P.K. Mohanti, J.
1. The second appeal is by the defendant against a decree of reversal.
2. The plaintiff and the defendants are agnates. The defendant executed and registered a deed of gift on 3-6-1968 in favour of the plaintiff in respect of the suit lands; but subsequently he cancelled the same by a deed of cancellation dated 10-3-1970 on the ground that it was fraudulently obtained from him. The plaintiff's case was that the defendant being issueless and a widower was being looked after by him and being satisfied with him, the defendant voluntarily executed a deed of gift which was duly accepted by him and he remained in possession of the properties since the deed of gift. It was alleged that the defendant at the instance of some of the enemies of the plaintiff wanted to dispossess the plaintiff and hence he filed the suit for declaration of title and confirmation of possession, or in the alternative for recovery of possession of the suit properties.
3. The defendant's contention was that in 1968 when he fell ill the plaintiff took him to the Bhubaneswar Hospital for treatment and from there the took him to the Sub-Registrar's Office at. Bhubaneswar for the purpose of execution of a sale-deed in respect of the lands which had been previously mortgaged with him. The defendant under the impression of executing a sale-deed signed the deed of gift without knowing its contents. About two years thereafter, when the plaintiff threatened to oust the defendant from the suit lands, he came to know about the deed of gift and executed the deed of cancellation, on 10-3-1970.
4. The trial court dismissed the plaintiff's suit on the finding that the plaintiff had obtained the deed of gift on 3-6-1968 by practising fraud. On appeal, the learned District Judge differed from the finding of the trial court and came to hold that the deed of gift is valid and binding on the defendant. Accordingly, he decreed the plaintiff's suit.
5. It is urged in this appeal that the deed of gift has not been proved to have been duly attested as required by Section 68 of the Evidence Act and that attestation by the scribe of the document is not valid.
6. According to Section 123 of the Transfer of Property Act, a gift of immovable property must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. The term 'attested' has been defined in Section 3 of the Transfer of Property Act. The essential conditions of a valid attestation are that two or more witnesses must have seen the executant sign the instrument, or have received from him a personal acknowledgment of his signature, and each of them has signed the instrument in the presence of the executant. The deed of gift which has been marked as Exhibit-1 bears the signature of the executant (defendant) and there are the names of two persons who have described themselves as witnesses.
7. Section 68 of the Evidence Art 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 and subject to the process of the Court and capable of giving evidence. This Section contains a proviso 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 Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied. Execution of the deed of gift having been specifically denied, the proviso does not apply to the present case.
8. The scribe of a document may perform a dual role. He may be an attesting witness as well as the scribe, but he will not be so unless he intends to sign the document as an attesting witness. A person can be called an attesting witness when he has witnessed the execution of the document and has put his signature by describing himself as an attesting witness. When a person puts his signatures on the document both as scribe and as attesting witness, the inference is that he functioned both as scribe and as attesting witness. P.W. 1 is the scribe of the deed of gift (Ext. 1), At the end of the writing, he has put his signature describing himself as a scribe and on the right hand margin of each page of the document he has also signed describing himself as an attesting witness. During his evidence in Court he stated that he scribed the gift deed as per direction of the defendant. Then he read over and explained the contents of the deed to the defendant who signed the same in his presence. The above evidence clearly shows that P. W. 1 was also functioning as an attesting witness and. in fact, he has signed the document not only as the scribe, but also as an attesting witness. Mr. Swamy appearing for the appellants strenuously contended that there is a serious lacuna in the statement of P. W. 1 to prove proper attestation inasmuch as he did not say in his deposition that he had signed in the presence of the executant. I am unable to accede to this contention. The document appears to have been executed and attested at the same sitting. There is nothing on the record to show that tile document was executed and attested at different times. PW 1 was not cross-examined with regard to the details of the attestation. No question whatever bearing on the point was put to the witness and the document was exhibited in the case without objection. In the case of Naresh Charan Das Gupta v. Paresh Charan Das Gupta, AIR 1955 SC 363 with regard to a Will the two attesting witnesses stated in examination-in-chief that the testator signed the Will in their presence and that they attested the signatures. They did not state that they had signed the Will in the presence of the testator. It was contended before their Lordships that in the absence of such a statement, it must be held that there was no due attestation. Their Lordships observed (at p. 367):--
'.........It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence ...... ......'
In the facts and circumstances of the case and in the light of the principles laid down by Supreme Court, I find no force in the contention that the requirements of Section 68. Evidence Act have not been satisfied in this case.
9. As mentioned earlier, no objectionwas taken by the defendant to the modeof proof of the deed of gift when it wasexhibited by the trial court. No objection having been taken at the relevanttime, the defendant cannot now be beardto object that the document has not beenduly proved. I am fortified in this viewby the decision of the Privy Council inGopal Das v. Sri Thakurji, AIR 1943PC 83, wherein it was observed asfollows:--
'......Where the objection to be taken is not that the document is in itself inadmissible but that mode of proof put forward is irregular Or insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof .........'
16. The lower appellate court, on a careful appraisal of the evidence on record, has come to the finding that the defendant had executed the impugned gift deed knowingly and with full knowledge of the contents thereof. The allegation of fraud has been disbelieved and deed of the gift has been held to be valid and binding on the defendant. This is a finding of fact which is immune from attack in second appeal.
11. There is, therefore, no merit in this appeal and it is accordingly dismissed with costs.