KAN SINGH, J.—This is a plaintiffs appeal directed against the judgment and decree of the learned Additional District Judge, Sirohi dated 28.4.69 dismissing the plaintiffs suit for recovery of money on the foot of a mortgage. It raises the question about the validity of the attestation on the mortgage deed as also regarding the mode of proving the execution of the mortgage deed. 2. Plaintiff Nos. 1 and 2 were father and son respectively. Deceased Pratap Chand was appellant Tara Chands father. According to the plaintiffs defendant No. 1 Kesrimal acting for himself and for and on behalf of his minor sons defendants Nos. 2 and 5 executed a mortgage deed for a sum of Rs. 12,000/- on 23-7-54 in favour of the plaintiffs Nos. 1 and 2 and Tara Chands father Pratap Chand. The mortgage deed was not registered the same day. According to it, a house and a shop described in para 1(b) of the plaint were mortgaged and the possession of the mortgaged property was handed over to the mortgagees and the mortgagors executed a rent not the same day agreeing to pay Rs. 60/- per month as rent for the property. It does not appear that there was any stipulation to pay interest. However, as the rent fell in arrears after sometime the plaintiffs brought a suit against the mortgagors-tenants for arrears of rent and eviction in the court of Civil Judge, Sirohi. On 9-12-58 a decree was passed in plaintiffs favour for an amount of Rs. 2144/- in that suit. In execution of the decree the plaintiffs got attached to the equity of redemption in the aforesaid property and that property was put to sale. Javerchand deceased had purchased the property. As Javerchand had died, defendants No. 6 and 7, who were his brothers were impleaded in place of Javerchand. In the present suit the plaintiffs prayed for Rs. 12000/- and also prayed that the mortgage property be put to sale and further if the mortgage amount remained unpaid a personal decree be passed against the defendants. As against defendants Nos. 6 and 7 it was alleged that they had purchased the property subject to mortgage and with the full knowledge of the plaintiffs rights and, therefore, they would be deemed to have stepped into the shoes of the mortgagors and were liable to the same extent as the mortgagors. 3. As against defendants Nos. 6 and 7 it was alleged that they had purchased the property subject to mortgage and with the full knowledge of the plaintiffs rights and, therefore, they would be deemed to have stepped into the shoes of the mortgagors and were liable to the same extent as the mortgagors. 3. Defendant No. 1 Kesrimal did not appear to contest the suit and the proceedings remained ex parte against him. Defendants Nos. 2 to 5 however contested the suit. They did not admit the execution of the mortgage by their father and pleaded in the alternative that even if that be taken to have been executed, they were not liable for it. They also denied that the possession of the suit property was handed over to the plaintiffs. Some other pleas were also raised by them. The defendants Nos. 6 and 7 also contested the suit. They took the position that the mortgage was invalid for want of proper attestation. They averred that the endorsements of the so-called attesting witnesses appeared above the signature of the executant Kesrimal and as such this was not a valid attestation. 4. The learned Additional District Judge framed the following issues :— "(1) Whether the plaintiffs are the legal heirs of Pratapchand deceased? P. (2) Whether defendant No. 1 had executed a mortgage deed of the suit property for Rs. 12,000/ on 23-7-54 in favour of plaintiffs Nos. 1 and 2 and deceased Pratapchand in his own capacity of the manager of joint Hindu family and had handed over possession of the mortgage security and got the deed registered on the same day? P. (3) Whether the defendant No. 1 in his own capacity as well as in the joint Hindu family executed a rent note in favour of the plaintiffs Nos. 1 and 2 and deceased Pratapchand stipulating to pay rent Rs. 60/- p.m. on 23-7-54? P. (4) Whether a decree for arrears of rent and eviction was passed in civil suit No. 38/58 by the Civil Judge, Sirohi against defendants Nos. 1 to 5? P. (5) Whether in execution of that decree only the rights of the mortgagor were sold in execution case No. 79/60 and the said mortgage was duly notified in sale proclamation ? P. . (6) Whether defendants Nos. 6 and 7 are legal heirs of deceased Jevenchand ? P. (7) Whether defendants Nos. 1 to 5? P. (5) Whether in execution of that decree only the rights of the mortgagor were sold in execution case No. 79/60 and the said mortgage was duly notified in sale proclamation ? P. . (6) Whether defendants Nos. 6 and 7 are legal heirs of deceased Jevenchand ? P. (7) Whether defendants Nos. 6 and 7 are also liable for the payment of the mortgage money amounting to Rs. 12000/- ? P. (8) Whether the plaintiffs suit is time barred ? D. (9) Whether the plaintiffs could not bring this suit without obtaining letters of administration and succession certificate? D. (10) Whether the mortgage is without consideration? D. (11) What relief ?" 5. On the side of the plaintiffs six witnesses were examined. P.W. 4 was the plaintiff Tarachand. He stated that the mortgage deed Ex. 1 was executed by Kesrimal as Karta of the family in his favour. It was scribed by Mohanraj P. W. 1 According to Tarachand, Chhaganlal was the first attesting witness to make the attestation & then Kesrimal signed the document. However, as no other person was present there, the plaintiff and Kesrimal went to the office of Shri Pranraj Advocate. There they came across one Achaldas who made the second attestation at the behest of Kesrimal. P.W. 1 Mohanraj was the scribe of the document Ex. 1. He stated that he had written out Ex. 1 as desired by Kesrimal who had his signature A to B on the document in his presence. P. W. 2 Pukhraj was the brother of Achaldas and as Achaldas had died before the institution of the suit, Pukhraj was called to depose that the writing P to Q on the document was that of his brother Achaldas. P.W. 3 was Shri Durga Chand, the Sub-Registrar, who had registered the document Ex. 1 on being presented by Kesrimal. He stated that the endorsement M to N on the document Ex. 1 was in his hand. Kesrimal was asked by him about the execution and he admitted to have signed the document at A to B. Then as the witness did not know Kesrimal he asked him to produce an identifying witness. Accordingly, Kesrimal brought P. W. 6 Shri Parasmal Advocate who identified Kesrimal. Kesrimal then signed the document in his presence at Y to Z. There is some confusion about the making of signatures or attestation. Accordingly, Kesrimal brought P. W. 6 Shri Parasmal Advocate who identified Kesrimal. Kesrimal then signed the document in his presence at Y to Z. There is some confusion about the making of signatures or attestation. As already noticed P to Q, according to P. W. 2 Pukhraj were the writing of his brother Achaldas, whereas according to Shri Durga Chand it was at P to Q that Kesrimal had put his signatures. He further stated that he had put his own signatures Y to Z in the presence of Kesrimal and Parasmal. P.W. 5 Valchand stated that the suit house had been auctioned and he was one of the Motbirs called by the Amin. He stated that before Javerchand gave his bid he read the sale proclamation in his presence. P. W. 6 Shri Parasmal stated about his identifying Kesrimal in the presence of the Sub-Registrar. 6. The defendants had not produced any evidence in rebuttal. 7. The learned Additional District Judge held (1) that the mortage deed Ex, 1 was scribed by Kesrimal,(2) that it was with consideration, (3) that only one attestation and that too by the Sub-Registrar Shri Durga Chand had been established. The learned Judge thought that Shri Durga Chand could be treated as an attesting witness in the circumstances. The learned Judge however did not treat the attestations purporting to be by Chhaganlal and Achaldas respectively to be valid. Consequently he held that the document Ex. 1 cannot be treated as a valid mortgage as could be enforced against the defendant. The learned Judge further held on the basis of the rent note Ex. D/2 produced by P. W. 4 Tarachand, the plaintiff, that the sons of the mortgagors were bound by the mortgage deed. In the result, the learned Judge dismissed the suit, but left the parties to bear their own costs. 8. In assailing the judgment and decree of the learned trial Judge, learned counsel for the appellants contended that the attestation of Chlaaganlal and Achaldas on the mortgage deed Ex. 1 were valid and further the endorsement made by the Sub-Registrar as well as that by the identifying witness P. W. 6 Parasmal could also be regarded as valid attestation in the circumstances. 1 were valid and further the endorsement made by the Sub-Registrar as well as that by the identifying witness P. W. 6 Parasmal could also be regarded as valid attestation in the circumstances. Learned counsel further contended that one attesting witness Durgachand has been examined by the plaintiffs, but even that too was not required as in accordance with the proviso to sec. 68 of the Evidence Act the defendants had not specifically denied the execution of the mortgage deed by Kesrimal. Learned counsel maintained that Chhaganlal was summoned though he did not appear and that amounted to his being called within the meaning of sec. 68 of the Evidence Act and since the witness had not appeared, the document could be proved by other evidence. In the alternative, learned counsel for the appellants submitted that even if the mortgage deed Ex. 1 is held to be invalid for want proper attestation it could nevertheless be regarded as a valid charge under sec. 100 of the Transfer of Property Act. 9. Learned counsel for the respondents countered the submissions of learned counsel for the appellant and tried to support the judgment of the trial court. 10. Both the learned counsel cited a number of cases and I will be referring to such of them as could afford any help in the course of what I an going to say hereinafter. The points that arise for consideration are:(l) Wheher the mortgage deed Ex. 1 contains atleast two attestations as required by sec. 59 of the Transfer of Property Act ? (2) Whether the defendants could be said to have specifically denied the execution of the mortgage deed by Kesrimal so as to dispense with the necessity of atleast calling one of the attesting witnesses for proving the document Ex. 1 ? (3) Whether for want of proper attestation the mortgage deed Ex. 1 could be treated as a charge and be enforced as such ? , 11. Before proceeding further I may refer to the mortgage deed Ex. 1. It commences by saying that it was being written by Kesrimal Mahajan of Sumerpur in favour of Pratapchand, Tarachand, and Mukanmal of Sumerpur. Kesrimal had one house and a shop which he was mortgaging as a usufructuary mortgage for Rs. 12000/-. , 11. Before proceeding further I may refer to the mortgage deed Ex. 1. It commences by saying that it was being written by Kesrimal Mahajan of Sumerpur in favour of Pratapchand, Tarachand, and Mukanmal of Sumerpur. Kesrimal had one house and a shop which he was mortgaging as a usufructuary mortgage for Rs. 12000/-. There would be no interest for the amount and the mortgagee would not be paying any rent to the mortgagors, but the latter would be repaying the loan whenever demanded by the mortgagee. Then it is mentioned that Rs. 11,000/- had been taken on 12-7-54 for business and Rs. 1000/- were being taken on 23-7-54. The description of the property that was mortgaged is given in the document and then it concludes by saying that the document was being written by Kesrimal for himself and on behalf of his family as Karta. Then the scribe had written the following in the concluding sentence : ^^la- 2010 jk lko.k cn 9 rk- 23-7-54 nkk eqíh eksgujkt fdyh;k.keyth o jk dsljheyth jk ds.kk lq ?kkyh esa jkk ukk 394A** Therafter the two attestations appear and then below the attestations is the signature of Kesrimal. I may read this portion of the document in full. lk[k 1 vpynkl usehpUn lhesy okyk jh ls gkk lk dsljheyth /kqikth lqesjiqj okyk js ds.kkalq lk[k ?kkyh ls lk[k 1 lk% Nxuyky panjHkk.kth lk- iyk.kk okyk jk ls gk% lk dsljheyth /kqikth lqesjiqj okyk js ds.kk lq lk[k ckyh esa /kkyh gS n% dsljhey Fkqekth jk gS Then the endorsement of the Sub-Registrar and that of Parasmal (P. W. 6) at the time of registration are as follows : — rdehy dcwy dh xbZA rdehy dqUunk eqleh dsljhey oYn /kwikth dkSe iksjoky lkfdu lqesjiqj rglhy okyh gkftj ftldks Jh ikjley odhy lkfdu okyh igpkurk gSA ftldks eSa lc jftLVªkj okyh igpkurk gwWA rdehy dqUunk us nLrkost fy[kus ls oks ekotk ikus ls bdcky fd;kA nLrkost jftLVjh fd;k x;kA Qdr 23-7-54A n% dsljhey Sd/- Sub-Registrar Bali." "I know Keshrimalji S/o Dhupaji of Sumerpur. Sd/- Parasmal Mehta, Advocate Bali." 12. The question here is whether the so called attestation by persons who had made the attestation even before the executant signed the document can be taken to be a valid attestation within the meaning of sec. 59 of the Transfer of Property Act. The term "attested" has been defined in sec. Sd/- Parasmal Mehta, Advocate Bali." 12. The question here is whether the so called attestation by persons who had made the attestation even before the executant signed the document can be taken to be a valid attestation within the meaning of sec. 59 of the Transfer of Property Act. The term "attested" has been defined in sec. 3 of the Transfer of Property Act as follows : — "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary." The ordinary dictionary meaning of the word "attest" is "to testify or bear witness to", "to affirm by signature or oath", "to give proof of:", "to manifest:", "to call to witness" vide Chambers Twentieth Century Dictionary Revised Edition. Their Lordships of the Supreme Court had occasion to consider the question as to what is a valid attestation within the meaning of sec. 3 of the Transfer of Property Act in a recent case reported as M. L. Abdul Jabbar vs. Venkata Sastri(l). Their Lordships observed : — "The word "attested" occurs in sec. 3, T. P. Act, as part of the definition itself. To attest is to bear witness to a fact. The essential conditions of a valid attestation under sec. 3 of T. P. Act are : (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his "signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. 3 of T. P. Act are : (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his "signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animus attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g. to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness." 13. It is, therefore, necessary to see whether the plaintiffs had been able to establish that the so-called attesting witnesses had seen the executant sign the instrument or had received from him a personal acknowledgment of the signature and whether each of the attesting witnesses had signed the instrument in the presence of the executant. The next essential requirement is that an attesting witness put, his signature animo attestandi that is, for the purposes of attesting that he had seen the executant sign or had received from him a personal acknowledgment of his signature. If the signature on the document is put for some other purpose namely, to certify that he is a scribe or an identifier or a registering officer then he is not an attesting witness. Now, the plain language of the endorsement by Achaldas and Chhaganlal cannot, in the circumstances, be taken as sufficient to prove that these attesting witnesses had seen the executant sign the document or had received personal acknowledgment of his signature. The reason is obvious as the signature had not been put by Kesrimal before these persons had recorded their attestations. The document also does not show that the so-called attestations were made by these persons in the presence of Kesrimal. Of course, animo attestandi could be taken to be there when Achaldas and Chhaganlal made the endorsements. 14. In Nathu vs. Ghisia(2), Bhandari J., as he then was, had pointedly considered the question whether a person who makes the attestation before the signature is put by the executant can be treated as an attesting witness within the meaning of sec. Of course, animo attestandi could be taken to be there when Achaldas and Chhaganlal made the endorsements. 14. In Nathu vs. Ghisia(2), Bhandari J., as he then was, had pointedly considered the question whether a person who makes the attestation before the signature is put by the executant can be treated as an attesting witness within the meaning of sec. 3 of the Transfer of Property Act. After setting out the definition of the term "attested" as given in the Transfer of Property Act the learned Judge observed : "Though this definition expressly does not say that the attesting witnesses should sign the document after the executant has signed or affixed his mark to the instrument, yet it is implicit in the definition that the executant should have signed or affixed his mark first and then the attesting witnesses should have attested it. This flows from the words "each of whom has seen the executant sign or affix his mark to the instrument or seen some other person sign the instrument in the presence of and by the direction of the executant." I am in respectful agreement with the above observations. In my opinion, therefore, Achaldas & Chhaganlal cannot be taken to have attested the document Ex. 1 as required by the provisions of sec. 59 of the Transfer of Property Act. 15. The next question is whether the Sub-Registrar or Parasmal for that matter could be regarded as attesting witnesses. P. W. 3 Shri Durga Chand stated that Ex. 1 was presented by Shri Kesrimal. The endorsement of presentation was in the hand of the witness. Thereafter the witness called Kesrimal before making his endorsement of registration and he admitted before him that signatures A to B were of his. However, as the witness did not know Kesrimal he asked him to produce an identifying witness. This Kesrimal had done by producing P. W. 6 Parasmal. Then Kesrimal put his signature of identification K to L. Thereafter the witness put his signature Y to Z in the presence of Kesrimal and Parasmal. 16. Now, sec. 34 of the Registration Act provides for enquiry before registration by the registering officer. It, inter alia, lays down that the registering officer shall enquire whether or not such document was executed by the persons by whom it purports to have been executed. 16. Now, sec. 34 of the Registration Act provides for enquiry before registration by the registering officer. It, inter alia, lays down that the registering officer shall enquire whether or not such document was executed by the persons by whom it purports to have been executed. The registering officer shall further satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document. Now, by what Shri Durga Chand was doing in enquiring from Kesrimal was whether he had executed the document or when he called upon him to produce an identifying witness he was just carrying out his statutory duty as a registering officer. In the absence of anything more it cannot be predicated that the registering officer Shri Durga Chand had the necesary animus of attesting the document namely, that of testifying or bearing witness to, or to give proof of the document. Likewise, P. W. 6 Parasmal cannot be said to have the requisite animus. Learned counsel for the appellant relied on certain observations of their Lordships of the Privy Council in Surendra Bahadur Singh vs. Behari Singh (3) for the argument that the Sub-Registrar could be regarded as an attesting witness. Learned counsel emphasised that in M. L. Abdul Jabbar vs. Venkata Sastri(l) their Lordships of the Supreme Court had agreed with the observations of the Privy Counsel in this regard. In the case before their Lordships of the Privy Council the question arose whether the endorsement of the Sub-Registrar or the contents of the registration endorsement containing admission of execution of the deed by the executant could amount to an attestation of the mortgage deed. Their Lordships decided the question as consideration of the evidence whether the signatures were made by the Registrar or the identifying witness in the presence of the executant. This is what their Lordships were pleased to observe : — "One of the essentials of attestation of a mortgage deed is that each of the attesting witnesses must have signed the instrument in the presence of the executant. Where Sub-Registrar and identifying witnesses have affixed their signatures to the registration endorsement under sec. This is what their Lordships were pleased to observe : — "One of the essentials of attestation of a mortgage deed is that each of the attesting witnesses must have signed the instrument in the presence of the executant. Where Sub-Registrar and identifying witnesses have affixed their signatures to the registration endorsement under sec. 58 & 59, Registration Act admitting execution of a mortgage deed but there is no evidence that signatures were made in the presence: of the executant, the signatures assuming that it would be legitimate to look at the proceedings relating to the registration of mortgage deed for the purpose of proving the due execution and attestation thereof, cannot be said to have proved due attestation as required by sec. 59 T.P. Act. If the particulars which are to be endorsed on documents which are admitted for registration under sec. 58, Registration Act, do not include the statements as to whether the signatures were made in the presence of the executant, sec. 58, 59 and 60 Registration Act, are of no avail. The endorsements made at the time of registration are relevant to the matter of registration only." Now from these observations the learned counsel for appellants seeks to build an argument that if the Registrar or the identifying witnesses had signed in the presence of the executant, their Lordships would have treated the endorsement of the Registrar or that of the identifying witness as a valid attestation. I am afraid, learned counsel is reading too much in these observations. It is a matter of speculation whether their Lordships would have held the Registrar or the identifying witnesses as their attesting the document even without the necessity of establishing animus to attest on the part of these persons. For the requirement of the animus to attest, the Supreme Court authorities are quite clear and in the present case it cannot be said that either Shri Durga Chand (P.W. 3), the Sub-Registrar, or the identifying witness P. W. 6 Parsamal had the requisite animus to attest the document. In the result, therefore, I am of the opinion that none of the so-called attestations on Ex. 1 can be regarded as valid attestations within the meaning of sec. 59 of the Transfer of Property Act. 17. In the result, therefore, I am of the opinion that none of the so-called attestations on Ex. 1 can be regarded as valid attestations within the meaning of sec. 59 of the Transfer of Property Act. 17. Now, I may turn to the second question about there being specific denial or not in the written statement regarding execution of the mortgage deed by Kesrimal by the contesting defendant. Para-1 of the plaint and paras 1 of the respective written statements by the two sets of defendants may be read in juxtaposition : — Para-1 of the Plaint. Para-1 of the written statement by defendants Nos. 6 and 7. Para 1 of the written statement by defendants Nos 2 to 4. Para-1 of the plaint and paras 1 of the respective written statements by the two sets of defendants may be read in juxtaposition : — Para-1 of the Plaint. Para-1 of the written statement by defendants Nos. 6 and 7. Para 1 of the written statement by defendants Nos 2 to 4. 1- ¼v½ ;g gS fd izfroknh ua- 1 us 11]000@& vxh;kjs gtkj rkjh[k 12-7-54 o :i;s 1000@& ,d gtkj rkjh[k 23-7-54 dks dqy :i;s 12]000@& LoxhZ; Jh izrkipanth oYn ckypanth iksjoky fuoklh lqesjiqj oknhx.k ua- 1 o 2 ls dtZ fy;s o bl dtkZ :i;s 12000@& esa izfroknh ua- 1 us cgSfl;r [kqn o drkZ[kkunku o oyh ukckfyxku izfroknhx.k ua- 2 yxk 5 ls viuk futh fuEufyf[kr ikM+ksfl;ksa fcpyk edku e; nqdku okds lqesjiqj rkjh[k 23-7-54 dks LoxhZ; izrkipUnth o oknhx.k ua- 1 o 2 ds ;gka jgufcy dCt j[kk ftldk fy[kr jguukek rkjh[k 27-7-54 dks cgSfl;r [kqn o drkZ[kkunku ds LoxhZ; izrkipUnth o oknhx.k ua- 1 o 2 ds i{k esa fu"ikfnr dj jftLVjh djok fn;k vly fy[kr jguukek okn la[;k 32 lu~ 63 lhfoy tt lkgc] fljksgh esa :ipan cuke ,l-ds- cksgjk esa isk gksus ls mldh eqLrhQk udy lkFk esa isk gksA 1- vthZnkok iSjk ua- 1¼v½ o ¼c½ vLohdkj gSA jde :- 12]000@& ckjg gtkj esa gksuk o jgu [kr fu"ikfnr gksuk ge izfroknhx.k ua- 6 o 7 Lohdkj ugha djrs dfFkr jguukek fnukad 23-7-54 dk jgu [kr dh rkjh[k esa ugha vkrk gSA bldk ,XthD;wlu vVSLVSlu o jftLVªsku drbZ eatwj ugha gSA o edku eqrftdjk jgu fcy dCt LoxhZ; izrkipUnth o oknh ua- 1 o 2 ds ;gka gksuk Lohdkj ugha gSA 1- okn i= in la- 1 ¼v½ loZFkk vLohdkj dj fuosnu gS fd izfroknhx.k dks izfroknh la- 1 }kjk fnukad 12-7-54 dks :- 11]000@& ,oa fnukad 23-7-54 dks :- 1000@& LoxhZ; izrkipanth rFkk oknh la- 1 ,oa 2 ls dtZ fy;s tkuk Lohdkj ugha gS vkSj u izfroknh la- 1 }kjk rFkk dfFkr mä dtsZ esa drkZ [kkunku ,oa ukckfyx izfroknh ,oa izfroknh la- 2] 3 o 4 ds oyh dh gSfl;r ls LoxhZ; izrkipanth rFkk oknhx.k la- 1 o 2 ds ;gka ij la- 1¼c½ esa of.kZr edku jsgu fcydCt j[kuk rFkk rRlEcU/kh jguukek fnukad 23-7-54 muds i{k esa fu"ikfnr dj jftLVªh djk;k tkuk Lohdkj gSA bl in esa fyf[kr lc dFku izfroknhx.k vLohdkj djrs gSA** 18. Sec. 68 of the Evidence Act runs as follows : "Sec. 68. Sec. 68 of the Evidence Act runs as follows : "Sec. 68. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied." It is to be noticed that Kesrimal had not chosen to file any written statement. Nevertheless it was open to the contesting defendants to have specifically denied the signatures of Kesrimal. In Jahuri Sah vs. D.P. Jhunjhunwala(4) the question that arose for consideration was whether the defendant had denied the averment about the adoption of Shankerlal. Their Lordships had to consider that question in the light of Order 8 Rule 5 Civil Procedure Code. This is what their Lordships observed: — "The High Court has pointed out that the plaintiffs have clearly stated in Para 1 of the plaint that Shankerlal had been given in adoption to Sreelal. In neither of two written statements filed on behalf of the defendants has this assertion of fact by the plaintiffs been specifically denied. Instead, what is stated in both these written statements is that the defendants have no knowledge of the allegations made in Para 1 of the plaint. Bearing in mind that O. VIII, R. 5 C.P.C. provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant shall be taken to be admitted, to say that a defendant has no knowledge of a fact pleaded by the plaintiff is not tantamount to a denial of the existence of that fact, not even an implied denial," In the present case When the proviso to sec 68 Evidence Act requires a specific denial much stronger words than saying that the defendants do not admit the plaintiffs averment would be necessary. In other words, there has to be a denial by saying that the execution of the mortgage deed by Kesrimal by whom it purports to have been executed was denied. The denial in the present case, therefore, was not sufficient to be characterised as a specific denial within the meaning of proviso to sec. 68 of the Evidence Act. What is a specific denial will by and large, depend on the nature of the averments made in the plaint and in what words they are sought to be met or replied in the written statement. The observations that I am making here should, therefore, be taken to be in the light of the facts and circumstances of the present case. Be that as it may, as I have come to the conclusion that the document Ex. 1 does not contain a valid attestation the question of calling any attesting witness for proving the document in accordance with the provisions of sec. 68 of the Evidence Act would hardly arise. What sec. 59 of the Transfer of Property Act lays down is about the creation of a mortgage and if a particular mortgage deed does not meet the requirements of sec. 59 of the Transfer of Property Act then no valid mortgage can be said to have been created. What sec. 68 contemplates is how a mortgage deed which is attested has to be proved when it has been registered in accordance with law. 19. Now, finally I may deal with the alternative argument advanced by learned counsel for the appellants that even if Ex. 1 be not taken to be a valid mortgage it could yet be regarded as one creating a valid charge within the meaning of sec. 100 of the Transfer of Property Act. Learned counsel here wants to place reliance on the observations of their Lordships in M.L. Abdul Jabar vs. Vankata Sastri(l). Learned counsel relies on the following : — "The first paragraph of sec. 100 of T. P. Act consists of two parts. The first part concerns the creation of a property. ! A charge may be made by act of parties or by operation of law. No restriction is put on the manner in which a charge can be made. Where such a charge has been created the second part comes into play. 100 of T. P. Act consists of two parts. The first part concerns the creation of a property. ! A charge may be made by act of parties or by operation of law. No restriction is put on the manner in which a charge can be made. Where such a charge has been created the second part comes into play. It provides that all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge. The second part does not address itself to the question of creation of a charge. It does not attract the provisions of sec. 59 of Registration Act relating to the creation of a mortgage. With regard to the applicability of the provisions relating to a simple mortgage, the second part of the first paragraph makes no distinction between a charge created by act of parties and a charge by operation of law. Now a charge by operation of law is not made by a signed, registered and attested instrument. Obviously, the second part has not the effect of attracting the provisions of sec. 59 to such a charge. If a charge can be made by a registered instrument only in accordance with sec. 59 of Registration Act the subsequent transferee will always have notice of the charge in view of sec. 3 of T. P. Act under which registration of the instrument operates as such a notice. But the basic assumption of the doctrine of notice enunciated in the second paragraph is that there may be cases where the subsequent transferee may not have notice of the charge. The plain implication of this paragraph is that a charge can be made without any writing." Now, in the case before their Lordships the defendants had executed a security bond and the defendant was given leave to defend in the original side of the Madras High Court on the condition of his furnishing the security for a sum of Rs. 50,000/- to the satisfaction of the Registrar of the High Court. The condition of the bond was that of paying the appellant the amount of any decree that might be passed in the aforesaid suit and in the event of payment the bond would be void otherwise it would remain in full force. 50,000/- to the satisfaction of the Registrar of the High Court. The condition of the bond was that of paying the appellant the amount of any decree that might be passed in the aforesaid suit and in the event of payment the bond would be void otherwise it would remain in full force. The bond was attested by one B. Somnath and it was also signed by one K. S. Narayana Iyer, Advocate, who explained the document to Hajee Ahmed Batcha the executant, and he also identified him. The properties charged by the bond were located outside the local limits of the ordinary jurisdiction of the Madras High Court. The document was not registered. This case was referred to by learned counsel for the purpose of showing as to what were the requirements of a valid attestation. I have gone through this case with care, but I am unable to hold that the case lays down that a mortgage which may be invalid as a mortgage for want of proper attestation could yet be regarded as a charge within the meaning of sec. 100 of the Transfer of Property Act. Now, a perusal of the definitions of the terms "mart-gage" and "charge" as contained in secs. 58 and 100 respectively, will show the essential difference between the two. In a mortgage interest in the property is conveyed to the mortgagee, whereas this is not so in the case of a charge-holder who can only enforce payment of his debt with reference to particular property charged. The underlying intention has to be gathered from the document under consideration. 20. In the present case the possession of the property came to be transferred to the plaintiffs as soon as the mortgage was executed and it is to be noticed that there was no stipulation for interest in the mortgage deed. The mortgagors had executed a rent note in favour of the mortgagee. The matter did not rest there. The mortgagee had brought a suit for arrears of rent and had obtained a decree and that decree had been put into execution and the mortgage property was sold in execution of the decree subject to mortgage. In such an event it is idle to contend that document Ex. 1 was not intended to be a mortgage. There is no manner of doubt that Ex. In such an event it is idle to contend that document Ex. 1 was not intended to be a mortgage. There is no manner of doubt that Ex. 1 was intended to be a mortgage which was an anomalous one being a combination of a usufructuary mortgage and a simple mortgage in that over and above transferring the usufruct to the mortgagee the mortgagor had undertaken personal liability as well for the repayment of the mortgage debt. In such a case, therefore, it cannot be inferred that the intention of the parties was to create a charge on the property and not to have a mortgage. In Maharaj Ram Narayan vs. Adhindra(5), their Lordships observed — "The deed sued on provided that the principal money together with interest was to be realised as provided by the deed, by and out of the rents and the cesses of certain Mokurari villages, which were mortgaged with possession and the schedule to the deed stated the time and manner in which principal and interest were to be realised. On the determination of the period of mortgage it was contemplated that the debt with interest would be satisfied and a balance of some amount would be payable by the mortgagee to the mortgagor. The mortgagee remained in possession of the property for the period. In a suit upon the bond which was unattested praying for a mortgage decree by way of sale, or simple money decree in the alternative, for the sums alleged to be due thereunder. Held, that the document did not create any charge under sec. 100 of the Transfer of Property Act, 1882, but that it was an usufructuary mortgage, which could not be enforced as a mortgage for want of attestation. Even if it could be regarded as an enforceable usufructuary mortgage, by reason of sec. 67(a) no suit could be instituted for a sale based upon it. On a construction of the document. Held, that the mortgagor did not intend to be personally liable to repay any portion of the mortgage money except to the extent and in one or other of the events mentioned in the bond." 21. Then in Pran Nath Sarkar vs. Jadu Nath Saha(6) the learned Judges observed that where a transaction evidenced by a document was a mortgage as defined by sec. Then in Pran Nath Sarkar vs. Jadu Nath Saha(6) the learned Judges observed that where a transaction evidenced by a document was a mortgage as defined by sec. 58 of the Transfer of Property Act, but the document was not attested by two witnesses as required by sec. 59 of the Act, it could not be taken to operate as a charge under sec. 100 of the Act. 22. The same thing has been said in a number of other cases, but I need not encumber this judgment by enumerating them all. 23. On the other side learned counsel for the appellants referred me to Charnock Collieries Company Ltd. vs. Bholanath Dhar(7). In that case a document purporting to be a mortgage was executed on behalf of a Company. It was found that it was beyond the authority of the person executing it and in the circumstance it was taken to be a charge on it. Having considered this case, I am of the view that the preponderance of the case law is that on the failure of the mortgage for want of proper attestation it cannot be regarded as a valid charge if the underlying purpose or object of the document was to create a mortgage. 24. Therefore, I am unable to accept the alternative argument of the learned counsel. 25. The judgment of the learned Additional District Judge is, therefore, correct, though on one point regarding the Sub Registrar being treated as an attesting witness I have taken a different view. 26. The result is that the appeal fails and is hereby dismissed, but in the circumstances the parties are left to bear their costs.