage deed should form an exception. I think the law is correctly laid down in that case and Kamla was an attesting witness within the meaning of that term as used in Section 68 of the Evidence Act. The document also bears the name of another attesting witness named Kishori Lal. The Court of first instance observes that it has not been proved that Kishori Lal's signature was made by him in his own handwriting. It was not necessary to prove the signature of each of the attesting witnesses. The document also bears the name of another attesting witness named Kishori Lal. The Court of first instance observes that it has not been proved that Kishori Lal's signature was made by him in his own handwriting. It was not necessary to prove the signature of each of the attesting witnesses. The document on the face of it has two attesting witnesses and under Section 69 of the Evidence Act, it was not necessary to prove the signature of one attesting witness at least to have been in his handwriting, as that condition is required only when no attesting witness can be found or when the document purports to have been executed in the United Kingdom. The conditions of Ss. 68 and 69 were therefore fully complied with. 5. The only point on which the evidence is defective lies in the fact that the document was not actually put to the witness and the signature neither of the executant nor of the attesting witness actually proved by reference to the document itself. Under Section 67 of the Evidence Act, when a document is alleged to be signed by a particular person or to have been in his handwriting, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. This can only be done by showing the document to the witness and questioning him directly upon that point. That no doubt is the correct method of proving the document. In an earlier case, Neel Kanto Pandit v. Jaggobundhoo Ghose (2), the execution of the document is said to have been proved in this manner. “It appears that in this case the evidence which was given in support of the document upon which the defendant's case depends, was that of Quzi before whom the vendor came and admitted the deed to be his, and caused it to be registered, bringing witnesses to his execution thereof, and in fact going pretty much through the same forms as are now in force under the Registration Act. Upon that evidence the lower appellate Court very naturally came to the conclusion that the deed was proved and the only question which we have to consider is, whether the Court was precluded from doing so by Section 67 of the Evidence Act. Upon that evidence the lower appellate Court very naturally came to the conclusion that the deed was proved and the only question which we have to consider is, whether the Court was precluded from doing so by Section 67 of the Evidence Act. Now it is contended that section renders it necessary that direct evidence of the handwriting of the person who is alleged to have executed the deed, must be given by some person who saw the signature affixed.” But that is not expressly stated in the section, and it does not appear to me that was the intention of the legislature. 6. It seems to me that section merely states with reference to deeds what is the universal rule in all cases, that the person who makes the allegation must prove it. “It lays down no new rule whatever as to the kind of proof which must be given.” It may be that the plaintiff's pleader was misled by this ruling or by the practice prevailing in the Court of first instance, and the document was not placed in the hands of the witness. In a case like this the presiding officer of the Court ought to have himself directed this to be done. In the case of Bakshi Ram v. Liladhar (3) a Division Bench of this Court under somewhat similar circumstances considered it desirable to send the case back to give the plaintiff an opportunity of formally proving the document. Their Lordships of the Privy Council in the case of Babu Ganga Prasad v. Babu Inderjit Singh (4) adopted a somewhat similar course. I think that in this case the ends of justice require that the plaintiff should be given another opportunity of formally proving the document. 7. The case has not been properly tried in either of the Courts below. I set aside the decree of the Court below and remand the case to the Court of first instance through the District Judge of Agra under O. 41, R. 23 and direct that Court to restore the suit to its file of pending cases and after recording such evidence as the parties may adduce relevant to the issues before him, to dispose of the case in accordance with law. As the defect in the proof of the document in this case was mainly due to the fault of the plaintiff or his legal adviser, I direct that costs incurred in this Court and in the lower appellate Court by the appellant shall be borne by him. The costs in the first Court shall be costs in the cause.