- (1.) The unsuccessful plaintiff is the appellant before us. One Raja Bai had executed a gift deed dated 20/6/1957 in favour of Respondent 1 Sureshchandra Kanhaiyalal Kochar. She died on 21/5/1966. About five months prior to her death she executed a registered Will dated 27/12/1965 in favour of the appellant bequeathing the self-shared property gifted over to the first respondent under the Gift Deed dated 20/6/1957. Initially the appellant filed the suit against the tenants claiming possession thereof but when they pleaded the gifting over in favour of Sureshchandra, the appellant impleaded him as a third respondent who had pleaded in the written statement that Raja Bai had bequeathed the property to him under the Gift Deed dated 20/6/1957. Thereafter the appellant has amended the plaint and sought for a declaration that he is the owner of the property. The trial court decreed the suit. In First Appeal No. 174 of 1974 and Letters Patent Appeal No. 60 of 1984 the learned Single Judge of the High court and the division bench had held that the gift deed was duly executed by Raja Bai in favour of Sureshchandra and, therefore, the appellant does not get any right under the Will. Accordingly they dismissed the suit. Thus, this appeal by special leave.
(2.) Shri Bobde, learned Senior Counsel for the appellant, sought to contend that the gift deed has not been duly proved. He also contended that the donor had not parted with the possession of the property covered by the gift deed. On the other hand evidence on record shows that she remained in possession and enjoyment of the property as the owner. Therefore, the gift was not given effect to. In other words it could be treated to be a Will. Since she had executed the Will on 27/12/1965 it must be deemed that the earlier Will stands revoked, thereby the appellant is the owner of the property. We find no force in the first contention. The second contention was not raised in the courts below and, therefore, we cannot permit the learned counsel to raise that contention for the first time here without proper pleadings, evidence and consideration by the courts below.
(3.) It is seen that Chagan Lal, one of the attesting witnesses, was examined on behalf of the appellant. Section 123 of the Transfer of Property Act, 1882 for short 'the Act' postulates that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. In Section 3 of the Act 'attested' has been defined, 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 other person sign the instrument in the presence and by the directionof 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; 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.;