Full Judgment Text
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PETITIONER:
BRIJ RAJ SINGH (DEAD) BY L. RS. & ORS.
Vs.
RESPONDENT:
SEWAK RAM & ANR.
DATE OF JUDGMENT: 22/04/1999
BENCH:
K. Venkataswami. & A.P. Misra.
JUDGMENT:
K. Venkataswami, J.
This appeal by special leave is preferred against the judgment of
the Punjab and Haryana High Court in R.S.A. No. 1807/71 dated
February 3, 1982. The appellants are the legl representatives of
the deceased plaintiff. For the sake of convenience, the parties
are referred hereinafter as ’plaintiff’ and ’defendants’. The
second defendant, a proforma party, is the father of the first
defendant.
The plaintiff filed Suit No. 722/67 for recovery of possession
of the suit site from the defendants. According to the averments
in the plaint, the suit site was acquired by the plaintiff under
a gift deed dated 18.1.1961 registered on 9.2.1961 and marked as
Exbt. PW- 6/1 in the suit. One Kanwar Chander Raj Saran Singh
was the donor under the said gift deed. The plaintiff before
filing the present suit for possession preferred an application
for ejectment of the defendants before the Rent Controller
alleging that the first defendant who was a tenant under him
denied the title. The learned Rent Controller by his order dated
16.1.1967 held that the first defendant was a tenant under the
plaintiff and further held that the first defendant was liable to
be ejected from the suit site. However on appeal the appellate
authority by its order dated 3.6.1967 reversed the finding of the
learned Rent Controller and held that the plaintiff has not
proved that there existed a landlord and tenant relationship.
Accordingly, while allowing the appeal, the appellate authority
dismissed the application for ejectment preferred by the
plaintiff.
In the light of the order of the appellate authority, the
plaintiff filed the present suit for possession on the basis of
the said gift deed. The plaintiff appears to have examined 13
witnesses on his side and placed a number of documents to support
his claim for possession.
The defendants resisted the suit contending that they are the
owners, that Kanwar Chander Raj Saran Singh had no connection
whatsoever with the suit property and, therefore, had no right to
make the gift deed in favour of the plaintiff. The gift deed, if
any, he alleged, must be a devise by the plaintiff to grab the
defendants’ property. The defendants also denied that the
plaintiff was the landlord of the suit site.
Defendants appear to have examined three witnesses.
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However, the defendants have not filed any documents to
substantiate their claim.
The trial court on the bais of the pleadings framed the
following issues:-
i) Whether the plaintiff is the owner of the property in suit as
alleged.
ii) Whether the suit is within time.
iii) Relief.
The trial court on the basis of the oral and documentary evidence
found that the plaintiff derived title to the suit property under
the gift deed dated 18.1.1961 and that the suit was in time.
Accordingly a deeree for possession was granted on 15.1.1971 by
the trial court.
The defendants aggrieved by the decree for possession granted by
the trial court preferred an appeal to the Senior Sub-judge,
Gurgaon. Before the first appellate court for the first time the
Defendants raised an objection that the gift deed has not been
duly proved in accordance with the provisions of Transfer of
Property Act and hence cannot be taken into account to confer
title on the plaintiff. The lower appellate court, for the
reasons stated in its judgment, held that the gift deed was not
duly proved and hence the plaintiff cannot be held to be the
owner of the suit site. On that ground the lower appellate court
allowed the appeal and dismissed the suit preferred by the
plaintiff. The lower appellate court, however, held that the
suit was in time and the original owner of the suit site was
Kanwar Chander Raj Saran Singh.
The High Court in the second appeal preferred by the plaintiff,
after noticing that no specific objection regarding execution or
attestation of the gift deed was taken by the defendants,
confirmed the judgment of the lower appellate court, Hence, the
present appeal by special leave.
Mr. Shanti Bhushan, learned Senior Counsel for the Plaintiff now
represented by L.Rs. submitted that the lower appellate court
and the High Court went wrong in allowing the defendants to raise
an objection regarding execution or attestation of the gift deed
as no such objection was specifically raised in the written
statement nor in the cross-examination of the plaintiff’s
witnesses nor even in the arguments before the trial court.
According to the learned Senior Counsel, the gift deed was duly
attested by two witnesses on the first page of the document which
was not noticed by the lower appellate court and the High Court.
The attestation was duly proved by PW-6 who has subscribed his
signatures in the gift deed at three places in three different
capacities, namely, as scribe, as attesting witness and as
identifying witness before the Registrar. He has spoken about
his role as stated above in his evidence which was not challenged
by the defendants in the cross-examination. In may event,
according to the learned Senior Counsel, the examination of one
attesting witness satisfies the requirement of section 68 of the
Evidence Act. He also submitted that even one attesting witness
need not have been examined in view of proviso to Section 68 of
Evidence Act as admittedly no specific challenge was raised
either in the written statement or before the trial court even
subseuent to the filing of the written statement. It is the
further contention of the learned Senior Counsel that having
regard to the recitals in the gift deed to the effect that the
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deed preceded by an oral gift coupled with the possession (long
before the application of the provisions of the Transfer of
Property Act to Punjab and Haryana), the compliance of section
123 of the Transfer of Property Act was not required. The
learned Senior Counsel for the plaintiff cited a number of
authorities to support these submission.
Mr. M.L. Verma, learned Senior Counsel appearing for the
defendants, contending contra, submitted that the presentation of
the document, namely, gift deed by power of attorney was
defective inasmuch as that power was not produced. At this stage
we must state that after perusing the original gift deed (PW-6/1)
in the court and in particular the endorsement of the
Sub-Registrar on the second page regarding the productionof
registered deed of power of attorney, the learned Senior Counsel
did not pursue this contention. He also submitted that an
identifying witness cannot be treated as an attesting witness.
In support of that, he cited an authority of this Court. Again
this point does not arise for cnsideration in view of the fact
that it is not the case of the plaintiff before us that the
identifying witnesses are to be treated as attesting witnesses.
We may point out at this stage that such an argument no doubt was
placed before the lower appellate court and the High Court on
behalf of the plaintiff. Before us such argument was not
advanced and, therefore, that question does not arise. Mr.
Verma, learned Senior Counsel for the defendants, submitted that
the point regarding execution or attestation though raised for
the first time before the appellate court is permissible as it
was only a question of law. Regarding what amounts to a valid
attestation in a registered document, Mr. Verma, learned Senior
Counsel, cited a number of authorities and submitted that the
lower appellate court and the High Court had correctly decided
the issue by holding that the gift deed was not proved and
consequently the plaintiff did not derive any title to the suit
site. He also contended that notwithstanding the finding of the
courts below that the owner of the suit site was Kanwar Chander
Raj Saran Singh, the defendants cannot be dispossessed except by
the true owner. Lastly, he contended that mere marking of
exhibit (gift deed) does not amount to proof.
In the light of the contentions raised before us the issue that
arises for consideration is whether the lower appellate court and
the High Court were right in law in allowing the defendants to
challenge the gift deed based on want of strict compliance of
Section 3 and 123 of the Transfer of Property Act even though no
such plea was raised in Written Statement, no issue was therefore
framed and no argument was advanced in the trial court. Apart
from the above question of law, we have to see whether the lower
appellate court ad the High Court correctly appreciated the facts
and properly looked into the gift deed in issue.
After carefully going through the judgments of all the three
courts below and after perusing the original gift deed (Exbt.
PW6/1), we find that the lower appellate court and the High Court
had not looked into the document carefully before giving their
findings. The lower appellate court in the course of the
judgment in more than one place has stated that the gift deed was
executed by the power of attorney which is a wrong statement.
The lower court has stated as follows:-
"The gift deed is said to have been executed by one Shri
Janardhan Parshad as an attorney of Kn. Chander Raj Saran Singh.
It was pointed by Shri T.C. Jain that unless the plaintiff
produced the power of attorney of Janardhan Parshad Sharma, it
could not be held executed by a person duly authorised to execute
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the same.
Again the lower appellate court observed as follows :-
"The objection urged by Shri T.C. Jain regarding the
admissibility of the gift deed must, therefore, prevail on the
ground that the gift deed has not been duly got proved in
accordance with the provisions of Section 123 of the T.P.Act and
secondly it has also not been proved that the donor duly
authorised Janardhan Dass to execute the same as a general
attorney in favour of the plaintiff.
While negativing a contention put forward on behalf of the
Plaintiff, the lower appellate court observed as follows:-
"...it was necessary on the part of the plaintiff to have proved
by positive evidence that Janardhan Dass Sharma was duly
authorised to execute the gift deed in favour of the plaintiffy
by Kn. Chander Raj Saran Singh."
It is nobody’s case that the gift deed was executed by the power
of attorney. A persual of the gift deed clearly shows that
Kanwar Chander Raj Saran Singh admittedly owner of the property
has executed the gift deed and the power of attorney, namely,
Janardhan Prashad Sharma was only authorized to present the
document for registration. The lower appellate court without
looking into the document proceeded as if the execution of the
document was by a power of attorney and in the absence of a power
to execute the document, the gift was not proved. Further, the
lower appellate court in the course of the judgment has held as
follows:-
"An attesting witness must be a person who signed the document
purporting to do so as an attesting witness. I have examined the
said document and find that this document has been only attested
by one witness namely Sobha Ram. The name of Ram Saran Dass
appears in the said document as that of a scribe and he is only
an identifying witness who has identified the execution made
before the Sub-Registrar. Thus, it is evident that the gift deed
which was the basis of the suit and which alone could confer the
title of ownership on the plaintiff has not been proved in
accordance with the provisions of Section 123 of the Transfer of
property Act and in view of the same the Trial Court was not
justified in placing relience on this document."
Sobha Ram was not the attesting witness for the gift deed. He
was only an identifying witness before the Registrar as seen at
page 2 of the original gift deed. The lower appellate court has
totally ingnored the categorical evidence of pw 6 stating that he
has also signed as witness. Section 3 of of the Transfer of
Property Act specifically states that no particular form need be
followed in the matter of attestation. It can be at first, as in
this case, or at last page.
The High Court, however, has rightly noticed that the gift deed
was executed by Kanwar Chander Raj Saran Singh. However, the
High Court held that the gift deed has not been duly attested as
required under Section 123 of the Transfer of Property Act. The
High Court in the course of judgment observed as follows:-
From the persual of the gift deed, it is quite evident that this
was executed by Kanwar Chander Raj Saran Singh on 18.1.1961. No
one has signed as a witness to the document. The scribe Ram
Saran Dass has written "dated 18th January, 1961 Bakalam Ram
Saran Dass". Later on, on 9th of February, 1961, the said
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document was presented for registration by one Janardhan Sharma
who claimed himself to be the Mokhtiar-a-Aam of donor Kanwar
Chander Raj Saran Singh. The necessary power of attorney in his
favour dated 18th of February, 1953 was also produced before the
Sub-Registrar by Ram Saran Dass - the scribe and one Shabha Ram.
According to the learned counsel for the appellant, since
Janardhan Sharma, the Mukhtiar-a-Aam of the donor Kanwar Chander
Raj Saran Singh admitted the execution of the document before the
Sub-Registrar and Ram Saran Dass, the scribe and Shabha Ram
attested the same before Sub-Registrar, it will amount tto
attestation as required under section 123 of the Transfer of
Property Act. In support of this contention, he relied upon
Girja Datt Singh Vs. Gangotri Datt Singh (AIR 1955 S.C. 346)
and Narain Singh Vs. Parsa Singh alias Parsu (1971 C.L.J. 195).
L.....I..........................................................J
After hearing the learned counsel for the parties at a great
length, as observed earlier, it appears that before the trial
Court no such objection was taken specifically either at the time
of admission of the document Exhibit PW6/1 or at the time of the
arguments. It was only at the appellate stage that this objection
was taken on behalf of the defendant that the gift deed on the
basis of which the plaintiff claimed himself to be owner of the
site in dispute, is not a valid document as it was never attested
by any of the witnesses as required under the Transfer of Property
Act. This objection prevailed with the lower appellate court.
The argument of the learned counsel for the appellant that the
admission made by Janardhan Sharma, Mukhtiar-a-Aam of the donor
and signed by the scribe Ram Saran Dass and Shabha Ram before the
sub-Registrar, will amount to attestation, has no merit. The
document was required to be attested at the time when it was
actually executed on 18.1.1961 by Kanwar Chander Raj Saran Singh.
Since no one attested the document at that time, the subsequent
signatures of the scribe and Shabha Ram who identified the
Mukhtiar-a-Aam Janardhan Sharma before the Sub-Registrar, could
not fill up the lacuna. Under Sub-Section (2) of Section 35 of
the Registration Act, the registering officer may, in order to
satisfy himself that the persons appearing before him are the
persons they represent themselves to be or for any other purpose
contemplated by this Act, examine any one present in his office.
Thus Ram Saran Dass and Shabha Ram only identified the
Mukhtiar-a-Aam Janardhan Sharma in order to satisfy the
registering officer. In Timmavva Dundappa Budibal vs. Channava
Appaya Kanasgeri (AIR (35) 1948 Bombay 322) it has been held that
signatures made by the Sub-Registrar while he made endorsement on
the document admitting it to registration and the signatures of
the identifying witnesses made by them when they identified the
executant before the Sub-Registrar cannot be regarded as the
signatures of attesting witnesses. Moreover, at the time of
registration the donor himself did not appear. It was only his
Mukhtiar-a-Aam Janardhan Sharma who presented the same for
registration on his behalf. The authorities relied upon by the
learned counsel for the appellant, are not at all applicable to
the factsof the present case and are clearly distinguishable.
Since, there was no attestation witness at the time of the
execution of the document of 18th of January, 1961, the lower
appellate court rightly came to the conclusion that the gift deed,
if is taken away as nt duly executed, the plaintiff cannot be held
to be the owner of the suit land because he claimed his title on
the basis of the gift deed alone.
At this stage, let us extract the relevant section in
Transfer of Property Act and Evidence Act.
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Transfer of Property Act:-
S.3 In this Act, unless there is something repugnant in the
subject or context, -
"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 otther person sign the instrument in
the presence and by the direction of the executant, or has
received from the executant a personal acknowledgement 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. [only relevant
portion is set out]
"S.123 For the purpose of making a gift of immoveable
property, the transfer must be effected by a registered instrument
by or on behalf of the donor, and attested by at least two
witnesses.
For the pourpose of making a gift of moveable property, the
transfer may be effected either by a registered instrument signed
as aforesaid or by delivery.
Such deliverry may be made in the same way as goods sold may
be delivered."
The Indian Evidence Act
"S. 68. Proof of executing of document required by law to
be attested - If a document is required by law to be attested, it
shall not be used as evidence untile one attesting witness at
least has been challed 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 atesting
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 (16 of 1908), unless its
execution by the person by whom it purports to have been executed
is specifically denied.
It is common ground that the defendants have not raised any
objection, leave alone specific objection as to the validity of
execution/attestation of/in gift deed. Naturally, there was no
issue on this aspect. Even the witness (PW 6) was not
cross-examined from this angle. Hence we are unable to sustain
the contention of Mr. Verma that this being a pure question of
law can be raised at the appellate stage. This is a mixed
question of fact and law. Proviso to section 68 of the Evidence
Act dispenses with the necessity of calling an attesting witness
in proof of any document, except a will, which has been registered
in accordance with the provision of the Indian Registration Act
when there is no specific denial by the party against whom the
document is relied upon.
In this context, we may usefully refer to the decision cited
at the bar.
In Venkata Reddi vs. Muthu Pambulu (AIR 1920 Madras 588), a
Division Bench of the High Court had occasion to consider the
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scope of Section 68 of the Evidence Act. After setting out
Section 68 the Court observed as follows :-
"I think the implication from the language of the section is
that, if one attesting witness has been called (if there be an
attesting witness alive, etc.) then the document can be accepted
by the court (of court, if it believes his evidence) as evidenciny
a mortgage transaction as the necessary evidence insisted upon by
S. 68, Evidence Act, of document required by law to be attested
has been given. In other words, the document can, on that
evidence, be treated by the court as having created the charge on
immovable property which it purports to create. S. 68 requires
that only one attesting witness (if alive) should be called for
the purpose of proving execution subject, of course, to the
condition that witness is subject to the process of the Court and
capable of giving evidence. The lower appellate Court however,
held that either two attesting witnesses should be called when two
are alive and that, even assuming that one only need be called, he
should, at least, be made tto prove that another (or the other)
attesting witness besides himself also saw the execution. Hence
it held that the plaint document was not properly proved as a
mortgage document as one only of the attesting witnesses was
called and he merely proved its execution by defendant 1 and the
attestation by himself (that witness) and he was not asked about
any other attestor having seen the execution".
While upsetting the above view of the lower appellate court,
the learned Judges held as follows:
"The fact that the Evidence Act is ten years older that the
Transfer of Property Act has no relevancy in the consideration of
this question. I might add that S. 69, Evidence Act, says that,
if no such attesting witness can be found, proof that the
attestation of one attesting witness at least is in the
hand-writing of that witness and that the signature of the person
executing the document is in the handwriting of that person is
proof which might be accepted as sufficient by the Court. If S.
59, Transfer of Property Act, is interpreted as we are invited to
interpret it as adding another requisite (even in the
circumstances contemplated by section 69, Evidence Act, that is
even where no attesting witness is alive or could be found),
namely direct proof that two attesting witnesses saw the
execution, it would be practically impossible in most such cases
to adduce evidence of third persons about attestation by two
witnesses and many old mortgage transactions could never be proved
at all as such. Documents, say about 28 years old, where it is
not at all unlikely that the two attestors and the mortgagee have
died (life not being too long in this country), cannot be proved
at all to be valid documents unless some third persons who did not
attest but merely happened to be present at the execution and
attestation (a very unlikely contingency) happened to be alive,
remembered what happened long ago of a transaction at which they
were casually present and could therefore be called to prove the
attestation by two attestors. If the argument is pushed to its
logical limit, then even S. 90, Evidence Act, which says that a
document purporting to be 30 years old, can be presumed to have
been validly executed and attested, must be deemed to have been
overruled by the privisions of section 59 of the later Transfer of
Property Act. No doubt where the provisions of Section 68,
Evidence Act, have been complied with by calling the attesting
witness to prove the execution by the mortgagor, and the
attestation by himself (the witness) and the document may
therefore be accepted by the court as prima facie sufficiently
proved to be a valid mortgage, that prima facie proof can be
rebutted by proof on the other side, that the other witness or
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witnesses who has or have also apparently attestated document did
not really see its execution and that the document therefore did
not comply with the requirements of section 59, Act 4 of 1882."
In lachman Singh Vs. Surendra Bahadur (AIR 1932 Allahabad
527) a Full Bench of the High Court considered the issue and
answered as follows:-
"Now let us consider the merits of the arguments. for the
appellants, it is argued that by compliance with the privision of
Ss. 68, 69 and 71, Evidence Act, a party succeeds only in making
the mortgage-deed, or any other deed, like a ded of gift reuired
to be attested by at least two witnesses, admissible in evidence
but in order to be able to show that the document is a valid deed
of mortgage or a valid deed of gift, he must also prove further
that it was attested by two witnesses. It is conceded on behalf
of the respondents and indeed the matter cannot be disputed that
where the validity of the deed propounded either as a deed of
mortgage or as a deed of gift is specifically in question, on the
ground whether or not, the requirements of Ss 59 and 123, Transfer
of Property Act, had been complied with, the party relying on the
deed must prove that it had been attested by at least two
attesting witnesses. But the question is where the mere execution
of a document has to be proved either because of the case being
ex-parte or because of a mere denial of the execution, whether it
would still be necessary to prove that the document was attested
by two attesting witnesses."
"Where a mortgagee sues to enforce his mortgage and the
execution and attestation of the deed are not admitted, the
mortgagee need prove only this much that the morttgagor signed the
document in the presence of an attesting witness and one man
attested the document provided the document on the face of it
bears the attestation of more than one person; but if the
validity of the mortgage be specifically denied, in the sense that
the document did not affect a mortgage in law then it must be
proved by the mortgagee that the mortgage deed was attested by at
least two witnesses."
Again in Jhillar Rai vs. Rajnarain Rai (AIR 1935 Allahabad
781) the High Court held as follows :
"There has been a subsidiary argument that the plaintiffs
cannot claim to be co-shares, because the mortgage deed has not
been proved. The argument is based on the provision of S.68,
Evidence Act. It appears that the execution of the mortgage was
proved, but not by the production of marginal witness. Under S.68
as it now runs, it is not necessary to prove or to produce a
marginal witness unless the mortgage is specifically denied. It
is obvious that there would be no necessity to prove the deed at
all if it was admitted and consequently the section contemplates a
distinction between the position where execution is not admitted
and a position where execution is specifically denied. In the
present case the plaintiffs in the first paragraph of the plaint
stated that they were mortgagees under the deed dated 23rd
September, 1929, and that they had ben in possession of the plots
in question. The defendants said in their written statement that
they did not admit this paragraph. But it is clear from the
additional pleas that what they were questioning really was not
the execution of the deed but the fact of possession. No issue
was framed clearly on the question of execution. In these
circumstances it cannot be held that the execution of the mortgage
was specifically denied. The mortgage was therefore sufficiently
proved."
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We do not want to add the citation except to refer a
judgment of the Guwahati High Court in Dhiren Bailung vs. Bhutuki
& Ors. (AIR 1972 Guwahati 44), wherein the court held as
follows:-
"All that Section 68 demands before a document requiring
attestation can be used as evidence is that one attesting witness
at least should be called "for the purpose of proving its
execution". It has been stated above that one attesting witness
was called in the present case and he testified that Sashi and
Paniram had executed the mortgage deed Ex. 1 in his presence by
placing their signatures on it and that he had attested the
document. Therefore, the requirements of Section 68 were
evidently satisfied. However, the two courts below were of the
opinion that it was incumbent upon the plaintiff to establish
before he could succeed in that suit, the attestation of the deed
by two witnesses, as enjoined by section 59 of Transfer of
Property Act, in the manner required by section 3 thereof where
the expression "attested" is defined. I find it difficult to
endorse that opinion. AIR 1932 All. 527 (FB) Lachman Singh vs.
Surendra Bahadur, is an authority for the propositions that
Sections 68 & 69 of the Evidence Act "make a document which is
attested admissible in evidence if the requirements of those
sections are complied with" and that "if the documents become
admissible in evidence they become admissible to prove what they
contain. That is to say, they would become admissible to prove
whether a mortgage had been executed or a gift had been made".
There seems to be no warrant for an argument, the Full Bench
observed that a deed may be marely admissible and yet may be
incapable of being read as a document of the kind which it
professes to be. The Full Bench clinched the issue by stating
further that to make a mortgage deed or a gift deed admissible in
evidence as a deed of mortgage or gift, as the case may be, it is
enough to comply with the provisions of section 68 or S. 69 of
the Evidence Act. However, it was added that if the question
raised is whether the document did create a mortgage or gift or
not, it must be proved that the requirements of law as contained
in Sections 59 and 123, Transfer of Property Act, have been
complied with. I respectfully agree with these observations of
the Full Bench. Therefore, the precise question that falls for
determination in the present appeal is whether, on the pleadings
of the parties, there arises a question whether the deed Ext. 1
does or does not create a mortgage."
"To sum up, I hold that the defendants had denied only the
execution of the mortgage deed, that they had not challenged its
due attestation, that the legality of the mortgage deed was
assailed on the specific ground that Sashi and Paniram had no
exclusive right to mortgage the land in dispute, and that the
parties went to trial only on the specific allegations adopted by
them in their written pleadings. I hold further that in the
context of the parties, pleadings the plaintiff was called upon to
prove only the execution of the mortgage deed, that the execution
is proved by the testimony of Harakanta Duara, an attesting
witness, and plaintiff’s father Tularam, and that the testimony of
Harakanta Duara constitutes enough of compliance with the
statutory requirements set out in the body of section 68. Hence
the mortgage pleaded by the plaintiff is proved beyond doubt."
We are of the view that the above extracts from the
judgments of the various High Courts do reflect the correct
position in law. In the case on hand PW 6 has categorically
stated that he has signed as scribe, signed as witness and signed
as identifying witness. We also find his signatures at three
places. Nothing was elicited from this witness to disbelieve his
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statement in Chief Examination. It is not denied that the deed
was registered as per the Indian Registration Act. Therefore even
on merits the appellant has established the due execution and
attestation of the gift deed at the first page by the side of
signatures of the donor, two witnesses have subscribed their
signatures. We, therefore, hold that the lower appellate court
and the High Court went wrong in allowing the defendants to raise
the plea of non-compliance of Section 123 of the Transfer of
Property Act and in holding that the gift deed was not proved.
So far as the case law cited by Mr. Verma, learned Senior
Counsel for the defendants, is concerned, we find that it may not
be necessary to refer the same so far as they related to the
points that identifying witness cannot be an attesting witness;
that mere marking of exhibit does not amount to prove and that no
one except the ture owner can discharge possession as there is no
dispute on these points.
As regards the cases cited on the issue of attestation, we
find that Roda Framroze Mody vs. Kanta Varjiyandas Saraiya (AIR
1946 Bombay 12), and Vishnu Ramkrishna and Ors. vs. Nathu Vithal
and Ors. (AIR 1949 Bombay 266) relate to will and as such may not
be apposite to the case o hand concerning gift deed. In Sarkar
Barnard & Co. vs. Alok Manjary Kuari & Anr. (AIR 1925 Privy
Council 89), Abinash Chandra Bidyanidhi Bhattacharjee vs.
Dasarath Malo & Ors. (AIR 1929 Calcutta 123), and sundrabai Sonba
Tendulkar vs. Ramabai Jayaram (AIR 1947 Bombay 396) the question
of failure to raise specific denial regarding
execution/attestation and the consequences thereof did not arise
and, therefore, those cases are not quite relevant. In N.
ramaswamy Padayachi vs. C. Ramaswami Padayachi & Ors. (AIR 1975
Madras 88) factually specific denial was raised and in that
context the judgment was delivered on the scope of Section 123 of
Transfer of Property Act. In Balappa Tippanna, vs. Asanqappa
Mallappa and Another (AIR 1960 Mysore 234), the Court held as
follows :-
"The net effect of S. 68 is that if the execution of a
document of gift is specifically denied, then an attesting witness
must be called to prove it. If, however, such execution is not
specifically denied, then it would not be necessary to call an
attesting witness to prove the same. But the document all the
same will have to be proved. The effect of the proviso is that
the due execution and attestation of the gift deed will have to be
proved, although it may be proved by calling a person other than
an attesting witness."
Here again there is no quarrel on the proposition set out
above.
Now coming to the facts, the High Court is not right in
proceeding that gift deed was not attested by any of the witnesses
as required under the Transfer of Property Act. As noticed
earlier the lower appellate court rested its conclusion about the
gift deed on the worng assumption that the deed itself was
executed by a power of attorney and in the absence of such power
of attorney, and as only the witness attesting the deed, the
execution of gift cannot be upheld. Apart from that, we have
perused the original document and we find that two witnesses,
namely, Ram Chander Sharma and Ram Saran Dass Sharma, have signed
on the first page of the document along side the signature of
Kanwar Chander Raj Saran Singh. We do not know how this had
escaped the attention of the courts below. At this stage it is
necessary to point out that Ram Saran Das Sharma who was examined
as PW-6 has stated as follows. The entire deposition is given
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
below :-
"I know Kanwar Chander Raj Saran singh son of Rao Brijraj
Singh. I was employed with them for fifteen years. I have seen
him, reading, writing and signing. I can identify his signatures.
I am the scribe of the gift deed (Hibbanama) Ex. PW6/1. I had
scribed the same correctly on the instructions of Chander Raj
Singh. I had read it over to him and after accepting the same as
correct, he had signed in my presence. I have also signed as a
witness. I know Shri Janardhan Sharma. He was manager and a
general power of attorney. He had the right to execute the sale.
I also identify the signatures of Janardhan."
(Emphasis supplied)
Cross-examination
"I cannot tell the date of the deed of the general power of
attorney (mukhtiarnama). I am not in possession of a copy now.
It is incorrect to suggest that I was not present at the time of
registration. My signatures are also there as a scribe. Gift
deed (hibbanama) was presented by Janardhan. There has been a
partition between Chander Raj Singh and his son, but I cannot tell
the year precisely, may be it took place in the year 1960-61. It
does not bear my signature."
It is seen from the above that Ram Charan Dass sharma has
categorically stated that he has signed the document as a witness
apart from the fact that he has also scribed and signed as
identifying witness. We found three signatures of Ram Saran
Sharma at different place in different capacities in the original
gift deed.
On the important point regarding attestation there was no
cross-examination presumably this was not raised and hence ws not
an issue. This being the position, we are unable to comprehend
how the lower appellate court and the High Court gave the findings
against the plaintiff as noted above.
The gift deed was executed by the original owner and
presented for registration by a duly authorised power of attorney
and the document was duly attested by 2 witnesses, out of whom one
was examined to prove the deed and nothing more is required to
satisfy the requirements of Section 123 of Transfer of Property
Act, particularly when no specific denial was taken to the
execution or attestation of the gift deed in the written statement
or even subsequently before the trial court.
In the result, we set aside the judgment of the lower
appellate court as affimed by the High Court and resotre the
decree of the trial court. The appeal is allowed with costs,
which we quantify at Rs. 5,000/-.
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