Holding

The gift deed was duly executed and attested; the objection could not be raised for the first time on appeal, and the lower courts erred in rejecting the deed.

Summary

The plaintiff, legal representatives of the deceased Brij Raj Singh, sued the defendants for possession of land on the basis of a registered gift deed dated 18‑Jan‑1961, executed by the donor Kanwar Chander Raj Saran Singh and presented for registration by a duly authorised attorney. The trial court held the deed valid and decreed possession in favour of the plaintiff. On appeal, the defendants for the first time alleged that the deed was not duly proved under Section 123 of the Transfer of Property Act because it was not properly attested, and the lower appellate court and the Punjab & Haryana High Court upheld that objection, reversing the decree. The Supreme Court examined whether such an objection could be raised at the appellate stage when no specific denial was made in the written statement or at trial, and whether the deed complied with the statutory requirements of execution and attestation. It held that the deed was validly executed and attested by two witnesses, that the objection was a mixed question of fact and law and could not be raised for the first time on appeal, and that the lower courts erred. Consequently, the Supreme Court set aside the appellate judgments and restored the trial court decree.

Issues considered

The validity of the gift deed under Section 123 of the Transfer of Property Act, 1882.
Whether the objection to execution/attestation of the deed could be raised for the first time at the appellate stage.
The applicability of Section 68 of the Evidence Act, 1872 to the proof of a registered gift deed.

Legislation cited

Indian Evidence Act, 1872s. 68, s. 69, s. 71
Registration Act, 1908s. 35(2)
Transfer of Property Act, 1882s. 123, s. 3

Subjects

gift deedTransfer of Property ActSection 123attestationEvidence ActSection 68registrationmixed question of fact and lawappellate procedurepossession suit

Judgment

BRIJ RAJ SINGH (DEAD) BY LRS. AND ORS. A
v.
SEW AK RAM AND ANR.

APRIL 22, 1999

[K. VENKATASWAMI AND A.P. MISRA, JJ.] B
./
Transfer of Property Act. 1882-Ss. 123 and 3-Gift deed-Executed by
the original owner-Presented for registration by a duly authorised power
of attorney-Duly attested by two witnesses and proved by one of them-
Deed registered as per Registration Act-Held, the requirements of the Act C
fully complied with-Lower appellate Court and High Court not justified in
holding that the gift deed was not proved

Evidence Act, 1872-S. 68-Gift deed-Executed by the original owner
in favour of appellants-Recovery suit against respondent-tenants-No
objection regarding execution/attestation raised in the written statement or D
in the cross examination or even before Trial Court-Suit decreed holding
that the title was derived under a valid gift deed-Plea raised for the first
time before/ Jhe appellate Court that the gift deed was not duly proved-
A//owed by both the appellate Court and High Court-Validity of-Held, the
objection regarding validity of execution/attestation of gift deed is a mixed E
question of fact and /aw-Thus, cannot be raised for the first time at the
appellate stage.

Appellant filed a recovery suit against the respondent-tenants on the
basis of a gift deed. Respondents contested the suit on the ground that they
were the owners, and the donor had no right in the suit property to make F
a gift deed in favour of appellant. The Trial Court decreeu the suit holding
that the appellant had derived title to the property under a valid gift deed.
Aggrieved, the respondents filed an appeal and for the first time raised an
objection that the gift deed was not duly proved in accordance with the
provisions of the Act and hence cannot confer title on the appellants. The G
Lower Appellate Court accepting the said objection allowed the appeal, which
was also confirmed by High Court. Hence the present appeal.

The appellant eontended that the lower appeJlate 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 H
779
780 SUPREME COURT REPORTS [1999) 2 S.C.R.

A raised in the written statement not in the cross-examination of the plaintiffs
witnesses nor even in the arguments before the trial court; 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 d~ly proved by PW-6 who has subscribed his signatures in the gift deed
B at three places in three different capacities namely, as scribe, as attesting
witness and as identifying witness before the Registrar.

The contention of the respondent was 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 and thus the Courts below were
C justified in holding that the gift deed was not duly proved.

Allowing the appeal, this Court

HELD : 1.1. The gift deed was executed by the original owner and
presented for registration by a duly authorised power of attorney and the
D document was duly attested by two 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, 1882 particularly when no
specific denial was taken to the execution or attestation of the gift deed in
the written statement or even before the Trial Court. Thus, the lower appellate
Court and High Court were not justified in allowing the defendants to raise
E the plea of non-compliance of section 123 of the Act and in holding that the
gift deed was not proved. [796-G-H; 794-GJ

1.2. The High Court erred in proceeding that the gift deed was not
attested by any of the witnesses as required under the Act. PW-6 has
categorically stated that he has signed as scribe, as witness and as identifying
F witness. His signatures are found 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. On the
original gift deed at the first page by the side of signatures of the donor, two
witnesses have subscribed their signatures. Section 3 of the Act specifically
G states that no particular form need to be followed in the matter of attestation.
It can be at first as in this case or at last page. Therefore, even on merits
the appellant has established the due execution and attestation of the gift
deed according to law. (794-E-F)

2. Objection to the validity of execution/attestation of gift deed is a
H mixed question of fact and law. Proviso to Section 68 of the Evidence Act
B.R. SINGH v. SEW AK RAM 781
dispenses with the necessity of calling an attesting witness in proof of any A
document, except a will, which has been registered in accordance with the
provisions of the Indian Registration Act when there is no specific denial by
the party against whom the document is relied upon. Thus the lower appellate
court and High Court erred in allowing the defendants to challenge the gift
deed for strict non-compliance of section 38 and 123 of the Act, even though B
no plea was raised in the written statement, no issue was therefore, framed
and no argument was advanced in Trial Court. [789-F-H; 785-C-D]

Sarkar Barnard & Co. v. Alock Manjary Kuari & Anr., AIR (1925)
Privy Council 89, held inapplicable.

Roda Framroza Mody v. Kanta Varjivandas Saraiya, AIR (1946) Born. C
12; Vishnu Ramkrishna & Ors. v. Naihu Vithal & Ors., AIR (1949) Born. 226
and N. Ramaswamy Padayachi v. C. Ramaswami Padayachi & Ors., AIR
(1975) Mad. 88, distinguished.

Venkata Reddy v. Muthu Pambulu, AIR (1920) Mad. 588; Lachman D
Singh v. Surendra Bahadur, AIR (1932) All. 527; Jhillar Rai v. Rajnarain
Rai, AIR (1935) All. 781; Dhiran Bailung v. Bhutuki & Ors., AIR (1972)
Guwahati 44 and Balappa Tippanna v. Asangappa Mallappa & Anr., AIR
(1960) Mysore 234, approved.

Abinash Chandra Bidyanidhi Bhattacharjee v. Dasarath Malo & Ors., E
AIR (1929) Cal. 123 and Sundrabai Sonbai Tendulkar v. Ramabai Jayaram,
AIR (1947) Born. 396, disapproved.

3. 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 F
the gift deed was executed by the power of attorney which is a wrong statement
It is nobody's case that the gift deed was executed by the power of attorney.
A perusal of the gift deed clearly shows that the owner of the property has
executed the gift deed and the power of attorney, was only authorised to
present the document for registration. The lower appellate court without G

-- 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. [785-E-F; 786-C-D]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3093 of
1982. I-I
782 SUPREME COURT REPORTS [1999] 2 S.C.R.

A From the Judgment and Order dated 3.2.82 of the Punjab & Haryana
High Court in R.S.A. No. 1807 of 1971.

Shant! Bhushan, R.K. Kapoor, P. Varma and Anis Ahmed Khan for the
Appellants.

B M.L. Verma and Prem Malhotra for the Respondents.

The Judgment of the Court was delivered by

K. VENKA T ASW A,,MI, J. This appeal by special leave is preferred
against the judgment of the Punjab and Haryana High Court in R.S.A. No.
C 1807/71 dated February 3, 1982. The appellants are the legal representatives
of the deceased plaintiff. For the sake of convenience, the parties are referred
hereinafter as 'ptaintiff 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
D site from the defendants. According to the averments in the plaint, the suit
site was acquired by the plaintiff under a gift deed dated l 8. l.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
E 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 I 6. l.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
F 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
G 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
H suit property and, therefore, had no right to make the gift deed in favour of
B.R. SINGHv. SEWAKRAM [K. VENKATASWAMI, J.} 783

the plaintiff. The gift deed, if any, he alleged, must be a devise by the plaintiff A
· .• 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.

However, the defendants have not filed any documents to substantiate B
their claim.

The trial court on the basis of the pleadings framed the following
issues:-

(i) Whether the plaintiff is the owner of the property in suit as C
alleged.
(ii) Whether the suit is within time.
(iii) Relief.

The trial court on the basis of the oral and documentary evidence found D
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 decree for possession
was granted on 15.1.l 97 l 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 E
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 F
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 G
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 H
784 SUPREME COURT REPORTS [1999] 2 S.C.R.

A 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 plaintiffs
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
B 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.
C In any 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 subsequent to the filing of the written statement. It is the further
D 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
E 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
F not produced. At this stage we must state that after perusing the original gift
deed (PW-6/l) in the court and in particular the endorsement of the Sub-
Registrar on the second page regarding the production of 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
G witness. In support of that, he cited an authority of this Court. Again this
point does not arise for consideration 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,
H therefore, that question does not arise. Mr. Verma, learned Senior Counsel for
B.R. SINGH v. SEW AK RAM [K. VENKATASWAMI, J.] 785

- the defendants, submitted that the point regarding execution or attestation A
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 B
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
c
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 D
· the above question of law, we have to see whether the lower appellate court
and 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/l), we find that the E
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:- F
"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 by the
Court below that the said document was executed by a person duly G
authorised to execute 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 H
786 SUPREME COURT REPORTS [1999] 2 S.C.R.

A 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
B lower appellate court observed as follows:-

" .. .it was necessary on the part of the plaintiff to have proved by
positive evidence that Janardhan Dass Shanna was duly authorised
to execute the gift deed in favour of the plaintiff by Kn. Chander Raj
Saran Singh."
c It is nobody's case that the gift deed was executed by the power of attorney.
A perusal 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 Parshad Sharma was only authorized to present
the document for registration. The lower appellate court without looking into
D 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
E 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
F 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 reliance on this document."

G Sobba Ram was not the attes~ing 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 ignored the categorical evidence
of PW 6 stating that he has also signed as witness. Section 3 of the Transfer
of Property Act specifically states that no particular fonn need be followed
in the matter of attestation. It can be at the first, as in this case, or at last
H page.
787
-
B.R. SINGH v. SEW AK RAM [K. VENKATASWAMI, J.]

The High Court, however, has rightly noticed that the gift deed was A
executed by Kan}"ar 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 B
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 Baka/am 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
c
necessary power of attorney in his favour dated 18th of February,
1953 was also produced before the Sub-Registrar as is evident from
his endorsement made on 9th of February, 1961. He was identified
before the Sub-Registrar by Ram Saran Dass - the scribe and one
Shabha Ram. According to the learned counsel for the appellant, since D
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 to attestation as required
under section 123 of the Transfer of Property Act. In support of this

- contention, he relied upon Girja Datt Singh v. Gangotri Datt Singh,
AIR (1955) SC 346 and Narain Singh etc. v. Parsa Singh alias Parsu,
(1971) C.L.J. 195.
E

After hearing the learned counsel for the parties at a great length,
as observed earlier, it appears that before the trial Court no such F
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
G
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 H

--
788 SUPREME COURT REPO.RTS [1999) 2 S.C.R.

A 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,
B 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
c the registering officer. In Timmavva Dundappa Budihal v. 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
D 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 facts of the present case and are clearly
E 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 of 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.
F
At this stage, let us extract the relevant section in Transfer of Property
Act and Evidence Act.

Transfer of Property Act:-

G 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,
H or has seen some other person sign the instrument in the pr~sence
B.R. SINGH v. SEW AK RAM [K. VENKATASWAMI, J.] 789
and by the direction of the executant, or has received from the A
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 ~ortion is set out] B
"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 purpose of making a gift of moveable property, the transfer C
may be effected either by a registered instrument signed as aforesaid
or by delivery.
Such delivery may be made in the same way as goods sold may
be delivered."
The Indian Evidence Act D
"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 µsed
as evidence untile one attesting witness at least has been called for
the purpose of. proving its execution, if there be an attesting witness E
alive, and subject to the process of the Court and capable of giving
evidence :
Provided that it shall not be necessary to call an attesting witness
in proof of the execution of any document, not being a will, which has
been registered in accordance with the provisions of the Indian
Registration Act, 1908 (16 of 1908), unless its execution by the person F
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 G
(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 H
790 SUPREME COURT RE.PORTS [1999] 2 S.C.R.

A 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 v. Muthu Pambulu, AIR (1920) Madras 588, a Division
B 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
c alive, etc.) then the document can be accepted by the court (of court,
if it believes his evidence) as evidencing 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
D 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 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
E wherl two are alive and that, even assuming that one only need be
called, he should, at least, be made to 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
F 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:
G "The fact that the Evidence Act is ten years older that the Transfer
of Property Act has no relevancy jn 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 handwriting of that witness and that the
H ~ignature of the person executing the document is in the handwriting
B.R. SINGH v. SEW AK RAM fK. VENKATASWAMI, J.) 791
of that person is proof which might be accepted as sufficient by the A
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 B
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 C
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 D
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 provisions 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 E
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 suf:f!ciently 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 attested
the document did not really see its execution and that the document F
therefore did not comply with the requirements of section 59, Act 4
of 1882."

In lachman Singh v. Surendra Bahadur, AIR (1932) Allahabad 527, a
Full Bench of the High Court considered the issue and answered as follows:- G

"Now let us consider the merits of the arguments. For the appellants,
it is argued that by compliance with the provision of Ss. 68, 69 and
71, Evidence Act, a party succeeds only in making the mortgage-deed,
or any other deed, like a deed of gift required to be attested by at least
two witnesses, admissible in evidence but in order to be able to show H
792 SUPREME COURT REPORTS [1999) 2 S.C.R.

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 validit~ of the deed propounded
either as a deed of mortgage or as a deed of gift is specifically in
\
questit>n, on the ground whether or not, the requirements of Ss. 59
B 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
c 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
D need prove only this much that the mortgagor 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
E 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 v. Rajnarain Rai, AIR (1935) Allahabad 781 the
High Court held as follows : - ·

F "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
G 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
H plaint stated that they were mortgagees under the deed dated 23rd
B.R. SINGH v. SEW AK RAM [K. VENKATASWAMI, J.) 793
September, 1929, and that they had been in possession of the plots A
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 wen: 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 B
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 v. Bhutuki & Ors., AIR (1972)
Guwahati 44, wherein the court held as follows:- C
"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 D
mortgage deed Ex. l 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 E
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 v. Surendra Bahadur, is an authority
for the propositions that Sections 68 & 69 of the Evidence Ac..t "make
a document which is attested admissible in evidence ifthe requirements F
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 G
that a deed may be merely admissible and yet may be incapable of
being read as a document of the kind which it profe:>ses 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 H
794 SUPREME COURT REPORTS [1999] 2 S.C.R.

A· 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
B 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
c 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
D 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 plaintiffs 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
E 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.
F 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 according to law. We find from
the original gift deed at the first page by the side of signatures of the donor,
G 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
H the defendants, is concerned, we find that it may not be necessary to refer
B.R. SINGH v. SEW AK RAM [K. VENKATASWAMI, J.] 795

the same so far as they related to the points that identifying witness cannot A
be an attesting witness; that mere marking of exhibit does not amount to
prove and that no one except the true 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 v. Kanta Varjivandas Saraiya, AIR (1946) Bombay 12, and B
Vishnu Ramkrishna and Ors., v. Nathu Vithal and Ors., AIR ( 1949) Bombay
266 relate to will and as such may not be apposite to the case on hand
concerning gift deed. In Sarkar Barnard & Co. v. Alok Manjary Kuari &
Anr., AIR (1925) Privy Council 89, Abinash Chandra Bidyanidhi Bhattacharjee
v. Dasarath Malo & Ors., AIR (1929) Calcutta 123, and Sundrabai Sonba C
Tendulkar v. Ramabai Jayaram, AIR (l 947) 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 v. 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 D
Property Act. In Balappa Tippanna, v. Asanqappa Mallappa and Another,
AIR (I 960) 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 E
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."
F
Here again there is no quarrel on the propositiori 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 G
its conclusion about the gift deed on the wrong 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 H
796 SUPREME COURT REPORTS [1999) 2 S.C.R.

A 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 PW6 has stated
as follows. The entire deposition is given below :-

"I know Kanwar Chander Raj Saran Singh son of Rao Brijraj
B 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/l. 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
c Sharma. He was manager and a general power of attorney. He had the
right to execute the sale. I also identify the signatures ofJanardhan."
(Emphasis supplied)

Cross-examination
D
"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
E 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
F signatures of Ram Saran Sharma at different places 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 was not an issue. This
G 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
H duly attested by 2 witnesses, out of whom one was examined to prove the
B.R. SINGH v. SEW AK RAM [K. VENKAT ASWAMI, J.] 797
deed and nothing more is required to satisfy the requirements of Section 123 A
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 affirmed by the High Court and restore the decree of the trial court. The B
appeal is allowed with costs, which we quantify at Rs. 5,000.

S.V.K.I. Appeal allowed.