(1) The suit out of which this appeal arises was for possession of the suit property. The plaintiff claimed under a gift from one Maritammappa. Defendant No. 2 who alone contested this suit is the brother's wife of the said Maritammappa and who is in possession of the suit property. In her written statement she inter alia stated as follows :
'It is true that the suit land belonged to one Maritammappa Fakirappa Chilapur. The said person has not written and registered the gift deed on Shaka 1867 Parthivanam Samvatsara Aswin Bahul 14. And he never gave the possession of the suit land to the plaintiff. All these are denied by the defendant.'
The further defence raised by the said defendant was that the document was obtained from the said Maritammappa by one Mudiawa, who was in his keeping, by using undue influence. The two main issues in the case were : (1) Does the plaintiff prove that Maritammappa has gifted suit property to plaintiff as alleged? And (2) Do defendants prove that the gift deed was taken from Maritammappa by undue influence and without his knowledge as alleged? Both the Courts found in favour of the defendant on both these points. Hence the present appeal.
(2) It should be mentioned that the witnesses examined in support of the plaintiff's case on the question of due execution were only one attesting witness (i.e., Anantarao, Ex. 61) and the grandmother of the plaintiff Mudiyawwa (Ex. 54). The plaintiff also called on Balavantarao Kulkarni who identified Maritammappa before the Sub-Registrar and who signed in token of such identification. The lower Appellate Court placed no reliance on the evidence of either the said attesting witness Anantarar or on the evidence of the grandmother of the plaintiff Mudiyawwa. The said attesting witness was declared hostile and he was allowed to be cross-examined by the plaintiff.
This witness stated that the executant did not sign the gift deed in his presence and that the gift deed had been brought to him by Mudiyawwa and he did not ask Maritammappa as to whether he had executed any such deed. The lower Appellate Court held on such evidence, and in my opinion rightly, that this witness did not help the plaintiff in proving the attestation of the gift deed. The said Court, as I have mentioned, also did not rely upon the evidence of Mudiyawwa. As for the evidence of Balavantarao Kulkarni, the lower Appellate Court held that all that the said evidence proved, taking it along with the fact of registration of the document, was that the document was executed by the said Maritammappa.
On this state of evidence the lower Appellate Court held that the attestation of the document in question has not been proved. The lower Appellate Court further held that the case of undue influence had been established. For the purpose of disposing of this appeal it would not be necessary for me to go into the question of undue influence. It seems to me that the view taken by the lower Appellate Court, viz. that the attestation of the document in question has not been proved, should be accepted and the suit must fail on that ground.
(3) The learned advocate for the appellant relied on S. 68 of the Indian Evidence Act, and in particular the proviso thereof, and contended before me that as in this case there is no specific denial of the execution of the document by the person by whom it purports to have been executed, it is not necessary to call any attesting witness to prove the said document. The learned advocate's contention in effect was that the document in such a case, provided it is registered, proves by itself.
In other words, his contention was that in such a case it is not necessary to call any evidence to prove the execution and attestation of the said document. I am unable to accept this contention. Section 68 of the Evidence Act reads as follows :
'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 providing its execution, if there be an attesting witness 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, unless its execution by the person by whom it purports to have been executed is specifically denied.'
I am for the moment not considering the question as to whether or not in this case there is a specific denial of due execution of the document in question. In my opinion, even in a case where there is no such denial and where the proviso applies it would be necessary for the plaintiff to prove due execution and attestation of the said document. This proviso does not dispense with proof of the document altogether. The document has still to be proved, although may not be in the manner indicated in Section 68 itself.
It should be noted that under the Transfer of Property Act, the deed of gift can only be valid if it is executed and duly attested by at least two witnesses and is registered. Due execution, attestation and registration are therefore the very foundations on which the validity of a deed of gift depends. The plaintiff will have to prove the same before he can get a decree thereon. All that the proviso states is that it will not be necessary, (if the execution of the document is not specifically denied) to prove the due execution and attestation thereof by calling an attesting witness.
The proviso cannot be construed as meaning that the document will in such a case prove by itself. The next effect of S. 68, in my opinion, is that if the execution of a document of this nature is specifically denied, then an attesting witness to prove the same. But the document all the same will have to be proved. This is also the view which was taken by their Lordships of the Rangoon High Court in the case reported in R.M.A.R.M. Chettyar Firm v. U. Htaw, ILR 11 Rang 26 : (AIR 1933 Rang 6). Chief Justice Sir Arthur Page in his judgment held on this point that in His Lordship's opinion :
'the meaning and effect of S. 68 is that in the case of a mortgage within S. 59 of the Transfer of Property Act it is incumbent upon the party relying upon it to prove the due execution of the mortgage by adducing the evidence of at least one attesting witness in that behalf as laid down in S. 68 of the Evidence Act, provided that unless its due execution, that is to say, its signature by the mortgagor in the presence of two attesting witnesses is specifically denied, the execution of the mortgage deed in the form required by law may be proved 'aliunde' by adducing other evidence in that behalf.'
His Lordship further held as follows:
'the proviso to S. 68 only removes the necessity of calling an attesting witness to prove the execution of the documents therein referred to and does not purport to relieve the party of the necessity of proving a mortgage in the form prescribed under S. 59 of the Transfer of Property Act.'
It would be seen that the view which I am taking in this case was also the view taken in the said Rangoon case.
(4) In a decision of the Calcutta High Court reported in Harinath Ghosh v. Nepal Chandra Ray, ILR (1937) 1 Cal 507, the same view was also taken by Mr. Justice Mitter. His Lordship, in analysing the provisions of the Indian Evidence Act beginning with S. 68 and ending with S. 71, observed as follows:
'Where the execution of such a document is neither admitted by a party nor its execution specifically denied, the law requires the proof of the document but in a less formal manner. (This is the case which is contemplated in the proviso to Section 68). The document has to be proved in such a case but not necessarily by the examination of an attesting witness. This is my view of the proviso which has been added in 1926 to S. 68 of the Evidence Act.'
No decision could be cited before me which has taken a contrary view on this point. The decisions cited by the learned advocate for the appellant do not cover this question. I am therefore of the opinion that 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.
(5) In this connection, reference may be made to a decision of the Privy Council reported in Surendra Bahadur v. Behari , Where the nature of the denial was as follows:
'The contesting defendant does not admit the execution and completion of the document sued on, nor is receipt of any consideration of the same admitted.'
Their Lordships of the Judicial Committee in considering the effect of that denial observed as follows :
'It is clear that Lachman Singh in his written statement pleaded that he did not admit the execution of the mortgage deed, and it appears from the trial the pleader who appeared for Lachman Singh 'hotly contended that the execution and due attestation of the mortgage bond in suit was not proved against his client.' In these circumstances in their Lordships' opinion, it must be held that the execution of the mortgage deed by Mt. Jamna Kunwar was in fact specifically denied by Lachman Singh.' In my opinion the position in this case is much stronger from the defendant's point of view. The defendant in her written statement does not content herself by merely not admitting the execution and completion of the document as was in the privy Council case, but goes further and states that the said person has not gifted away the suit land to the plaintiff and has not got written and registered the gift deed. In my opinion it is clear that the averment in the present case amounts to a specific denial of the due execution as contemplated in the proviso to S. 68 of the Evidence Act. In the result, therefore, this contention of the learned advocate for the appellant mut also fall.
(6) As I said before it is not necessary for me to go into the other question relating to undue influence. This appeal and the suit can be disposed of on the ground dealt with in this judgment.
In the result, therefore, this appeal fails and is dismissed with costs.
(7) Appeal dismissed.