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.
3. 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.
4. 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 I.L.R(1915) . 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 I.L.R.(1899) Cal. 192 and Raj Mangal Missir v. Mathura Dubain I.L.R(1915) 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 I.L.R(1921) . 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.
5. 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.
6. 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.
7. Mr. Moropanth has, however, contended that the endorsement made by the Sub-Registrar and the signature made by him and the signatures of the identifying witnesses should be regarded as proving attestation. He argues that when the document was presented before the Sub-Registrar on an inquiry from him the executant admitted that the document had been duly executed by him, and he contends that when the identifying witnesses identified the executant before the Sub-Registrar and when the said witnesses and the Sub-Registrar put their signatures to the document thereafter, those signatures may well be taken to be the signatures of the attesting witnesses, since before them the executant had acknowledged the execution of the document. It seems to us that this argument cannot be accepted. Prima facie, before a document is presented for registration it must be completed as requiied by the provisions of the Transfer of Property Act. Under Section 123 of the Transfer of Property Act a deed of gift must be duly signed by the executant and must be attested by two witnesses. It is only when the execution has been completed in this form that the document can be presented for registration. If what happens at the time of registration is regarded as affording attestation to the document, it might obviously lead to the result that the document could be and was presented for registration before it was completed. Under Section 47 of the Registration Act after a document is registered it takes effect from the time of its execution. This distinction between two points of time could hardly be made if the signatures of the Sub-Registrar and of the identifying witnesses are themselves regarded as the signatures of attesting winesses. Sections 34, 52 and 58 of the Registration Act seem to imply that the document which can be presented for registration must be completed before it is so presented. Prima facie, therefore, the attestation of the document required by Section 123 of the Transfer of Property Act must be made before it is presented for registration. Besides, the Sub-Registrar is not expected to inquire whether the document has been duly attested. Under Order 277(1) of the Bombay Registration Manual it has been provided that the words 'admission of execution' in the Registration Act do not simply mean that the executant acknowledges that the signature appearing on the document is his. Admission of execution must contain two elements: (a) the executant must admit that that is his signature and (b) he must admit that he affixed it with the conscious intention at the time he did it of executing the document.' This Order gives us a clear indication as to what the Sub-Registrar is expected to do before he endorses that the document should be admitted to registration, and it would not be unreasonable to assume that the Sub-Registrar would not in ordinary course inquire into the further question as to whether the document had been duly attested by two witnesses as required by law. In this connection it may also be pointed out that there is considerable authority in support of the view that an attesting witness must be a person who signs the document purporting to do so as an attesting witness. In Ranu v. Laxmanrao 10 Bom. L.R. 943 it was contended before this Court that the writer of the document in question who in concluding the writing of the body of the document states that it was written by him should be treated as an attesting witness. This contention was repelled. Scott C. J. referred to a decision in Burdett v. Spilsbury (1843) 10 Cl. & F. 340 where Lord Campbell observed (p. 417):
What is the meaning of an attesting witness to a deed? Why it is a witness who has seen the deed executed, and who signs it as a witness.
8. The same view was accepted by this Court in Dalichand Shivram v. Lotu Sakharam 22 Bom. L.R. 136. It was observed that the writer of a document who puts his signature at the end of the document could not be treated as an attesting witness within the meaning of Section 68 unless he actually signed as an attesting witness in the document. 'Attesting witness', it was observed, 'is a witness who has seen the deed executed and who signs it as a witness.' In Sarkar Barnard & Co. v. Alak Manjary Kuari : (1924)26BOMLR737 the same question had been raised before the Privy Council. The learned Judges of the Patna High Court, from whose judgment the appeal had been preferred, had to consider the question as to whether the signature of the husband on the document executed by his wives could be regarded as that of the attesting witness; and it had been held by them that the husband having signed the document to express his consent to the act of his wives, could not be treated as an attesting witness. This conclusion of the Patna High Court was based on the observations of the Lord Chancellor in Burdett v. Spilsbury which I have already cited. Their Lordships of the Privy Council apparently accepted this view of the Patna High Court since they dismissed the appeal solely on the ground that it was 'a hopeless appeal.' In this view the signature made by the Sub-Registrar or by the identifying witnesses at the time of registration cannot obviously be regarded as the signatures of attesting witnesses.
9. It is true that this question has given rise to a conflict of judicial opinion. In Veerappa Chettiar v. Subramania Ayyar I.L.R.(1929) Mad. 123 a full bench of the Madras High Court has taken the view that the signatures of the Registering Officer and of the identifying witnesses, affixed to the registration endorsement tinder Sections 58 and 59 of the Registration Act, are a sufficient attestation within the meaning of Section 59 of the Transfer of Property Act and its subsequent amending Acts. In the judgment only the answers to the questions submitted to the full bench are set out and the reasons in support of them are not mentioned at any length. In the opinion of the learned Judges 'The Registering Officer and the identifying witnesses had exactly the same duty imposed upon them by the Registration Act as would have rested upon them as attesting witnesses under the Transfer of Property Act and that duty they discharged.' It may be pointed out that in the case which was referred to the full bench evidence had been given by the Sub-Registrar to show that he had made his signature in the registration endorsement referring to the admission of execution by the executants of the document in the presence of the executants and it had also appeared in evidence that the witnesses who had identified the executants before the Sub-Registrar were present when the admission of execution of that document was made by the executants, and that both the identifying witnesses made their signatures in the presence,of the executants. In the present case neither the Sub-Registrar, nor the identifying witnesses have been examined, and even if the Madras view were accepted, there is no material to justify the assumption made by the appellant that the Sub-Registrar and the identifying witnesses otherwise satisfied the test of due and proper attestation. Under Section 59 of the Registration Act it is not necessary that the Sub-Registrar must make his endorsement in the presence of the executants of the document, though in most cases he might make his signature in their presence; and having regard to the nature of the inquiry which the Sub-Registrar is required to hold before he admits any document to execution, it is not unlikely that in regard to the signatures of the identifying witnesses as well as that of the Sub-Registrar the essential elements of attestation may be lacking.
10. In Lachman Singh v. Surendra Bahadur Singh I.L.R(1932) All. 1051 on the other hand, a contrary view has been accepted by a full bench of the Allahabad High Court. The question was exhaustively considered by the learned Judges, and it was held that the signatures of the Sub-Registrar and of the witnesses identifying the executant at registration are not sufficient attestation of a mortgage-deed for the purposes of the Transfer of Property Act, even assuming that the Sub-Registrar and identifying witnesses did receive from the executant a personal acknowledgment of his signature or mark, and that they did sign in the executant's presence.
11. It may be pointed out that in Surendra Bahadur Singh v. Behari Singh (1917) 41 L.R. 1047 P.C when this question was raised before their Lordships of the Privy Council their Lordships referred both to the Allahabad and Madras views, but held that in that particular case it was not necessary for them to express any opinion as to which of the two views was correct.
12. This question had been raised in this Court before Mr. Justice Blackwell in Harkisandas v. Dwarkadas : AIR1936Bom94 . Blackwell J. referred to the full bench decision of the Madras High Court just mentioned by me and expressed his respectful dissent from the conclusions recorded in the said case. He pointed out that no duty was imposed upon the Sub-Registrar or the identifying witnesses to attest the signature of the person executing the document and that they are not called before the Registrar for that purpose. He also referred to the full bench decision of the Allahabad High Court and expressed his agreement with that view.
13. As I have already mentioned in the cases in Ranu v. Laxmanrao, and Dalichand Shivram v. Lotu Sakharam, it has been held by his Court that in order that a signature of a person may be treated as that of an attesting witness it must be shown that that person signed the document intending to act as an attesting witness, and this view was, as I have already mentioned, indirectly accepted by the Privy Council in the case in Sarkar Barnard & Co. v. Alak Manjary Kuari. That being so, we think that the view accepted by Mr. Justice Blackwell is right. It must therefore be held that the signature made by the Sub-Registrar while he made the 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 regraded as the signatures of attesting witnesses. There is thus no evidence to justify the finding that the deed of gift on which the plaintiff relies is proved to have been duly attested. That being so the said deed is invalid and inoperative.
14. The result is the appeal fails and must be dismissed. It is true that the case for the plaintiff deserves some sympathy. But she had her claim adjudicated upon by the two Courts below and by Mr. Justice Lokur in second appeal. Even so, since she has chosen to file the present Letters Patent appeal, we think it is necessary that she should pay the costs of this appeal to the respondent.