JUDGMENT : Mohapatra, J. - This is a Defendant's second appeal against the confirming judgment of the lower appellate court arising out of a suit for foreclosure on the basis of a mortgage transaction dated 9-5-1944 for a consideration of Rs. 400/-. The transaction had taken place in the ex-State area of Nilgiri. The Defendant had taken up several pleas denying the passing of consideration and further asserting that the transaction Was never acted upon and therefore the original deed never came into the custody of the Plaintiff. The Defendant had made a further attack that this Was not a valid mortgage transaction in accordance with law. 2. Both the courts below have found as a matter of fact, inspite of the position that the original deed was not forthcoming from the custody of the Plaintiff, that the Plaintiff has proved, by overwhelming evidence, that the transaction was for consideration. The concurrent finding appears to be unassailable in second appeal. But this is not sufficient to dispose of the appeal. 3. Mr. R. Das, appearing on behalf of the Appellant, has taken up the point that this is not a valid mortgage bond as it has not been attested by two attesting witnesses as required under the provisions of Section 59 of the Transfer of Property Act. Manifestly the mortgage transaction discloses only one attesting witness. It is essential under the provisions of Section 59 that in order that the transaction may be enforced as a mortgage transaction, it must be attested atleast by two attesting witnesses, and under the definition of "attestation" not only that the executant most sign in the presence of the attesting witnesses or acknowledge the signature before the attesting witnesses but that the attesting witnesses most also sign in the presence of the executant or executants. This provision came Into force ever since the Amending Act of the year 1927. 4. The point urged by the learned Counsel appearing on behalf of the Respondent is that the Sub Registrar before whom the executant admitted the signature can be taken to be an attesting witness in order to comply with the provisions of Section 59. In my opinion, the Sub Registrar cannot be taken to be a competent attesting witness simply by the endorsement that the executant had admitted the signature before him. In my opinion, the Sub Registrar cannot be taken to be a competent attesting witness simply by the endorsement that the executant had admitted the signature before him. The bilateral requirement of the provisions of Section 3, that is the definition of toe word "attested" requires, as I have indicated above, that the Sub Registrar must also sign in the presence of the executant or executants. In the present case that item of evidence is conspicuously absent. I would in this connexion refer to a decision of their Lordships of the Privy Council in the case of AIR 1939 117 (Privy Council) . Their Lordships decided one of the essentials of attestation of mortgage deed is that each of the attesting witnesses must have signed the instrument in the presence of the executant". On a thorough consideration of the provisions of the Registration Act and of tile Transfer of Property Act their Lordships came to the definite conclusion that the Sub-Registrar could not be taken to be an attesting witness as there was nothing to indicate that he had signed in the presence of the executants. Mr. R.K. Das, the learned Counsel for the Respondent, relies upon a Full Bench decision of the Madras High Court in the case of Verappa Chettiar v. Subrahmanaya Ayyar AIR 1939 Mad. 1 (FB). He placed the entire judgment which is just less than a column. This aspect of the matter has been completely ignored there. In my opinion, with very great respect 1 will follow the decision of their Lordships of the Privy Council which appears to me exactly in accord with the very definition of "attestation". 5. It is, however, contended that the Transfer of Property Act was not applicable to the ex-State area of Nilgiri in the year 1944, particularly on 9-5-1944 when the transaction in suit was executed. Mr. R. Das, appearing on behalf of the Appellant, has placed before me the Administration Report for 1944-45 which shows that the T. P. Act applies. Indeed there is no mention of the date when the T.P. Act was made applicable; but as the Report shows, it is for the year 1944-45, that is, the financial year starting from 1-4-1944 till 31-3-1945. The document came into existence during the financial year and during this time T.P. Act was in force there. Indeed there is no mention of the date when the T.P. Act was made applicable; but as the Report shows, it is for the year 1944-45, that is, the financial year starting from 1-4-1944 till 31-3-1945. The document came into existence during the financial year and during this time T.P. Act was in force there. Bot even if the T.P. Act was not in force, I will still hold that the Plaintiff must be hit, because it is the admitted case of both parties that even though the Act was not in force in letter and spirit, the principle underlying the provision was applicable. In my opinion this is the very spirit and principle underlying the provisions of attestation that it must be bilateral. The amending Act came into force in the year 1927. As there was some conflict and there was a lacuna, it is for this reason- that even though it came into force in the year 1921, the language of the statute was so framed that it Was made retrospective and it applied even to the transaction which came into existence earlier than 1927. I am therefore of the view that it is not proved that the transaction was validly attested and it is therefore not enforceable as a mortgage transaction. 6. The appeal therefore is allowed and the suit is dismissed. Each party is to bear his own costs throughout as the suit fails on a point of law. Appeal allowed. Final Result : Allowed