Gajendragadkar, J. -
(1.)THIS appeal arises from a somewhat unfortunate dispute between the plaintiff and her father. The plaintiff has been a widow since her childhood and it is her case that she was brought up by her father and treated with great affection. In 1936 her father made a gift to her of the property in suit and in that behalf executed a registered document on August 21, 1936. Almost immediately after the deed was executed the father apparently changed his mind and would not allow the plaintiff to take possession of the property conveyed to her under the deed or to enjoy it peacefully. That is why the plaintiff was driven to file the present suit on the deed of gift executed in her favour. Originally the plaintiff had asked for an injunction on the ground that she was in possession of the property in question at the date of the suit. Subsequently, however, she made an alternative claim for possession and gave up her claim for injunction.
(2.)THE claim made by the plaintiff on the deed of gift was resisted by her father, defendant No.1, on three main grounds. He alleged that the deed of gift had been executed by him as a result of undue influence practised on him by the plaintiff's friend Rangappa; that the property which had been conveyed under the deed of gift was not his separate property but that it belonged to the joint and undivided family of himself and his nephew who was defendant No: 2 to this suit and the deed of gift executed by him was therefore invalid under Hindu law. He also pleaded that the document on which the plaintiff relied had not been properly executed. Pending the hearing of the suit in the trial Court the father died, and his widow was brought on the record.
In both the Courts below the first two pleas made by defendant No.1 were negatived. The third plea which he had made, however, succeeded. Both the Courts have found that it has not been satisfactorily proved that the document had been duly attested by two witnesses as required by Section 123 of the Transfer of Property Act. On that view the plaintiff's suit was dismissed. Thereupon, the plaintiff preferred second appeal No.496 of 1941. Mr. Justice Lokur who heard the said second appeal came to the same conclusion that the plaintiff had not proved that the document had been duly attested. The result was that the second appeal was also dismissed. Thereafter the plaintiff obtained a certificate from Mr. Justice Lokur and has filed the present Letters Patent appeal.
Under Section 123 of the Transfer of Property Act the deed of gift must be signed by or on behalf of the donor with the knowledge that thereby the transfer of the properties referred to in the deed is being affected. It must be attested by two witnesses and it must be registered. The requirements as to the signature of the executant and as to the registration of the document are satisfied. The question which arises for decision is whether the Courts below were wrong in holding that the requirementsthat the document must be shown to have been attested by two witneses has not been satisfied. The word "attested" in relation to any instrument required by law to be attested, means, under s, 3 of the Transfer of Property Act, that it has been attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant. Now the question as to the proof of documents which are required by law to be attested is dealt with by Sections 68 to 71 of the Indian Evidence Act. Section 68 provides that if a document is required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive. Under Section 69 if no attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. Section 70 deals with an exception to Section 68.It provides that the admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested. Under Section 71 it is open to a party to prove its due execution by other evidence if the attesting witness denies or does not recollect the execution of the document. Mr. Moropanth for the appellant has contended before us that in the present case it was not necessary for the plaintiff to have proved the attestation of the gift-deed. He argues that when the document was presented before the Sub-Registrar for registration the executant admitted that it had been executed by him and he contends that the said admission of the executant is enough to enable him to claim the benefit of Section 70.We are unable to accept this contention. The admission referred to in Section 70 must, we think, be an admission made by a party in the proceedings in which the document is produced and is intended to be proved. It has been held by the Allahabad High Court in Raj Mangal Misir v. Mathura Dubain (1915) I. L. R. 38 All. 1 that the "admission" referred to in Section 70 is an admission in the course of the proceedings in which the attested document is produced, for example, made in the pleadings or by a party himself in his examination. The certificate of admission of execution endorsed by the registering officer upon a document registered by him cannot, be used as an "admission" of execution within the meaning of this section. Mr. Moropanth has, however, relied upon a judgment of the Patna High Court in Nageshwar Prasad v. Bachu Singh (1919) 4 P. L. J. 511, In the said case the executant of the mortgage in question had admitted its due execution in a subsequent mortgage executed by him and the question which arose for decision was whether the extra judicial admission thus made by the party in a subsequent document could be held to be sufficient for the purpose of attracting the provisions of Section 70 of the Indian Evidence Act. Roe J. who delivered the main judgment of the Court decided the case on the facts before him without reference to Section 70, but in the judgment of Atkinson J. it was observed that under Section 70 of the Indian Evidence Act an admission made by a party prior to the institution of the proceedings where the document is produced may well be regarded as an admission within the meaning of the said word in Section 70. I am of opinion", observed Atkinson J. , That Abdul Karim v, Sulimun (1899) I. L. R. 27 Cal. 192 and Raj Mangal Missir v. Mathura Dubain (1915) I. L. R. 38 All. 1, which decide that an admission, under Section 70 of the Evidence Act of 1872, to be admissible in evidence can only apply to an admission in fact made in the course of a legal proceeding then pending before a Court of Justice cannot be supported on principle or authority. (p. 516) Mr. Moropanth has also relied upon another decision of the Allahabad High Court in Asharfi Lal v. Musammat Nannhi (1921) I. L. R. 44 All. 127 It is, however, clear from the report of the judgment in the said case that the admission on which reliance was placed by the party seeking to prove the document had been made in the pleadings in the case itself and the case thus clearly fell within the scope of Section 70 of the Evidence Act. Even so, the learned Judges proceeded to observe that they were not prepared to hold that Section 70 is limited to an admission made in the course of a suit; but they also pointed out that it was immaterial for the purpose Of the appeal to consider that question. The earlier decision of the Allahabad High Court in Raj Mangal Misir v. Mathura Dubain was not cited and has not been considered in this case. In our opinion under Section 70 it is only if a party is shown to have made an admission about the execution of the document in the proceedings where the document is produced that proof of the attestation can be dispensed with. If the contrary view is accepted, we apprehend that it would tend to render Section 68 inapplicable to most, if not all, documents which are registered.
(3.)BESIDES, the admission mentioned in Section 70 must, in our opinion, be an admission about the due execution of the document which would include an admission as to its proper attestation. The statement made by the executant before the Sub-Registrar at the time when the document was offered for registration could not be regarded as an admission about its due attestation. Under the Registration Act the Sub-Registrar is required to satisfy himself that the document is executed by the party whose signature it purports to bear and that the person offering it for registration is shown to his satisfaction to be its executant or his representative, assignee or agent. It is no part of his duty to consider the further question as to whether the document has been duly attested. In this view even if the statement made by the executant before the Sub-Registrar be regarded as one to which Section 70 of the Indian Evidence Act applies, that statement would be insufficient because it would not be an admission of the type contemplated by Section 70.It may be pointed out that this point was argued before Mr. Justice Lokur in another form. It was suggested before him that in a purshis, exhibit 82, filed on behalf of the defendants the execution of the document had been admitted, and it was contended that since the said admission had been made in the proceedings in the suit itself, it was unnecessary to prove its attestation by separate evidence. Mr. Justice Lokur, however, held, agreeing with the conclusions of the Courts below, that the statement contained in exhibit 82 did not amount to any admission at all. In view of the plea specifically made by defendant No.1 in his written statement that conclusion is obviously right. The result is that the appellant has got to prove due attestation of the document since she is not able to bring her case within Section 70 of the Evidence Act.
The document had been attested by two witnesses: Jamadar and Kulkarni. Out of them Jamadar was examined in the. case. He admitted his signature to the document, but denied that he had seen the executant sign it or that the executant had acknowledged its execution to him. In that sense his evidence was unsatisfactory and insufficient. Under Section 71, however, if the attesting witness examined by a party is unable to prove the attestation as required by Section 68, it would be open to the party to prove the said fact of attestation by other evidence. It was contended before the Courts below that the evidence of the plaintiff herself proved this fact of attestation. Reliance was placed upon certain statements which are to be found in the notes of her evidence made by the learned trial Judge. But on comparison with the deposition taken down in Kanarese it was discovered that the material statements on which reliance was placed were not deposed to by the witness and had not been taken down in Kanarese. Both the Courts below therefore took the view that reading the evidence of the plaintiff as a whole it was impossible to hold that that evidence proved the fact of attestation as required by the Indian Evidence Act. This finding of the Courts below was accepted by Mr. Justice Lokur, and in the present appeal that finding must be regarded as binding on the parties. That being sp, it must be held that the plaintiff has not proved the fact of attestation by any other evidence as permitted by Section 71 of the Indian Evidence Act.