1. Baboo, son of Sukhdeo Das, was a resident of Agra and owned three pucca built houses in mohalla Chipitola. On 12th February 1916 he executed a deed of gift of these houses in favour of his nephew Balbhadra who is the plaintiff in this action. This deed of gift was duly registered. On the date of the execution of the deed of gift Baboo owed about Rs. 400 to Bansidhar, Gulab Singh, Ram Gopal and Balmukund. The deed of gift purports to have been attested by three witnesses, viz., Durga Prasad, Brijbasi Lal and Bansidhar. The document provided that the debt due from the donor was to be paid by Balbhadra the donee. It is not disputed that Balbhadra did not pay this debt. It further appears that there was no transmutation of possession. Balbhadra lived at Benares. Baboo lived at Agra. Baboo continued in possession of the houses notwithstanding the execution of the deed of gift. On 17th September 1917, Baboo revoked the deed of gift in favour of Balbhadra by means of a duly registered instrument. On 15th March 1918, he sold one of the donated houses to a third party with whom we are not concerned in this appeal. On 19th December 1922, he sold the other two houses to his own sister Mt. Lakshmi Bai. Baboo died towards the close of the year 1924. The present action was commenced by Balbhadra donee against Mt. Lakshmi Bai for possession of two houses which were sold to her on 19th December 1922. He also claimed mesne profits at the rate of Rs. 20 a month.
2. The plaintiff alleges that he had acquired an indefeasible right in the houses in dispute under the deed of gift dated 12th February 1916. The plaint has been in artistically drawn up, but this is not the only criticism that it is exposed to. It has been stated in the plaint that the cause of action for the suit accrued on 23rd March 1926. It is hot explained and it is impossible to ascertain how or why the cause of action occurred on that date. The plaint does not state that Baboo in his lifetime had revoked the deed of gift on 17th September 1917, or that he had sold one of the houses to one person and the other two houses to the defendant. These omissions raise considerable doubt about the honesty of the plaintiff's claim. The defendant did not admit para. 1 of the plaint in which it had been stated that Baboo had gifted the houses in dispute to the plaintiff and made him absolute owner with possession and occupation of the same. By this the defendant may have intended to challenge not only authenticity of the dead of gift but its validity under the law. The plaintiff, was in any case, put to a strict proof of its execution and he had to further prove that a valid gift had bean made in his favour by fulfillment of the essential conditions for the creation and completion of the gift in controversy. If the plaint was clumsy, the written statement was not a shade better than the plaint. It was stated that Baboo deceased did not execute any dead of gift of his own accord. It is not clear whether by this statement the defendant intended to admit the execution of the deed of gift in plaintiff's favour. The position is by no means rendered clearer by the alternative plea urged by the defendant that the deed of gift became null and void on 17th September 1917 (when the deed of revocation was executed by Baboo). In this state of the pleadings it is very difficult to ascertain the exact points of disagreement between the parties. It is to be regretted that Mr. Y.S. Gahlaut allowed the pleadings to stand as they are without any attempt to elucidate facts and particulars material to the case. Indeed the matter went to trial without any attempt to tie down the parties to a clear articulation of the facts which were really in issue between the parties. Laxity of pleadings inevitably leads to confusion of the trial, and confusion has happened in this case, which has warped the decision of the trial Court and has hampered that of the Court of appeal,
3. It is not clear whether the defendant intended to admit the execution of the deed of gift in plaintiff's favour. Was it the case of the defendant that Baboo executed the instrument by undue pressure and was therefore not a voluntary agent? The written statement states that Baboo did not execute the instrument of his own accord. No distinct issue on this point appears to have been pressed for. The only issue framed by the Munsif was:
Did Baboo execute any deed of gift in favour of the plaintiff, if so, is he entitled to sue?
4. The execution of the gift is not the same thing as the validity of the gift with due fulfillment of all legal essentials. Again, the proof of the deed of gift under the provisions of the Evidence Act is a very different matter. This distinction has not been appreciated by the learned Munsif. The distinction was apparently present in the mind of the learned District Judge in one portion, but does not appear to have been maintained in the concluding portion of the judgment, for in the latter portion the legal consequences flowing from absence of attestation appear to have been mixed up with the finding relating to execution.
5. The Court of first instance held that the deed of gift was proved by the statement of Durga Prasad, one of the attesting witnesses. The learned Munsif does not set out the material portions of the statement of Durga Prasad nor discuss his statement. The Munsif held that the donee had acquired an indefeasible right to the property and that therefore the donor was not competent to revoke the gift. The judgment does not deal with the question as to whether the gift was revocable by reason of the donee not paying the debts of the donor or whether the gift was absolute or conditional. This was an important question which ought not to have been passed over in complete silence. In juxtaposition with his omission may be noticed a gratuitous finding of the Munsif that Mt. Lakshmi Bai was not a bona fide purchaser for value without notice of the plaintiff's claim. This point did not arise from the pleadings.
6. The learned Munsif decreed the plaintiff's suit for possession and for mesne profits at the rate of Rs. 2-4-0 per month.
7. The learned District Judge has reversed the decision and dismissed the suit.
8. The learned District Judge observes:
The first question taken up in appeal is whether the dead of gift has been proved to have been executed according to law. Under Section 123, T.P. Act, a deed of gift of immovable property must be by registered instrument signed by the person who executed it and attested by at least two witnesses. The deed in question purports to be attested by three witnesses of whom only one Durga Das, has been produced. Durga Das states Baboo put his thumb impression in my presence. Ha recognized his attestation on the deed dated 12th February 1916, and none other witness was present then. Of the two other witnesses on the deed Brijbasi Lal is admitted to be dead and Bansidhar is stated by the vakil of the plaintiff-respondent to be related to the appellant and to be hostile. It is, therefore, impossible for the plaintiff to prove that Durga Das is incorrect when he states that there was no other witness except himself present at the execution of the deed of gift. It has been laid down in 10 A.L.J. p, 159, that a mortgage deed is not valid when the witnesses to the deed were not present at its execution but put their names on the document on the acknowledgment of the executant. In Sahedher Koiri v. Raja Ram  11 A.L.J. 757 it was held that the deed of gift like mortgage is not duly attested unless witnesses signed the deed after seeing its actual execution, a mere acknowledgement of his signature by the donor not being sufficient. It appears clear from these rulings that the deed of gift is not proved to have been duly executed in accordance with the provision of Section 123, T.P. Act, and accordingly the case for the plaintiff must fail on this ground alone.
9. The learned Judge further found that the deed of gift contained reciprocal promises on the part of the contracting parties inasmuch that it contained a condition that the donee was to pay the debts of the donor, that the donee had failed to carry out the condition and that the donor was therefore competent to revoke the gift. Section 51, Contract Act, has been relied upon. The judgment concludes with the observation:
On these two grounds the want of proof of valid execution of the deed of gift, and of the non-fulfillment of the condition by the donee, I consider that the plaintiff's case must fail.
10. Plaintiff has appealed to this Court and the points raised are:
(1) Whether the deed of gift was duly proved?
(2) Whether the gift was conditional and Baboo was competent to revoke the gift for non-fulfillment of the condition?
11. The question has not been raised in the memorandum of appeal as to whether a valid gift was created by Baboo after due fulfillment of the requirements of the law. There can be no doubt that this point was distinctly present to the mind of the learned District Judge and he intended to answer and did as a matter of fact answer the question in the negative. There is reason to think that where he uses the word 'execute,' he does not do this in a technical sense. Although the plea was not definitely taken that there was no gift as it had not been effected in accordance with Section 123, T.P. Act, the learned District Judge was entitled under the circumstances of the case to take cognizance of the question which cut at the root of the subject-matter of controversy between the parties. The provision of Section 123, T.P. Act, is mandatory and the requirements provided therein must be strictly fulfilled. The provision as to attestation was considered by their Lordships of the Judicial Committee to be of the nature of a barrier against perjury and fraud and the barrier should not be removed.
12. Section 123, T.P. Act, provides that:
'for the purpose of making a gift of the immovable property, the transfer must be effected by a registered instrument signed by or on behalf of donor, and attested by at least two witnesses.
13. A similar provision finds its place in Section 59, T.P. Act, which provides for the mode in which mortgages must be effected. The word 'attested' was not defined in the Act. It was defined for the first time in Act 27 of 1926 which received the assent of the Governor General in Council on 3rd September 1926. The present suit was instituted on 30th March 1926. But it should be borne in mind that the amending Act 27 of 1926 could not operate retrospectively on a deed off gift executed on 12th February 1916, by force of Act 10 of 1927.
14. As has been noticed already, the deed of gift bears the signature of three attesting witnesses, Durga Das, Brijbasi Lal and Bansidhar. Durga Das, who alone was examined, deposed that Baboo put his thumb impression in his presence and that the other two witnesses were not then present. Brijbasi is dead. Bansidhar was not examined as he was related to Lakshmi Bai and was said to be hostile to the plaintiff. In Shamu-Pattar v. Abdul Kadir Raouthan  35 Mad. 607 it was held that the attestation of a mortgage-deed within the meaning of Section 59, T.P. Act, must be made by the witnesses signing their names after seeing the actual execution of the deed. The mortgage in this case was made by an instrument dated 30th May 1899. The persons, whose names appeared in the deed as witnesses, affixed their signatures just before the deed was presented for registration, and the executants had not actually signed in the presence of those witnesses. The Subordinate Judge held that the deed had not been properly attested and was therefore void. This view was affirmed by Wallis and Sankaran Nair, JJ: Shama Patter v. Abdul Kader  31 Mad. 215. The Lordships of the Privy Council held that the word 'attested' in the section meant the witnessing of the actual execution of the document by the person purporting to execute it. It necessarily followed that the document had not been attested as required by law, that therefore no valid mortgage was created under Section 59, T.P. Act, and that the document could not be sued on as a mortgage deed. In Radha Shiam v. Chunni  35 I.C. 192, the mortgage sought to be enforced was said to have been executed on 9th August 1905. The mortgagor in his written statement admitted the execution of the mortgage but contended that as the deed had not been properly attested as required by Section 59, T.P. Act, no mortgage decree could be passed in plaintiff's favour. The attesting witnesses were examined, but they deposed that they had not seen the actual execution. It was held that
the document not having been executed in the manner prescribed by Section 59, T.P. Act, did not operate as a mortgage.
15. The rule, which applies with reference to mortgages, is equally applicable to gifts. The phraseology of Sections 59 and 123 is almost identical. Where similar words have been used in two different sections of the same Act, the legislature must be presumed to have used the words in the two sections in the same sense unless there be something in the context to indicate the contrary. The aforesaid rulings therefore are helpful in determining the question as regards the validity of the gift now in controversy; and in view of those cases, no gift was validly created because of the defect in the attestation. In Sahedhar Koiri v. Raja Ram  11 A.L.J. 757 the plaintiff based his claim on an alleged deed of gift, dated 19th March 1907. The lower Courts had decreed the suit on the ground that the deed was duly proved. The point raised before Lyle, J., was that the deed of gift was invalid in law, as it was not duly attested. It was found as a fact that the so-called attesting witnesses did not see the donor actually executing the document but merely heard her acknowledge that she had executed it. Following the Privy Council decision in Shamu Pattar's case it was held that no valid gift was effected inasmuch as the deed of gift had not been 'attested' in accordance with law. Where a deed of gift therefore has been executed before the passing of Act 27 of 1926, but the executant is proved to have signed the document in the presence of only one of the marginal witnesses, there is no attestation of the document in fulfillment of the provision of Section 123, T.P. Act, which insists upon a minimum of two attesting witnesses (who should have actually seen the executant sign the document). The above view appears to have been taken by the other Indian Courts in Rai Ganga Pershad Singh v. Ishri Pershad Singh A.I.R. 1918 P.C. 3, Baijnath Singh v. Mt. Biraj koer A.I.R. 1922 Pat. 514, and Shib Chandra Singha v. Gour Chandra Pal A.I.R. 1922 Cal. 160.
16. The question as to the mode in which a mortgage or a gift can be legally effected ought not to be confounded with the question as to how the mortgage-deed or the deed of gift should be legally proved. The absence of proper attestation invalidates the transaction either as gift or mortgage. Where the executant of the document does not admit its execution, the document has to be proved in accordance with the provisions of Section 68 or 69, Evidence Act, which relates to the mode of proof. Section 68 provides that where a document is required by law to be attested it shall not be used as evidence until one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive. This section has nothing to do with the question about the legality or validity of the instrument itself as an effective document of title if there has been no proper attestation as required by law. Section 69 lays down the rule as to how a document must be proved where no attesting witness can be found. Section 70 obviates the necessity of a formal proof of execution against the executant where the latter admits its execution. It is clear therefore that these sections relate to the mode of proof. In Shib Dayal v. Sheo Gulam  39 All. 241 the mortgage bond in suit purported to have been attested by a large number of witnesses. Only one attesting witness was called, who proved that he saw the mortgagor sign the mortgage and that he affixed his signature as an attesting witness. This witness did not state that any other attesting witness was present on the occasion. It was held by this Court that in the absence of any rebutting evidence the mortgage in suit was sufficiently proved. The question as to whether the mortgage was duly and validly effected was raised in the case, but was not dealt with in the judgment. This decision cannot therefore be treated as an authority for the proposition that where a mortgage bond has been formally proved it is to be presumed that the mortgage had been duly effected in accordance with law. This case moreover is different from the facts of the present case in which it has been found that when Baboo signed the deed of gift the two other marginal witnesses were not present. In Ram Dei v. Munna Lal  39 All. 109 one of the attesting witnesses to the mortgage deed was dead. The other attesting witness was called. He proved that the executant signed the mortgage bond in his presence and that he then attested it. It was not expressly proved that the other attesting witness was not present at the time when the document was signed by the mortgagor. The decision of the case clearly indicates that the learned Judges were considering the question whether the document had been duly proved. They referred in terms to Sections 68 and 69, Evidence Act. It was contended before them that the burden lay upon the mortgagee to prove that the mortgage deed was properly attested and Abdul Karim v. Salimun  27 Cal. 190 was relied on. They distinguished that case on the ground that the question there was whether a document, which had not been signed in the presence of the witnesses, could operate as a mortgage or could be regarded as having been 'attested' within the meaning of Section 59, T.P. Act. The only point was that the mortgage was sufficiently proved according to the requirements of Sections 68 and 69, Evidence Act. The appellant therefore finds no real support for his contention from this judgment.
17. It is clear that the learned District Judge was right in holding that the deed of gift in suit was not 'attested' in fulfillment of the provision of Section 123, T.P. Act, and therefore no valid title passed to the plaintiff.
18. The learned Judge, however, was not right in holding that the execution of the document by Baboo was not proved if by 'execution' he meant the formal execution of the document. The evidence of Durga Das is conclusive on the point and it must be held that the document was formally proved.
19. If the deed in controversy conferred no title upon Balbhadra, it is unnecessary to go into the question of revocation. The deed of gift provides that the donee should pay all the debts of the donor, but it does not reserve any right in the donor to revoke the gift in the event of the debts not being paid. Section 126, T.P. Act, enumerates some of the conditions under which the donor may revoke the gift; but this section is not exhaustive. It must be taken to be settled law that:
if a man will improvidently bind himself up by a voluntary deed, and not reserve a liberty to himself by a power of revocation, a Court of equity will not loose the fetters ho has put upon himself, but ha must lie down under his own folly: White and Tudor's Leading Oases, 6th Edn.p. 353.
20. An express power of revocation upon the donee not paying the debts has not been reserved in the deed of gift. It is possible that such was the understanding between the parties. It is abundantly clear that the donee did not pay the debts. It is equally clear that the donor did not deliver possession of the property to the donee. It is true that where a gift has been created by a registered instrument, delivery of possession is not necessary to complete the gift. But in determining the question as to whether the power of revocation for non-payment of debts had been contemplated, this fact cannot be lost sight of that possession was not delivered. But this was not all. The deed of gift was revoked by a registered instrument dated 17th September 1917. Baboo sold one of the houses on 25th March 1918. No protest was made by Balbhadra. The other two houses were sold to the respondent on 19th December 1922 without! any demur on the part of Balbhadra. The plaintiff did not assert his title to the property till 18 months after the death of Baboo. Under Hindu law, if a person makes a gift to another in expectation that the donee will do some work in consideration of the gift, it follows that if the donee failed to do that which it has conditioned he should do, the gift is revocable: Mahadeo v. Badamo  5 N.W.P. 5. It is arguable that in the absence of an express power of revocation for failure of a condition, the gift cannot be impugned or revoked. It is not necessary to pursue this matter further because in this case no gift was effected in favour of Balbhadra in accordance with Section 123, T.P. Act, and no title ever passed to him.
21. I would therefore dismiss the appeal.
22. I concur.