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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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