1. This appeal arises out of a suit for possession of a half share in two plots situate in the city of Lucknow by partition.
2. The facts may be given with reference to the following pedigree:
RUPAN|------------------------------------------------------------------| | |Jeorakhan Nanhun Tulshi = Mt. Mula.| | (Plaintiff)-------------------- ---------------------------- || | | | | | |Maiku Dina Jawahir Ajodhia (Defen- Maiku=Mt. Bal Krishna |dant No. 1) Chhedana (Defendant No. 2) |(Defendant No. 3) |--------------------------------| |Kali Charan Pahlad(Plaintifi No. 1) (Plaintiff No. 2)
3. The plots in suit, namely, plot No. 17 in mohalla Ramnagar, area 3 bighas 3 biswas 4 biswansis 10 kachwansis and plot No. 614 in mohalla Salakganj measuring 15 has 18 bis-wansis 16 kachwansis with certain trees and a well were purchased under a sale deed (Ex. 1) in the name of Rupan and Nanhun jointly on 27th July 1905. Rupan subsequently, gitted his share on 19th September 1S09 to Tulsbi. He stated in the deed that though he provided the purchase money for acquiring the plots, he owned only a half share, that the other half belonged to Nanhun and since Tulshi had no interest in the plots, he was giving him by way of gift his own half share. Rupan's son, Jeorakhan, it would seem, bad already separated.
4. Tulshi'a two sobs, Kali Charan and Pahlad and his widow, Mt. Mula, came to Court seeking possession of plots by partition.
5. The main defence to the case was put up by two persons, namely, Nokhe and Chandi. The former is a transferee from Nanhun's son, Ajodhia, defendant 1 and Bal Krishna, defendant 2. Chandi is a transferee of the interest of the three sons of Jeorakhan. The appeal concerns only two out of the various defences set up by Chandi appellant. These were : (1) that Rupan was the sole owner of the plots in suit by reason of the fact that he provided the entire consideration money, it being contended that the name of Nanhun was entered in the sale deed without any intention to create a title in him, and (2) that the gift in favour of Tulshi was not according to law. On both these points the decision of the Courts below went against Chandi.
6. The contention regarding Rupan's ownership of the entire interest in plots is sought to be founded on the ground that Rupon alone provided the consideration for the sale. The fact, however, that the money for the purchase came from Rupan's purse cannot attract, in the circumstances of this case, the presumption that half of the property though purchased in the name of Nanhun was for the benefit of Rupan. The most important among them are recitals in the deed of gift, Ex. 2, which would seem to indicate that the intention of Rupan in taking the sale deed jointly in his name and in the name of one of his sons was to benefit the latter to the extent of half. There is, of course, no presumption of advancement in India and it may be conceded that ordinarily a purchase by a father in the name of his son unexplained by other facts would be regarded as a benami transaction and the beneficial interest in the property would vest in the father notwithstanding the insertion of the son's name in the title deed, if once it be established that the fund which provided the consideration was that of the father. The source of the purchase money, however, though a valuable test is not the sole criterion. Important clues may be furnished by the surrounding circumstances, the relative position of the parties, their mutual relations and their subsequent conduct or their dealings with or enjoyment of the disputed property. In this case the evidence furnished by the recitals in the deed of gift and the fact that no one questioned the possession of Tulsi and Nanhun during the lifetime of Rupan or after his death in or about the year 1918 till 1940 when Chandi purchased the interest of Jeorakhan in the plots cannot be lightly ignored. To my mind, they point unmistakably to the conclusion that in joining Nanhun with himself in the sale of 1905 Rupan intended that half the property should belong to him. The other half went by gift to Tulsi. Jeorakhan thus got no share in the plots and the only question that remains for consideration is whether or not the deed of gift fails because it was not proved in accordance with law.
7. It has already been mentioned before that the deed (Ex. 2) was executed on 19th September 1909. The document was generally denied on behalf of the appellant and the Court below exercised its powers under Section 90, Evidence Act and raised a presumption in favour of its genuineness. It is urged on behalf of the appellant that the presumption cannot be availed of for the purposes of establishing proper attestation of Ex. 2. This is a wholly untenable position. Section 90 empowers the Court to presume the signatures and every other part of a document So years old which purports to be in the handwriting of any particular person as in that person's handwriting and in the case of a document executed or attested that it was duly executed and attested by the person by whom it purports to be executed and attested. Thus ordinarily the presumption under Section 90, Evidence Act would include due attestation by the persona by whom the document purported to be attested. The contention, however, is that inasmuch as the signatures of the persons who subscribed as witnesses ('gawah shud') were not accompanied by an endorsement to the effect that they saw the executant sign or that they signed in the presence of the executant, it cannot be said that the document was 'attested' within the meaning of the section so as to bring into play the presumption that it was 'duly attested.' In my opinion, this contention is equally futile. There Jean be no doubt that the words, 'duly executed and attested' import that the execution and 'attestation were in accordance with law. The earlier reference in the section to attestation must then be deemed in have been made in the sense in which the word, 'attested' is understood in ordinary parlance or in English Law. The ordinary dictionary meaning of the word, 'attest' is 'to hear witness; to confirm the truth of genuineness of; to testify, certify.' The meaning which is attached to the expression, 'attested' in English Law is that stated by their Lordships in Shamu Patter v. 1. Abdul Kadir Ravathan and Ors. 2. Abdul Rajak Sahib and Ors. 39 I.A. 218, namely, that the person saw the executant sign and then subscribed his name in token of what he saw. See also Mt, Hira Bibi and Ors. v. Ram Hari Lal and Ors. . It is difficult to hold that the word, 'attested' though distinguished from the phrase, 'duly attested' in Section 90, Evidence Act, is intended nevertheless to import considerations, which apply to the use of that word in the Transfer of Property Act. On the plain meaning of the section, if a document 30 years old shows that certain persons witnessed it in token of its execution by the maker of that deed, and it is produced from proper custody, the Court can presume 'due' attestation and if the proof of attestion is rendered necessary by reason of the requirements laid down by the Transfer of Property Act, the presumption will go the whole length of the definition of attestation as given: in Section 3 of that Act.
8. This appeal has no force. It fails and is accordingly dismissed with costs.