Judgement Consolidated Appeals from judgments and decrees of the High Court (March 29, 1909) varying a judgment and decree of the Subordinate Judge of Jaunpur (May 25, 1905). The suit was instituted by certain of the respondents as mortgagees under a deed dated June 25, 1892, for a decree for sale of part of the properties comprised therein. The mortgagors under the deed in question were two Mahomedan pardanishin ladies. The Subordinate Judge passed a decree in favour of the plaintiffs as to part of their claim. The High Court, upon appeal, allowed the claim in full. The appeal originally came before the Judicial Committee for argument on February 12, 1913, when the appellants relied on the judgment in Shamu Patter v. Abdul Kadir Ruvuthan(( 1912) L. R. 39 Ind. Ap. 218.) (which had been decided by the Judicial Committee subsequently to the decision of the High Court in the present case) and contended that the mortgage deed was unenforceable by reason that it was not duly " attested by two witnesses " within the meaning of the Transfer of Property Act (IV. of 1882), s. 59. This objection had not been raised in the High Court or before the Subordinate Judge. The Judicial Committee remitted the case in order that evidence might be taken as to the method of attestation. Upon that evidence, the nature of which appears from their Lordships judgment, the learned judges of the High Court differed in opinion as to whether the deed had been duly attested. The learned Chief Justice after reviewing the evidence, part of which he disbelieved, said "if, therefore, it was absolutely necessary that two of the witnesses to the mortgage should have actually seen the ladies write their names, I cannot hold that this has been proved; I believe that the ladies signed the deed behind the pardah and that none of the witnesses saw them sign." He accordingly held that the deed was not admissible in evidence. Banerji J. differed, finding upon the evidence that the executants, when they signed the deed, were so placed behind a doorway that their hands in affixing their signatures extended beyond it, and that although the witnesses could not see the faces of the •executants they saw the signatures placed upon the document. Banerji J. differed, finding upon the evidence that the executants, when they signed the deed, were so placed behind a doorway that their hands in affixing their signatures extended beyond it, and that although the witnesses could not see the faces of the •executants they saw the signatures placed upon the document. The facts as to the further question which arose upon the appeal, namely, whether in the events which had happened the respondents were entitled to enforce their claim under the mortgage against the village of Baragaon in the appellants possession, appear from their Lordships judgment. The question as to the attestation was argued as a preliminary point. Sir Erle Richards, K.C., and Kenworthy Brown, for the appellants. The deed was not duly attested within the meaning of s. 59 of the Transfer of Property Act, 1882. The observations in Ganga Dei v. Shiam Sundar (( 1903) I. L. R. 26 Allah. 69, at p .71.), that in the case of a pardanishin woman a wider construction ought to be placed upon the word " attested " as used in the section than in the case of other persons, must be taken to have been disapproved by the judgment of the Board in Shamu Patter v. Abdul Kadir Ruvuthan.(L. R. 39 Ind. Ap. 218.) The effect of the latter case is that the witnesses must actually see the executants sign. It is not sufficient that they should see a hand signing and should satisfy themselves by inquiry or information that the hand is the hand of the executant. [Casement v. Fulton (( 1845) 3 Moo. P. C. 395.) and Freshfield v. Reed (( 1842) 9 M. & W. 404.) were referred to.] De Gruyther, K.C., and Babe, for the respondents. The evidence establishes that the deed was duly " attested." That word only implies that the witnesses were present at the time of the execution and saw the signature made. It is not necessary that the witnesses should be able to prove the identity of the executant. If, however, identification is necessary, the two witnesses heard the executants speak and identified them by their voices. [Parke v. Mears ((1800) 2 Bos, & P. 217.) was referred to.] Sir Erle Richards, K.C., replied. It is not necessary that the witnesses should be able to prove the identity of the executant. If, however, identification is necessary, the two witnesses heard the executants speak and identified them by their voices. [Parke v. Mears ((1800) 2 Bos, & P. 217.) was referred to.] Sir Erle Richards, K.C., replied. Their Lordships intimated that they were of opinion that the deed was validly attested for reasons to be given later, and they desired to hear the appellants upon the further questions raised. Sir Erle Richards, K.C., and Kenworthy Brown, for the appellants. The debt now sued for was secured by a first mortgage on Arghupur, among other villages, and the present respondents lost or gave up that security. A proportionate reduction should be made in the amount decreed as against the incumbered property in the hands of subsequent purchasers and mortgagees of the mortgagors interest. The decree made in the 1896 suit could not have been made without the consent of the respondents, who must be taken to have abandoned their rights as against Baragaon. If a first mortgagee does not insist upon his rights and thereby prejudices the position of a subsequent mortgagee, his claim against the mortgaged property is liable to be abated. [Jugal Kishore Sahu v. Kedar Nath (( 1912) I. L. R. 34 Allah. 606.), Ponnusami Mudaliar v. Srinivasa Naickan (( 1908) I. L. R. 31 Madr. 333.). Imam Ali v. Baij Nath Ram Sahu (( 1906) I. L. R. 33 Cale. 613, at 621.), and Transfer of Property Act (IV. of 1882), s. 97, were referred to.] The respondents were not called upon. The judgment of their Lordships was delivered by SIR JOHN EDGE. These are consolidated appeals from decrees, dated respectively March 29, 1909, of the High Court of Judicature at Allahabad. The two decrees appealed from were made in appeals in the same suit. The suit was brought in the Court of the Subordinate Judge of Jaunpur on November 29, 1904, to enforce, by sale of the village Baragaon and other villages, the payment of Rs.66,809 odd, due under a mortgage dated June 25, 1892. The Subordinate Judge decreed the claim in part, and in part dismissed it. Each side-appealed to the High Court at Allahabad. The High Court dismissed the defendants appeal, and in the plaintiffs appeal gave them a decree for their claim. The Subordinate Judge decreed the claim in part, and in part dismissed it. Each side-appealed to the High Court at Allahabad. The High Court dismissed the defendants appeal, and in the plaintiffs appeal gave them a decree for their claim. When these consolidated appeals first came on for hearing before this Board it was contended on behalf of the appellants that the mortgage upon which this suit was brought had not been attested by at least two witnesses, and as the amount secured by it exceeded 100 rupees the alleged mortgage was ineffective and could not be given in evidence. That point had not been raised in either of the Courts below. Under the circumstances this Board remanded the case to the High Court in order to enable the parties to produce evidence on the question of attestation. Evidence on that subject has been taken and has been returned to this Board. On behalf of the appellants it has now been contended that the evidence which was given on the remand in proof of the attestation was unreliable, and, even if accepted as true, did not prove that the two attesting witnesses who gave evidence on the remand had seen the mortgagors sign their names to the mortgage. The mortgagors were two pardanishin ladies who did not appear before the attesting witnesses, and consequently their faces were not seen by the witnesses. These two attesting witnesses were, however, well acquainted with the voices of the ladies, and their Lordships are satisfied that these two attesting witnesses did identify the mortgagors at the time when the deed was executed. The mortgagors were, on the occasion of the execution of the mortgage deed, brought from the zenana apartments of the house in which they were to an ante-room to execute the deed. In the ante-room the ladies seated themselves on the floor, and between them and these two attesting witnesses there was a chick, which was not lined with cloth, hanging in the doorway. These two attesting witnesses recognized the ladies by their voices, and they say that they saw each lady execute the deed with her own hand, although owing to the chick they were unable to see the face of either of the ladies. On the other side an attempt was made to prove that a tat, through which nothing could be seen, was hanging in the doorway. On the other side an attempt was made to prove that a tat, through which nothing could be seen, was hanging in the doorway. Their Lordships accept the evidence of these two attesting witnesses as true, and hold it proved that the mortgage deed of June 25, 1892, was duly attested by at least two witnesses within the meaning of s. 59 of the Transfer of Property Act, 1882. It is not disputed that the mortgage deed was in fact the deed of the two pardanishin ladies, Musammat Niamat Bibi and Musammat Kamar-un-Nisa Bibi, the mortgagor . The only other question to be considered in these appeals is the contention on behalf of the appellants that the plaintiffs in the suit have by reason of certain events, which will now be referred to, lost their right to enforce against Baragaon payment of a considerable part of the amount which they have claimed. On August 8, 1887, Musammat Niamat Bibi and Musammat Kamar-un-Nisa, who will be hereafter referred to as the mortgagors, mortgaged the villages Arghupur and Baragaon to Sarju Parshad and Ramanand to secure Rs.12,000 and interest thereon. On February 19, 1892, the mortgagors mortgaged Arghupur to Lukshmi Prasad and others to secure Rs.30,000 and interest thereon. The mortgagees of February 19, 1892, and their representatives in title will hereafter be referred to as the second mortgagees. On June 25, 1892, the mortgagors by their deed of that date mortgaged Arghupur and Baragaon, together with three other villages, to Sarju Parshad and Ramanand to secure Rs.32,000 and interest theieon. This sum of Ks.32,000 included a sum of Rs.18,000 principal and interest then due under the mortgage of August 8, 1887. On May 20, 1893, the mortgagors further mortgaged Arghupur to the second mortgagees to secure Rs.21,324 and interest thereon. Sarju Parshad is dead ; he is represented in this suit by his son, Ram Narain, who is one of the three plaintiffs. The other plaintiffs are Ramanand and his son S. Narain. On May 20, 1893, the mortgagors further mortgaged Arghupur to the second mortgagees to secure Rs.21,324 and interest thereon. Sarju Parshad is dead ; he is represented in this suit by his son, Ram Narain, who is one of the three plaintiffs. The other plaintiffs are Ramanand and his son S. Narain. On December 14, 1896, the second mortgagees brought a suit in the Court of the Subordinate Judge of Jaunpur upon their mortgages of February 19, 1892, and May 20, 1893, to obtain a decree for the principal moneys and interest due under the said mortgages, and they prayed that, in default of payment on a date to be fixed by the Court, Arghupur should be sold by auction and the proceeds of the sale should be applied towards the satisfaction of their decree. To that suit the second mortgagees made Musammat Kamar-un-Nisa Bibi as one of the mortgagors and as the heiress of Musammat Niamat Bibi, then dead, the other mortgagor, Sarju Parshad, Ramanand, and one Indar Sen Singh, defendants. Indar Sen Singh was a subsequent mortgagee; he is a defendant to this suit, but is not an appellant. To that suit the second mortgagees made Musammat Kamar-un-Nisa Bibi as one of the mortgagors and as the heiress of Musammat Niamat Bibi, then dead, the other mortgagor, Sarju Parshad, Ramanand, and one Indar Sen Singh, defendants. Indar Sen Singh was a subsequent mortgagee; he is a defendant to this suit, but is not an appellant. In their plaint the second mortgagees stated that Sarju Parshad, Ramanand, and Indar Sen Singh were mortgagees of Arghupur, and that they, the then plaintiffs, " were ready to pay the mortgage money due to any of them who may be prior mortgagees and which they (the plaintiffs) may be legally bound to pay." In their written statement in the suit of 1896, Sarju Parshad and Ramanand distinctly claimed their right as prior mortgagees and said, " If the plaintiffs be willing to get the hypothecated property sold, after paying in full the prior amount due to these defendants, they have no objection whatever to the plaintiffs claim." The then Subordinate Judge of Jaunpur, being obviously in confusion of mind as to the rights of the parties to the suit of 1896, by his judgment of January 19, 1897, decided amongst other things that Arghupur should be sold by auction in the event of the defendants to the suit failing to pay, on or before May 19, 1897, to the plaintiffs in that suit (the second mortgagees) Rs.49,275.9.O, the principal and interest due under the mortgage of February 19, 1892, and future interest, and that the proceeds of the sale should be applied first in payment of the amount due to the second mortgagees under their mortgage of February 19, 1892, and that the balance, if any, should be " applied in payment of the sum which may be due to Sarju Parshad and Ramanand on that date with interest. Any surplus left to be applied in payment of the sum due to the plaintiffs under the second document, dated May 20, 1893." The Subordinate Judge apparently overlooked the rights of Sarju Parshad and Ramanand under their prior mortgage of August 8, 1887. In accordance with the judgment a decree was made by the Subordinate Judge. Default having been made in payment on the date fixed, a decree absolute for sale of Arghupur was made by the Subordinate Judge of Jaunpur on September 4, 1897. In accordance with the judgment a decree was made by the Subordinate Judge. Default having been made in payment on the date fixed, a decree absolute for sale of Arghupur was made by the Subordinate Judge of Jaunpur on September 4, 1897. Under the decree of September 4, 1897, Arghupur was sold. The proceeds of the sale were applied first in payment to the second mortgagees of the sum then due to them in respect of their mortgage of February 19, 1892, and the balance of the proceeds of the sale was paid to the first mortgagees ; that balance did not satisfy the amount then due to the first mortgagees under their mortgage of August 8, 1887. If the proceeds of the sale of Arghupur had been first applied to the payment of the amount then due under the mortgage of August 8, 1887, that mortgage would have been satisfied, and the amount due under the mortgage of June 25, 1892, would have been to that extent reduced. As the proceeds of the sale of Arghupur did not satisfy the amount due to the second mortgagees under their mortgage of May 20, 1893, they obtained a decree under s. 90 of the Transfer of Property Act, 1882, and in execution of this decree the village of Baragaon was sold on April 20, 1904, and was purchased by the appellants. On behalf of the appellants it has been contended before this Board and in the Courts below that Baragaon was relieved of all liability in respect of the debt due under the mortgage of August 8, 1887, by reason of the failure of Sarju Par shad and Ramanand to insist on their priority under that mortgage, it being alleged in support of the contention that Sarju Parshad and Ramanand had agreed to waive their priority as mortgagees of Arghupur, or had waived it, of which, if it were material, there is no proof, and that they were guilty of laches in not insisting on that priority. Their Lordships have found it difficult to follow the argument in support of the contention, as the appellants had no interest in Baragaon until they purchased Baragaon on April 20, 1904, and what they then purchased was the interest of the mortgagors in that village. Their Lordships have found it difficult to follow the argument in support of the contention, as the appellants had no interest in Baragaon until they purchased Baragaon on April 20, 1904, and what they then purchased was the interest of the mortgagors in that village. It is true that had Sarju Parshad and Ramanand appealed against the decree of the Subordinate Judge, they could have had their interests as first mortgagees under the mortgage of August 8, 1887, protected, and would, on the sale of Arghupur, have obtained payment of the amount then due under that mortgage. Sarju Parshad and Ramanand did not, by an appeal, insist on their right as prior mortgagees, but the fact that they did not insist on having the amount due under the mortgage of August 8, 1887, satisfied in priority to the claim of the second mortgagees does not disentitle the plaintiffs to recover the full amount of their claim in this suit, and does not entitle the appellants to relief. No other fact which would entitle the appellants to relief has been shown. The appeals fail. Their Lordships will humbly advise His Majesty that these consolidated appeals should be dismissed. The appellants must pay the costs.