R.N. Misra, J.
1. The plaintiff is in appeal against the affirming decision of the learned Addl. Subordinate Judge, Sambalpur, in a suit for declaration of title, confirmation of possession and permanent injunction. The disputed property happens to be 10 decimals of homestead land appertaining to plot No. 444 under Khata No. 109 of village Kuchinda.
2. Admittedly the property belonged to one Narayan. Laxmidhar is said to have died without issues. The plaintiff happens to be Madhusudan's son. Narayan had a son. It is alleged that the son pre-deceased Narayan and thereafter Narayan died. According to the plaintiff the three brothers were joint and as Narayan and his son died the entire property came to the plaintiff by survivorship. The plaintiff applied for mutation. One Daitari Mohanty objected and subsequently managed to carve out the disputed portion of the property into a separate plot in his name. Daitari is said to have died leaving no heirs in 1964. The defendant claiming to be his widow raised a dispute regarding possession of the property. In a proceeding under Section 145 of the Code of Criminal Procedure which was instituted the defendant's possession was upheld. Therefore, the plaintiff came up with the suit.
3. The defendant on the other hand contended that Narayan was not the brother of Madhusudan or Laxmidhar. They were of different branches. Narayan was adopted by one Radha Mohan and long after adoption Narayan acquired the property in dispute together with several other items of property while he was serving as Tahasildar in the ex Bamara State. Upon Narayan's death without leaving any heirs, the property escheated to the State. The agricultural lands were settled with different tenants by the Ruler's administration, but the homestead was settled with the plaintiff and Daitari on the basis of half and half. Salami was separately deposited by the settlees and the property was also demarcated. The property in dispute represents Daitari's portion whereupon Daitari raised further constructions. Upon Daitari's death the defendant as widow succeeded to the property. Daitari also left behind a will in her favour. The defendant claimed that the suit was barred by limitation.
4. The learned trial judge came to find that the property was a self-acquisition of Daitari, and upon his death the defendant as widow and legatee was in possession of the property. The plaintiff had no claim thereto. He accordingly dismissed the suit.
5. The learned appellate judge found that there was no evidence on record to show that Radha Mohan had three sons -- Narayan, Laxmidhar and Madhusudan. The evidence led on the plaintiffs side to fix the genealogy in view of the dispute was found to be very meagre and undependable. The learned appellate judge found that Narayan was working as Tahasildar under ex-State of Bamara. Relying upon a note in Ext. 2, the lower appellate court, however, held that it may be assumed that Narayan and Madhusudan were brothers. He found that in regard to the disputed property Narayan's widow was in possession until her death. The lower appellate court discarded the plaintiff's allegation that under Ext. 4 rent had been paid for the disputed property in 1944. Ex. L supported the defence claim of settlement on half and half basis of the homestead plot-Ext. C evidenced the deposit of the Salami. On the basis of the oral evidence supported by these documents, the learned appellate judge came to hold that the land had been duly settled with Daitari Accordingly he upheld the decree of the trial court and dismissed the appeal. This second appeal is directed against the aforesaid affirming decree of the lower appellate court.
6. In paragraph 9 of the plaint it has been clearly stated that Daitari was not a member of the family of the plaintiff. Once the settlement with Daitari is accepted as a valid one, in view of what has been stated in paragraph 9 of the plaint, the plaintiff could have no right to claim the property in dispute even if the defendant may have no right to it
Mr. Das for the appellant seriously contended that the defendant is not the widow of late Daitari as there was no valid marriage. He also contends that in the absence of due proof of attestation of the mortgage deed and the will, these two documents should not have been received in evidence even for collateral purposes and the courts below are not entitled to draw any support for the defence case from these two documents. Challenge is also offered against drawing evidentiary import from the mortgage deed on the question of possession.
7. As I have already said, the examination of these aspects is indeed notnecessary for the purpose of this appealparticularly when Mr. Das has not challenged the finding of Daitari having become the owner of the property.
As these aspects have, however, been argued at great length I propose to deal with them in brief. First I shall take up the question of the mortgage deed and the will. The registered deed of mortgage dated 19-1-1961 has been marked as Ext. A. Similarly the will dated 11-7-1963 has been marked with objection. But the nature of objection is indicated in a note of the trial court in the evidence of D. W. 3 which is to the following effect:--
'.....Exts. A and B are objectedto by Advocate for the plaintiff on the ground of late filing'.
Section 68 of the Evidence Act provides:--
'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 if 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'.
The proviso indicates that in the absence of specific denial it would be not necessary to call an attesting witness in proof of execution of the document. As was indicated in the case of Komal Sing v. Krishna Bai. AIR 1946 Bom 304 it is not necessary to call an attesting witness unless it is expressly contended that the attesting witnesses had not witnessed the execution. It is true that the words 'specifieally denied' have been variously interpreted. But as has been indicated by some of the commentators, the real rule is if execution is admitted but not valid attestation the fact has to be clearly stated so that the person seeking to rely upon the document would prove attestation. It has been further observed that whether in the pleadings or in other documents at any stage of the trial the specific denial should be in sufficient time before the actual hearing to enable the opposite party to prove execution by production of the attesting witnesses and to lie by until the actual hearing and to raise the objection then should not be allowed. In the present case there is no specific denial because the entire dispute with reference to the documents is their late filing.
8. Mr. Das's next point is with regard to the defendant's marriage. It has been alleged by the defendant that the marriage was in bandhani form. It is true that there is no clear plea of such custom. The defendant seems to be a member of the scheduled tribe and has been found to have lived with the deceased Daitari as his wife, I do not propose to examine the point further in view of the position that even if the defendant be not the widow of Daitari, the plaintiff cannot succeed to the property because he is not an heir of Daitari on his own showing. There is no merit in the second appeal. It is accordingly dismissed. The defendant shall have her costs.