1. These two second appeals arise out of the judgments and decrees passed by the Second Additional Munsiff, Hubli and the Additional Civil Judge, Hubli, in L.C.S. Nos. 80 of 1966, L.C.S. 155 of 1966 and Regular Appeal 158 of 1967 and Regular Appeal No. 157 of 1967 respectively on 5-10-1967 and 25-6-J975 respectively.
2. The parties are the same to these appeals. The plaintiffs are the appellants and the defendants are theRespondents. Subject matter in L.C.S. No. 80 of 1966 is house bearing Municipal No. l02231/A and subject matter in L.C.S. No. 155 of 1966 is house bearing Municipal No. 10223/2 in Ward No. III of Hubli City. The pleadings are the same in both the suits. Therefore, common evidence was recorded in the Trial Court and the suits were disposed of, by a common-judgment. Similarly, the two regular appeals were disposed of by a common judgment.
3. In view of the aforementioned facts, these two appeals are disposed of by a common judgment.
4. The undisputed facts are that the two suit properties originally belonged to one Bhimappa, who died in the year about 1933. In all, he had six sons, namely, Manappa, Akhandappa, Basavanthappa, Hanumanthappa, Devendrappa, Shankarappa and Kuberappa. Manappa, Akhandappa, Shankarappa and Kuberappa died issueless. OneBhimarayappa and Somarayappa are sons of Basavantappa. Murari and Gangavva are son and daughter of Hanumantappa. Defendants 1 and 2 are the sons of Devendrappa.
5. According to the plaintiffs, there was a Partition between Murari and the other members of the joint family in the year 1933. The suit properties fell to the share of Murari as evidenced by the registered partition deed dated 26-5-1933. Murari died issueless and therefore, his sister Gangavva succeeded to the suit Properties. She executed a registered gift deed on 5-5-1952 in favour of the plaintiffs who were minors then. One kakshmibai, examined as a witness on behalf of the plaintiffs, was residing in the suit property as a tenant under Gangavva and she continued to do so till July, 1954. She vacated the house in July, 1954 and occupied another house belonging to one Kempanna. As the plaintiffs were minors, the defendants took advantage of that fact and forcibly occupied the suit properties in December, 1954. Thereafter, they leased the properties to defendants 3 and 4, though they had no right to theproperties, and therefore, the plaintiffs were entitled to a decree for possession of these properties.
6. Defendants 1 and 2 contended that there was no partition between Murari and others, in the year 1933. The suit properties were not allotted to the share of Murari, the alleged partition deed is a bogus document and therefore,Gangavvasister of Murari did not succeed or inherit these properties. The gift deed relied upon by the plaintiffs is an invalid document and as such, no title passed to theplaintiffs. They have been since long in possession of the property in their own right. The plaintiffs relied on aPhotostat copy of the registered partition deed dated 20-5-193(sic), the original gift deed dated 3-5-1952, CTS extracts pertaining to these properties showing change of katha in the name of the plaintiffs, soon after the registration of the said gift deed and other documentary evidence particularly Ext. 36 and Exts. 148 to Exts. 152. Ext. 36 has been relied upon to show that a sister of the plaintiffs had died in one of the suit houses thereby leading to a conclusion that the plaintiffs were in possession of the property in question. Exts. 148 to 152 are the receipts for having paid municipal tax in regard to the suit house that too by the plaintiffs. They also relied on the evidence of plaintiff No. l who was examined as Pw. 1 and two other witnesses who were examined as Pws. 2 and 3. Pw. 3 is Lakshmibai, who it may be remembered, was a tenant uptil July, 1954 as made out in the plaint. Pw. (sic) is said to be one of the attesting witnesses to the gift deed. Defendants relied on documentary evidence consisting of ground rent receipts Exts. 113 to 137, Ex. 138 - a notice issued by the Municipality against them demanding tax and Exts. 57 to 93 which are municipal tax receipts showing that the defendants had paid the taxpertaining to these properties. All these documents, according to the defendants, show that during the years 1947 to 1953, 1964 and so on, they have been all along in possession of the suit properties and they have met the demands from the Municipality in regard to the ground rent, municipal tax etc. They contended in regard to the CTS extracts, that the plaintiffs in collusion with the officials of the City Survey Department, had created those entries.
7. The two courts below have, on the basis of Exts. 57 to 93, Exts. 94 to 112 and Exts 113 to 138 concluded that the documentary evidence was voluminous to show that the defendants were in actual physical possession of the suit properties from the said relevant years namely 1947 onwards and so on. They have not acted on Ext. 36 and Exts. 148 to 152 in concluding that the fact one of the sisters of the plaintiff had died in the said house, did not lead to any definite conclusion in regard to possession and that the very receipts at Exts. 148 to 152 showed that the katha of the suit property was in the name of the defendants 1 and 2, but the municipal tax had been paid through the hands of the plaintiffs, and therefore, those receipts, on the other hand, supported the case of defendants 1 and 2. The two Courts below have further on held that though thePhotostat copy of the registered partition deed shows that the original deed had been executed more than 30 years earlier, Section 90 of the Evidence Act would not be attracted to the photostat copy of the deed, in the absence of the original deed and that execution of the gift deed relied upon by the plaintiffs had not been gone into to prove that it is in accordance with the provisions of law and therefore, no title can be said to have passed legally to the plaintiffs.
8. I will take up, for consideration, in the first instance, the question as to whether the gift deed relied upon by the plaintiffs has been erroneously rejected by the two lower Courts.
9. It is seen from the document itself that it has been registered and there is endorsement of the Sub-Registrar that theexecutants has admitted the execution in his presence and she was identified to the satisfaction of the Sub. Registrar. P.W.2 has sworn that he has attested that gift deed. He has nextly sworn that Gangavva requested to him to attest the gift deed and therefore, affixed his signature, and said, he affixed his signature. He has nowhere stated that he saw Gangavva affixing her signature to the gift deed or that Gangavva had acknowledged to him that she had affixed her signature to the gift deed. He has nextly stated that another attesting witness also had attested the gift deed.
10. Section 123 of the Transfer of Property Act specifically reads as follows :
'For the purpose of making a gift of immoveable 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.
For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
such delivery may be made in the same way as goods sold may be delivered. The first part of Section 123 of the Transfer of Property Act makes it compulsory that a deed purporting to a make a gift of immoveable property must be registered and signed and attested byat least to witnesses.
11. Section 3 of the Transfer of Property Act defines 'attested' as follows:
'attested' 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 sing the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in thepresence 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 noparticular form of attestation shall be necessary.'
12. It has been already pointed out that the gift deed in question has been registered and the necessary endorsements are made by the Sub-Registrar. Pw-2 has sworn that he had attested the deed. But he has nowhere stated in his evidence that the executrix namely Gangavva affixed her signature or mark to the gift deed in his presence or acknowledged to him that she had affixed her signature or mark to the gift deed. Therefore his evidence does not satisfy the ingredients of definition 'attested'. Hence, it will have to be held thatattestation by Pw. 2 and another person as required by law, has not been proved. Therefore, though Gangavva appears to have admitted execution of the gift deed as is seen from the endorsement of the Sub-Registrar, it will have to be held that the gift deed, though registered, does not satisfy theingredients of Section 123 main part. When that is so, no title in law can be said to have passed from Gangavva to the plaintiffs, even assuming that Gangavva did have such title to transfer.
13 Sri Ajit Gunjal, Learned Advocate appearing on behalf of the appellant pressed into service the proviso to Section 68 of the Indian Evidence Act. 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 of proving 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.'
In this connection, a reference is required to be made to the contentions raised by the defendants to find out,whether, there is specific denial as required by the proviso because, the deed in question is not a will. The defendants, have, throughout their written statement, denied the case of the plaintiffs not only generally, but also have specifically contended that an invalid, inoperative deed has been secured by the plaintiffs and the plaintiffs, in collusion with the officials of the City Survey Department, had got the katha changed in their name in regard to the suit properties. The question that arises for consideration is, whether said denial can fall within the meaning of the words, that is, 'specifically denied' occurring in the proviso to Section 68 of the Indian Evidence Act. This difficulty will no longer remain, in view of what the Privy Council has observed in Kunwar Surendra Bahadur Singh and Othersv. Thakur Behari Singh and Others :
'Learned Counsel for the appellants relied upon the terms of S. 68.Evidence Act, and especially upon the proviso, and submitted that it was not necessary for the plaintiffs at the trial to call an attesting witness, inasmuch as the mortgage deed bad been registeredand the execution thereof by Mr. Jamma Kunwar had not been specifically denied by Lachman Singh.The Lordships cannot accept that contention. 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 judgment of the Subordinate Judge that at the trial the pleader who appeared for Lachman Singh 'hotly contended that the execution and dueattestation of the mortgage bond in suit was nor. proved against his client'. In these circumstances, in their Lordships' opinion, it must be held that the execution of themortgage deed by Mt. Jamma Kunwar was in fact specifically denied by Lachman Singh'.
Therefore, I have no hesitation in holding that the argument of Sri. Ajit Gunjal does not have force and has to be rejected.
14. When it is found that the registered gift deed has not in law vested plaintiffs with the requisite title over the suit schedule properties, the plaintiffs have to fail irrespective of the question whether there had been or not in fact apartition between Murari and other coparceners in the year 1933 as per the original registered deed, the photostat copy of which has been produced.
15. Even in regard to the photostat copy, the law as it stands is found in the decision in Sital Das-v.- Sant Ram and Others : AIR1954SC606 . There Lordships have laid down that the presumption available under Section 90 of the Indian Evidence Act does not apply to a copy of a document to hold that due execution of the original has been established. In thisdecision, reliance has been placed on the decision in equivalent to 1966 Indian Appeals, page 1980.
16. The questions of law that have arisen in these appeals are the ones that have been dealt within the earlierparagraphs. The other questions are question of facts on which theCourts-below have recorded concurrent findings in regard to possession of these properties by the defendants on the basis of the documentary evidence relied upon by both the sides. I do not think it proper to interfere with the findings of the two courts below, as the conclusion on facts are concurrent.
17. In view of the foregoing, these appeals are dismissed.