Singh & Ors Vs. Sewak Ram & ANR  INSC 162 (22 April 1999)
& A.P. Misra. K. Venkataswami, J.
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
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.
while allowing the appeal, the appellate authority dismissed the application
for ejectment preferred by the plaintiff.
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.
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.
appear to have examined three witnesses.
the defendants have not filed any documents to substantiate their claim.
trial court on the bais of the pleadings framed the following issues:-
Whether the plaintiff is the owner of the property in suit as alleged.
Whether the suit is within time.
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.
a deeree for possession was granted on 15.1.1971 by the trial court.
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.
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.
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.
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.
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 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.
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.
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
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.
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
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.
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
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 the same.
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.
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.
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 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.
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
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.
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.
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.
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.
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.
this stage, let us extract the relevant section in Transfer of Property Act and
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
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.
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 :
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
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.
this context, we may usefully refer to the decision cited at the bar.
Reddi vs. Muthu Pambulu (AIR 1920 Madras 588), a Division Bench of the High
Court had occasion to consider the 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".
upsetting the above view of the lower appellate court, the learned Judges held
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 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." 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 :
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." 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".
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 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.
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
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.
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.
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 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.
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.
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.
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.
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.
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.
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/-.