1. The defendants-appellants who are the transferees from the original defendants Nos. 1 to 4 have filed this appeal challenging the judgment and decree passed by the Civil Judge, Senior Division, Amravati decreeing the suit for possession and mesne profits filed by the plaintiffs-respondent Nos. 1 and 2. The plaintiffs claimed the suit property as mutawallis appointed by a wake deed dated 4-7-1946 alleged to have been executed by deceased Sheikh Mehatab who died on 15-11-1946. By this wake deed Sheikh Mehatab purported to create a wake in respect of the properties specified therein, and according to the recitals in the wake deed Sheikh Mahatab was himself to be the mutawalli during his lifetime. The plaintiffs alleged that after Sheikh Mehatab died on 15-11-1946 defendant No. 1 Sheikh Gulab forcibly took possession of the property and alienated a large part of it. Sheikh Mehatab was the son of Sheikh Bawru and he had a brother by name Sheikh Chandu. Sheikh Chandu, had a son called Sheikh Wazir. Both these persons died before Sheikh Mehatab. Sheikh Wazir left behind a son, Sheikh Gulab, defendant No.1 and two daughters, Batulbi and Bismillabi, defendants nos. 2 and 3. Katunbi, defendant No. 4, is the wife of Sheikh Gulab. Now, according to the plaintiffs, these defendants had no right whatsoever to the property left behind by Sheikh Mahatab which was the subject of the wake and the defendant No.1 along with the defendants Nos. 2, 3 and 4, had sold properties to the various defendants. The details of the alienations made by these defendants are as follows : -
(1) Suit land from survey Nos. 127 of Shendurjana is sold by defendants Nos. 1, 2 and 4 and mother of defendant No.1 to defendant No.5 on 31-1-1951 (Ex. D-1).
(2) Suit land 4 acres of the western side from survey No. 131/1 of Shendurjana is sold by defendant No.1 to Noorkhan Rangwaikhan on 13-4-1955 and Noorkhan sold it to defendant No. 6 Vyankatrao on 21-6-1957 (Exs. D-9 and D-8).
(3) Suit land measuring 1 acre 6 gunthas on the eastern side from survey No. 131/1 of Shendurjana was sold by defendants Nos. 1, 3, 4 and mother of defendant No.1 to defendant 7 on 24-6-1953 and defendant No. 7 sold it to defendants Nos. 8 and 9 on 23-6-1954 (Exs. D-2 and D-3).
(4) Survey No. 71/1-A of Malkapur was sold by defendants nos. 1, 2, 3, 4 and mother of defendant No.1 to defendant No. 10 on 29-3-1954 (Ex. D-4).
(5) Survey No. 72/2 of Malkapur was sold by defendants Nos. 1, 3, 4 and mother of defendant No.1 to defendant no. 13 and Tulsiram on 31-3-1955 and thereafter Tulsiram sold his share from this land to defendant no. 13 (Ex. D-14).
(6) Suit land measuring 5 acres and 20 gunthas of the western side from survey No. 15 of Khedi was sold to defendant No. 14 on 17-2-1949 by defendants Nos. 1 and 2 and mother of defendant No.1 (EX. D-13).
(7) Suit land measuring 1 acre 25 gunthas of the northern side from survey No. 65 of Khedi was sold to defendants Nos. 10, 11 and 12 on 29-3-1954 by defendants Nos. 1, 2, 3, 4 and mother of defendant No. 1. (Ex. D-7).
(8) Two acres of eastern side of survey No. 33 of Mol Wihir was sold to defendant No. 15 by defendant No.1 on 22-2-1956.
(9) Three acres on the eastern side from survey no. 33 of Mol Wihir were sold by defendant No.1 to defendants Nos. 16 and 17 on 21-4-1956.
(10) Three acres of the eastern side from survey No. 33 were sold by defendant No. 1 to defendant No. 18 on 21-4-1956.
(11) Fourteen acres 33 gunthas of the eastern side from survey No. 33 of Mol Wihir were sold by defendants Nos. 1 and 4 to defendants Nos. 19 to 23 on 11-4-1958 (EX. D-15).
(12) Tiled house measuring 37 x 48 cubits of Shendurjana (mentioned at survey No. 4 in Schedule B of the plaint) is sold by defendant No.1 to defendant No. 24. The plaintiffs have also alleged that in addition to these alienation's, defendant No. 1 was in possession of three open plots and one house mentioned in Schedule B of the plaint and possession of this property was also claimed in the suit.
2. Before the trial Court, the defendants Nos. 3, 4, 15 to 18 and 24 were ex parte. The other defendants filed their written statements in which the pleas raised by them were almost identical. The suit of the plaintiffs was contested firstly on the ground of denial of the execution of the wake deed because the transferees-defendants claimed to have no knowledge of the said wake. The case of the defendants was that the entire field property with regard to which the wake was purported to be created was joint property of Sheikh Mehatab and Sheikh Gulab and did not belong exclusively to deceased Sheikh Mehatab. According to them, defendant No.1 Sheikh Gulab and deceased Sheikh Mehatab were staying jointly and the properties were treated as joint properties by both of them. Another defence to the suit was that the wake was illegal and void as it was obtained by undue influence by the plaintiffs taking advantage of the old age of Sheikh Mehatab and his failing health. It was also alleged that the alleged wake, if there be any, was created during the death-illness (Marzul-maut)of Sheikh Mehatab and it could, therefore be valid only to the extent of 1/3rd of the property of the deceased i.e., his share in the joint property after payment of funeral expenses according to Mohammed Law. The defendants contended that Sheikh Mehatab had never acted upon the wake during his lifetime and the suit properties were in joint possession of Sheikh Gulab and Skeikh Mehatab at the time of the death of Sheikh Mehatab and it was, therefore denied that he (Sheikh Gulab) took forcible possession of the properties after Sheikh Mehatab's death. It was alleged that Sheikh Gulab had himself half share in the suit properties and the remaining half share of Sheikh Mehatab devolved on Sheikh Gulab by succession. According to the defendants, they were bona fide purchasers for value without notice of the wake deed and hence the transfers in their favour could not be set aside. It was also alleged that the plaintiffs could not claim any specific land as no particular part of any of the fields in dispute belonged to deceased Sheikh Mehatab because there was no partition made during his lifetime. An alternative claim made in respect of S. Nos. 71/71-A and 72/2 was that defendant No. 1 Sheik Gulab had become the owner of adverse possession. At the trial on behalf of the plaintiffs four witnesses were examined and it is not now disputed that the only material evidence so far as the execution of the wake is concerned was the evidence of Kazi Rahimuddun. Five witnesses were examined on behalf of the defendants.
3. The trial Court held that there was no evidence to show that the lands and the house property in the suit were exclusively properties of deceased Sheikh Mehatab and it gave a finding that those properties were the joint properties of Sheikh Mehatab and Sheikh Gulab at the time of the death of Sheikh Mehatab. The trial Court then came to a finding that the wake deed (Ex. P-29) was sufficiently proved and that decreased Sheikh Mehatab had created a wake of his properties mentioned in the wake deed (Ex. P-29) dated 4-7-1946. It may be stated at this stage that while coming to the conclusion that the execution of the wake deed was proved the trial court took into account three circumstances. The first circumstance was the statement of Kazi Rahimuddin (P. w. 3) that he had seen deceased Sheikh Mehatab sign the wake deed. The second circumstance was that on comparison the signature of Sheikh Mehatab on the wake deed (Ex. P-29) appeared to be his when compared with the authentic signature of Sheikh Mehatab made before the Sub-Registrar on the same wake deed at the time of registration. The third circumstance was that there was a certificate of the Sub-Registrar on the wake deed as prescribed under Section 3 of the Indian Registration Act, and according to the learned Judge, in view of the provisions of Section 60(2) of the said Act as such an endorsement made by the Sub-Registrar could be some evidence of execution. On the contention of the defendants that the wake was one which was made during his death-illness by Sheikh Mehatab the trial Court held that there was no question of any apprehension of death by Sheikh Mehatab, nor was there any immediate danger of death of Sheikh Mehatab on 4-7-1946 when he executed the wake deed. The trial Court negatived the contention of the defendants that there were bona fide purchasers for value without notice and that their purchases were protected. On the issue of adverse possession in respect of S. Nos. 71/1-A and 72-2 the trial Court held against the defendants. Having held that wake deed to the proved the plaintiffs were held entitled as mutawallis to recover possession of the wake property. Having regard to the earlier finding that the properties were joint properties of Sheikh Mehatab and Sheikh Gulab, the trial Court cam to the conclusion that the wake could operate only in respect of half share of Sheikh Mehatab in the suit properties. The trial Court found that the plaintiffs could not claim land from any particular part of each filed. This applied only where the entire fields were not made the subject-matter of the wake. These were fields S. Nos. 127 and 131/1 of Shendurjana, S. Nos. 15 and 65 of Khedi and S. No. 33 of Mol Wihir, because in respect of these fields a particular part of the field was stated to be the subject of the wake in the wake deed. On the issue of mesne profits the trial Court rejected the evidence tendered on behalf of both the plaintiffs and the defendants and came to the conclusion that there was to mesne profits and, therefore, only nominal past mesne profits could be awarded to the plaintiffs. Consequently the trail Court awarded mesne profits at Rs. 50/- per year in respect of pieces of lands from S. No. 127 of Shendurjana and S. No. 65 of Khedi, at Rs. 100/- per year in respect of pieces of lands from S. No. 15 of Khedi and No. 131/1 of Shendurjana and S. nos. 71/1-A and 72/2 of Malkapur, and at Rs. 200/- per year in respect of piece of land from S. No. 33 of Mol Wihir. The total mesne profits which were thus awarded to the plaintiffs came to Rs. 1900/- as against the claim for Rs. 7350/- made by the plaintiffs initially. With regard to the house property also the trail Court found that the plaintiffs will two houses and three open sites mentioned in the plaint after its division of land will have to be done by the Collector, Amravati, under Section 54 read with Order 20, Rule 18 of the Code of Civil Procedure. So far as S. No. 33 of Mol Wihir was concerned, the trial Court found that the plaintiffs' claim could be allowed only to the extent of 13 acres 24 gunthas subject to the maximum to the extent of on-half share of deceased Sheikh Mehatab in that land. The plaintiffs who had claimed future mesne profits were also held entitled to them. Accordingly, a decree directing delivery of possession of the areas specified in the respective fields in the wake deed was passed subject, however, to a rider that in case of S. Nos. 131.1 15, 65 and 33 the land of which possession would be given to the plaintiffs would not exceed half the area of the fields. S. Nos. 71/1-A and 72/2 of Malkapur were, however directed to be given possession of the plaintiffs wholly. Being aggrieved by this judgment and decree of the trail Court the defendants-transferees have filed this appeal.
4. Now, the first contention which is raised on behalf of the appellants in this appeal is that the appellants had specifically denied the execution of the wake deed and the plaintiffs have failed to examine either the scribe of or any of the attesting witnesses to the wake deed. According to the learned counsel, there is no evidence on record which can be said to prove the signature of deceased Sheikh Mehatab on the wake deed and, therefore, the wake deed was not proceed, with the result that the very basis on which the plaintiffs land a claim to the disputed properties had not been established by them. Now, so far as the execution of the wake deed is concerned, as we have already pointed out above, the trail Court has mainly relied on the evidence of Kazi Rahimuddin (P. W. 3). Having carefully gone through the evidence of Kazi Rahimuddin however, we are not inclined to agree with the view which is taken by the learned Judge of the trial Court that Kazi Rahimuddin was present at the time of the execution the wake deed. The wake deed (Ex. P-29) is no doubt a registered document, but that does not absolve the parties relying on the document from independently proving the execution of the document before any claim can be laid on the basis of that document. It is a document which shows that it was executed on 4-7-1946. It was scribed by one Anand Waman Muley, resident of Warud. The signature of Sheikh Mehatab on the document is in Modi script and the signatures of the two attesting witnesses, Sheikh Bannoo Sheikh Gafoor and Narayan Sakharamji Patil, are also in Modi script. Now, admittedly neither Anand Waman Muley, who was scribe, nor any of the attesting witnesses had been examined on behalf of the plaintiffs. It is true that the wake deed is not by law required to be attested, and the examination of an attesting witness would not be necessary before the document can be said to have been proved. But if neither the scribe nor the executant of the document was available, then the only other witnesses who could have validly proved or deposed to the execution of the document by Skeikh Mehatab would be the attesting witnesses of persons who knew the signature of Sheikh Mehatab, Kazi Rahimuddin is not one of the attesting witnesses, nor was there any thing in the document itself to show that he was present at the time of its execution. Before we refer to the evidence of Kazi Rahimuddim, it is necessary to refer to another document which is on record i.e. the will Ex. P-28 which also is executed by deceased Sheikh Mehatab on 27-11-1944. That document purports to have been signed by Sheikh Mehatab himself and there are six attesting witnesses. Sheikh Bannoo Sheikh Gafoor is a person who has attested both the will dated 27-11-1944 and the wake deed Date 4-7-46. Kazi Rahimuddin is an attesting witness to the will. A reference to one more attesting witness is necessary, that is, Vasant Ramchandra Kukde. The name of Vasant Ramchandra Kukde becomes relevant when we consider the evidence of Kazi Rahimuddin. The execution of the will by deceased Sheikh Mehatab does not in any way affect the plaintiffs' claim if it is otherwise proved though it appears that by this will dated 27-11-1944 Sheikh Mehatab had also dedicated certain properties for religious and charitable purposes, and a part of the property was according to the will, to go to Sheikh Gulab. But a found rightly by the learned Judge, the will has been superseded, and in view of the wake deed the will does not become operative. It is not necessary to refer to the evidence of Kazi Rahimuddin who, as it appears from the judgment of the learned Judge, was assumed to be present at the time when the wake deed was executed. The will dated 27-11-1944 was shown to Kazi Rahimuddin and he deposed that he was present when Sheikh Mehatab signed it. Then he deposes that Sheikh Mehatab executed a wake deed in 1946 and he was present at that time. When the wake deed was shown to him, he stated that Sheikh Mehatab had signed it in his presence and that Sheikh Mehatab was keeping good health when he executed the wake deed. His evidence in cross-examination however, shows that his statement that he was present at the time when Sheikh Mehatab executed the wake deed cannot be accepted as true. When he was asked about the details of the time when the wake deed was written, he expressed his inability to say whether the wake deed was executed in morning or in the evening. He also could not give the names of the other persons who were present on that day and whether those persons were from Shendurjana or some other villages. Shendurjana was the place where Sheikh Mehatab resided and where the document was written. He further says that Vasant Kukde, Gangaram Bhuraji and Sankarrao Mukhlaji were among the persons present when the wake deed was written, and Vasant Kukde wrote the wake deed. According to him, Vasant Kukde was specially called from Warud for writing the document. Now, the document itself shows that Vasant Kukde had not written the document and he was only an attesting witness to the will executed two years earlier. Neither Gangaram Bhuraji nor Sankarrao Mukhlaji nor Vasant Kukde are examined as witnesses. There is no other means of ascertaining whether they were really present. These are the persons who are the attesting witnesses to the will, and in all probability, when the witness was referring to these names, he was obviously referring to these witnesses as those who had signed as attesting witnesses on the will. The witness went to the extent of deposing that he had attested the wake deed. As already pointed out, there were only two attesting witnesses to the wake deed and Kazi Rahimuddin is not one of them. When the witness was deposing to the fact of his having attested the document, it appears to us that he was all the time deposing the will and not to the wake deed because he is a witness to the will. The witness further stated that the wake deed was handed over to the panchas plaintiff after it was written. Mohammad Kasam (P. W. 1) who is examined as P. W. 1 however, does not depose that the wake deed was given to him after it was written. Mohammed Kasam'z statement in examination-in-chief was that the wake deed was given to him two or three days prior to his death by Sheik Mehatab himself. According to the witness, the plaintiffs were called there, but he prevaricated later and said that the wake deed was handed over to the plaintiffs two or three days after its registration. The witness further claims to have gone to Morshi two days after the document was written for the purpose of registration of the wake deed, and the deed was, according to him, registered on the third day. This statement again is not borne out by the endorsement of registration on the document. The document was written on 4-7-1946 and it was registered about 20 days later i.e. on 24-7-1946. When the witness was further cross-examined as to when the wake was executed, he stated that it was executed in the month of April while the wake deed was actually executed in the month of July 1946. All these statements which are made by witness Kazi Rahimuddin clearly show, in our view, that the witness knew nothing about the wake deed nor was he present at the time when it was either executed or registered. Now, the learned Judge, while noticing these discrepancies in the evidence of Kazi Rahimuddin, has tried to explain away the discrepancies by observing that the confusion was very likely when the witness was coming further to say about the execution of two documents in his presence. While making these observations the learned Judge seems to have assumed that the witness was present at the time of the execution of the wake deed when that was the very fact which had to be ascertained after going through his evidence. It is not disputed that no other witness speaks of having seen Sheikh Mehatab sign this document, and if Kazi Rahimuddin's evidence is rejected, there is no other oral evidence on which it could be held that it is proved that the signature of the wake deed (Ex. P-29) is that of Sheikh Mehatab.
5. Miss. De. learned counsel appearing on behalf of the plaintiffs, however, contends that even on the other two grounds, namely, the comparison of the handwriting and the endorsement made by Sub-Registrar, the finding that the execution has been duly proved can be sustained. Now, it is no doubt true that the learned Judge has tried to compare the signature of the executant on the wake deed with the signature made by him on the will. We are not in a position to ascertain whether the learned Judge who decided the suit was familiar with the Modi script. But that apart, in our view though it is permissible for a Court under Section 73 of the Evidence Act to compare signature, a comparison of handwriting as a mode of proof is very hazardous and inconclusive, specially when it is made by one not conversant with the subject and without such guidance of experts. The Judge should not, therefore, decide the question whether the disputed signature agreed with the other signatures of a certain person merely on his own inspection without the assistance of expert evidence: See also Asmand Ullah Khan v. Shiam Lal AIR 1947 All 411. By such a comparison of signatures, the document cannot be said to have been proved as required by Section 67 of the Evidence Act.
6. The learned Judge then relied on the provisions of Section 60 of the Indian Registration Act, 1908, and held that the certificate of registration under Section 60 of that Act was 'some evidence of execution'. Sub-section 91) of Section 60 provides that after such of the provisions of Section 34, 35 and 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word 'registered', together with the number and page of the book in which the document has been copied. Then sub-section (2) provides that such certificate shall be signed, sealed and dated by the registering Officer, and shall the be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in S. 59 have occurred as therein mentioned Section 59 requires the registering Officer to affix the date and his signature to all endorsements made under Sections 52 and 58, relating to the same document and made in his presence on the same day. Now it is difficult for us to appreciate the argument which is advanced on behalf of the plaintiffs that even though the evidence of Kazi Rahimuddin is rejected, the endorsements made under Section 60 (2) would be sufficient to prove the execution of the document (Ex. 29). In our view there is nothing in Section 60(2) by which these endorsements made by the registering officer could be treated as substitute for the evidence which is contemplated by Section 67 of the Evidence Act when a document which has been executed by a person is required to be proved. Section 67 of the Evidence Act provides that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the writing of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. It has been held by this Court as far back as in Maruti v. Dattu. AIR 1923 Bom 253 that from the endorsement made by the registering officer that a certain person admitted the execution, it may be presumed that the person who admitted execution was the person who signed the deed but that does not itself prove who signed the deed. That was a case in which the plaintiff's title to the suit property depended o a document which was a sale deed which purported to have been executed by the defendant No.1. The defendant No. 1 was not examined, nor was the writer of the document nor was any witness who purported to have attested it examined, and the question was whether the document could be said to be proved on the basis of the endorsement made under section 60 of the Registration Act. Reliance was placed on an earlier decision of this Court in Thama v. Govind : (1907)9BOMLR401 . In that case the learned Judge has observed :
'On the document here are endorsements made in accordance with the provisions of Section 58 and in those endorsements it is stated that the executants admit execution of the document and receipt of money. We are unable sitting here in second appeal to say that these endorsements prove that execution and the receipt of consideration money, but we are able to say that the endorsements must, therefore, reverse the decree of the lower appellate Court and send back the case for re-determination in the light of these remarks. At the same time we desire to make it clear that though the certificate is admissible for the purpose of proving that the facts mentioned in the endorsement occurred as therein mentioned, we do not wish to fetter the discretion of the Court or to suggest that by reason of those endorsements the Judge is bound to hold that there has been such execution and payment as the endorsements suggest.'
The Division Bench, after referring to these observations held :
'The only effect of that decision is that the certificate can be considered as proving certain facts within the meaning of Section 60 of the Indian Registration Act. These facts might go so far in this case as to show that the person purporting to sing Ex. 29A admitted his signature before the Registrar. In the absence of any further evidence and no evidence was led in the Court below, that would not be evidence, if the necessary link in the chain that the person who admitted execution before the Registrar was the person who could give title to the plaintiff. The only facts which are mentioned in the endorsement are that a certain person admitted execution, and one is entitled to presume that the person who admitted execution was the person who signed the deed. But that, as I have tried to point out, does not of itself prove who signed the deed. It is useless, therefore, in my opinion to send down the case for further examination by the Court below. It is unfortunate for the plaintiff that he was unable to prove his document, but as the evidence stands he was bound to fail.'
The case before us is almost identical to the case which was being decided by the Division bench in (cit. sup.) = (AIR 1923) Bom 253 (2)).
7. In Indernath Modi v. Nandram, Wanchoo C. J. (as he then was) observed :
'Among the endorsements referred to in Section 59, is the endorsement under Section 58. The endorsement under Section 58 includes the signature and admission of every person admitting the execution of the document. It is from this admission of execution made under Section 58 that the Courts have held that the registration of documents is some proof of its execution. At the same time, it may be remembered that this mode of proof cannot take the place of proof as provided by Section 67 of the Evidence Act which lays down that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.'
(Underlining is ours)
8. A similar view of the effect of the endorsement made under Section 60 of the Registration Act has been taken by the Andhra Pradesh High Court in Ramanna v. Sambamoorthy, : AIR1961AP361 . The Division Bench observed in paragraph 19 of the judgment :
'The effect of registration is not to prove execution as provided by S. 67 of the Evidence Act but only to prove an admission by the executant to the registration in solemn circumstances. The certificate of the registering Officer is admissible not to prove the execution of the deed but merely to prove the admission of execution, the effect of such admission being in each case a separate question.'
9. We may also refer to the view taken by the Assam and Nagaland High Court in Bhutkani Nath v. Kamaleswari. AIR 1972 GAU 15. With reference to Section 60 of the Registration Act, the Division Bench observed :
'It is, however, well-settled that when execution of a document is being challenged the certificate of registration alone will not be sufficient proof of the due execution of the document. Registration does not dispense with the necessity of proof of execution when the same is denied. It is true that a sale deed is not required by law to be attested. Even then proof of execution of a sale deed, when it is denied will have to be furnished as in the case of any other document under Section 67 of the Evidence Act.'
10. In our view a certificate of registration given under Section 60 of the Registration Act is not sufficient to prove the execution of a document is denied proof as required by Section 67 of the Evidence Act must be furnished. In the absence of any other evidence on record adduced by the plaintiffs, it is clear that it is not possible to hold merely on the basis of the endorsement of the registering officer that the execution of the wake deed by deceased Sheikh Mehatab has been proved as required by Section 67 of the Evidence Act.
11. The Learned counsel appearing on behalf of the plaintiffs, however, referred to the decision of the Privy Council in Gopal Das v. Sri Thakurji . In that case their Lordships of the Privy Council observed that when the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trail before the document is marked as an exhibit and admitted to the record and the party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. It is difficult for us to see how these observations could be of any assistance to the plaintiffs. If Kazi Rahimuddin's evidence was accepted there could be no objection to the mode of proof of the document because if he had seen the document being executed, he was the best witness who could have proved Sheikh Mehtab's signature. The objection of the defendants in the instant case is not to the mode of proof but their contention is that the evidence of Kazi Rahimuddin must be rejected because he was not present when the document was executed. This objection to reading the evidence of Kazi Rahimuddin as of a witness who could legally prove Ex. P-29 could be taken only at the stage of arguments and the defendants' contention that Kazi Rahimuddin must not be believed as a witness cannot be ruled out and indeed, as we have found, there is substance to that objection. Even the Privy Council decision in Gopal Das's case (cit. sup.) cannot be read as laying down that where a stranger to a document denies the execution of the document, the document must be taken to have been proved merely on the endorsement of the registering officer. That was a case in which the document concerned was a registered receipt of the year 1881 and the suit in which the question with regard to that receipt arose was filed sometime about forty years later and it was in that context that the Privy Council observed :
'It seems clear that any objection to the sufficiency of the proof upon this point would have been idle, the circumstances being such that the evidence of due registration is itself some evidence of execution as against the plaintiffs.'
Even there, the words used are 'some evidence' and we are not, therefore inclined to read the decision of the Privy Council in Gopal Das's case. as laying down that proof as contemplated by Section 67 of the Evidence Act can be dispensed with in the case of a registered document. It is not, therefore, possible for us to sustain the finding of the learned Judge that Ex. P-29 was proved as a wake deed duly executed by deceased Sheikh Mehatab.
12. Probably anticipating their difficulty the learned counsel for the plaintiffs has filed an application under Order 41, Rule 27 (b), of the Code of Civil Procedure, stating that one of the attesting witnesses, Sheikh Bany, died long back: the other attesting witness Narayan Sakharam Patil could not be traced; and that the scribe Anand Waman Muley is available, who should now be allowed to be examined. Now, it may be stated at this stage that before the trial Court the plaintiffs had already cited one of the attesting witnesses, Sheik Banu son of Sheik Gafoor, resident of Morshi, as their witness. No reason is disclosed as to why he was not examined before the trial Court. No reason is also disclosed as to why the scribe could not be examined in the trial Court, Clause (b) of Rule 27 of Order 41 of the Code of Civil Procedure as applicable in this Court gives a discretion to the appellate Court to allow a party to adduce additional evidence if the party seeking to adduce additional evidence satisfies the appellate Court that such evidence, notwithstanding the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree or order under appeal was passed or made. The application discloses no reasons, as already stated, as to why the scribe could not be produced or summoned in the trial Court. The plaintiff's basis of the title was the wake deed and the names of the scribe and the attesting witnesses appear on this deed itself. Our attention was drawn by the learned Counsel for the plaintiffs to their averment in the application that the plaintiffs were poor persons and could not afford to summon the said witnesses. This reason is not borne out by the record. The record discloses that the plaintiffs had already paid the process fee for issuing a process to Sheik Bany and the process parcha to that effect is found in the D file of the trial Court. The application purported to have been made under O. 41, Rule 27 (b) of the Code of Civil Procedure must, therefore, be rejected. The prayer cannot even be permitted to be made under Clause (c) because having heard the appeal at length, we cannot say that we are unable to pronounce any judgment in this case without the evidence of the scribe. As a matter of fact, any further opportunity to the plaintiffs to examine the scribe will result in almost reopening the whole case because one of the defences to the suit is that Sheikh Mehatab when he made the wake was not in sound health and that fraud was practiced upon him. If the evidence of the scribe is allowed to be recorded, the cross-examination by the defendants could not be restricted and any opportunity to bring on record additional evidence will be in contravention of the provisions of Order 41, Rule 27, of the Code of Civil Procedure. The application must therefor, be rejected.
13. In the view which we have taken, namely, that the plaintiffs have failed to prove that the wake deed (Ex-P29) was executed by Sheikh Mehatab, the plaintiffs must fail in their suit. It is wholly unnecessary for us, therefore, to go into the further questions which were argued on behalf of the appellants. We might however, observe that on behalf of the appellants it was contended before us that the wakf deed was vitiated by fraud and that it was made during death-illness and, therefore, even if it was proved it could operate only in respect of one-third of half share of deceased Sheikh Mehatab. The finding that the suit properties were joint properties of Sheikh Mehatab and defendant No. 1 was not challenged before us on behalf of the plaintiffs. the learned counsel for the defendants had also challenged before us the finding on the quantum of mesne profits, because according to him, since the learned Judge has come to the conclusion that there was no evidence on either side about the quantum of mesne profits, the award of Rs. 1900/- as nominal mesne profits was excessive. A contention was also raised that the decree, in so far as it directs a particular portion of some lands in dispute to be delivered possession of to the plaintiffs, was erroneous because deceased Sheikh Mahatab could not lay a claim to any particular part of the fields and if there was a partition, according to the learned counsel, the properties which were sold by the defendants nos. 1 to 4 could as far as possible have been allotted to the share of the defendants as a result of partition and equities could have been so adjusted that the possession of the appellants was not required to be disturbed. However, in view of the finding on the basic issue of the title of the plaintiffs, we do not feel called upon to give any findings on these contentions raised by the defendants-appellants.
14. The result, therefore is that the judgment and decree of the trial Court decreeing the plaintiffs' suit are set aside and the plaintiffs' suit are set aside and the plaintiffs' suit shall stand dismissed with costs throughout. The court-fees on the claim in the trial Court will be recovered from the plaintiffs by the State.
15. Appeal allowed.