C.B. Bhargava, J.
1. This is a second appeal by the defendant against the judgment and decree of the learned District Judge, Jaipur City.
2. Mst. Bhuridevi plaintiff filed a suit for ejectment of the defendant from immovable property described in paragraph 1 of the plaint. She claimed title to the property on the basis of a registered gift-deed executed by her father on 11th July, 1955 in her favour.
3. The suit was dismissed by the trial court on the ground that the gift-deed was not proved to have been validly executed. The District Judge in appeal reversed that finding and held that the registration and execution of the gift-deed was proved.
4. The plea which needs to be referred is that which is contained in paragraph 2 of the written statement viz;
'Para 2 of the plaint is denied, and the plaintiff is put to the proof of the facts stated therein. Plaintiff must prove that a legal and valid gift has been made to her.'
5. The learned Judge, in my view, was wrong in holding that there was no specific denial of the execution of the document within the meaning of the proviso to Section 68 of the Indian Evidence Act. The defendant not only denied the execution of the document, but required the plaintiff to prove its due execution which includes attestation as well. In Surendra Bahadur Singh v. Behari Singh, AIR 1939 PC 117 the plea raised was:
'The contesting defendant does not admit the execution and completion of the document sued on, nor is receipt of the consideration of the same admitted.'
This plea was regarded by their Lordships of the Privy Council as specific denial of the execution of the document. In the trial court the question of due attestation of the deed was seriously challenged. In these circumstances it cannot be said that the defendant did not specifically deny the execution of the document.
6. It is contended on behalf of the appellant that the learned District Judge has misread the evidence of Narsinghdeo (P.W. 2) and has therefore, wrongly held that the gift-deed was duly attested. The gift-deed is signed and attested in the following manner:
'Signature of Nand Kishore Purohit. (after reading and understanding the gift-deed dated 11-7-55.
Sd/- Bhuridevi Pareek alias Satyavati dated 11-7-55.
Attested by Narain son of Nawalram Brahman Khandelwal Rasta Govind Rajiyan Dated 11-7-55. Attestation.-- Swami Narsinghdeo Saraswati son of Pt. Ram Chandra Sharma Brahman Gaur present address Devrishi Ashram, Mandurg, Fatehram-ka-Tiba, Jaipur, D/- 11-7-55. Under the pen of Harinarain Sharma, document writer Licence No. 5 entered at Register No. 2651 Shabad Sankhya 441'. Nand Kishore donor (P.W. 4) stated that he had executed the document. Narain son of Nawalram (P. W. 1) was examined but he was not asked about his attestation on the gift-deed. Narsinghdeo (P. W. 2) stated that he had attested the gift-deed and identified his signatures on it. He stated that Nand Kishore had signed the gift-deed in his presence and he had signed the document at the instance of Nand Kishore and Bhuridevi. In cross-examination, he stated that the gift-deed (Ex. 1) was not scribed in his presence but it had already been written. All the persons i.e., Nand Kishore, Harinarain Narain and Mst. Bhuridevi had signed the document in his presence. Harinarain scribe (P. W. 5) also stated that Nand Kishore donor had signed Ex. 1 in his presence after it was read over to him. He further stated that he had also signed the document.
7. The only question for determination is whether on this evidence due attestation of the document has been rightly found by the learned District Judge. What is meant by the word 'attested' is stated in Section 3. T. P. Act. The definition was inserted in the interpretation clause by Act No. XXVII of 1926 and made retrospective by Act No. X of 1927. In order to constitute valid attestation the essential conditions are;
1. there must be two attesting witnesses;
2. each must have seen the executant sign or affix his thumb mark to the instrument;
3. each of the two attesting witnesses must have signed the instrument in the presence of the executant.
The statement of Narsinghdeo (P.W. 2) clearly fulfils all the requirements so far as he is concerned. The executant had signed in his presence and he had attested the document at the instance of the executant.
8. The only question is whether attestation of the document by Narain has also been proved by the evidence of this witness. From the order in which the signatures of the executant and the attesting witnesses appear on the document, it will be clear that Narain had attested the document after the executant Nand Kishore and Bhuridevi had put their signatures on it. After the attestation of Narain there is the attestation of Narsinghdeo. Narsinghdeo as already noted, stated that Nand Kishore had signed the deed in his presence and he had himself done so at the instance of Nand Kishore. Further he has stated that Narain, Nand Kishore, Harinarain and Mst. Bhuridevi had all signed in his presence.
9. In my opinion it follows clearly from his evidence that Nand Kishore had signed the document in the presence of Narain and Narain had attested it in the presence of Nand Kishore. In the circumstances of the case, it would not be legitimate to infer that Narain and Narsinghdeo had attested the document on two different occasions. The witness was not cross-examined with regard to the details of attestation. No question whatever bearing on the point, whether both the witnesses had attested the document at one time or at different times, was put to the witness. Having regard to the order in which the signatures appear on the document and the above evidence of Narsinghdeo (P.W. 2) I have not the slightest hesitation in holding that the document was duly attested by both the witnesses.
'Whether an attesting witness signs his name in the presence of the executant is in each case a question requiring full consideration of the whole circumstances. Where a document executed by a Pardanashin lady is attested by the witnesses while the lady is sitting behind a thin curtain and it is clear enough that, if she had minded to see the witnesses sign, she could have done so, even if she did not actually see them through the curtain it amounts to sufficient compliance with the provisions of Section 3. (See Kundanlal v. Mt. Musharrafi Begam, AIR 1936 PC 207)'.
In the case of Naresh Charan Dass Gupta v. Paresh Charan Dass Gupta, (S) 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 add that they signed the will in the presence of the testator. The contention was that in the absence of the evidence, it must be held that there was no due attestation. Their Lordships of the Supreme Court observed that:
'It cannot be laid down as a letter 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 in 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.'
The learned District Judge on the evidence of the above witnesses came to the conclusion that the deed was executed and attested at the same sitting. He also examined the original document and was satisfied that it was executed and attested at the same time and there was nothing on the face of the deed negativing the presumption of due attestation permissible in law. The learned Judge cannot be said to be wrong in his conclusion.
In reaching a decision, the court is not confined to the evidence of the attesting witnesses and according to the circumstances of each case the maxim 'omnia praesumuntur rite esse acta' can be applied. The application of the maxim which was expressed in the following words by Lindley, L. J., in Harris v. Knight, (1890) 15 PD 170 at p. 179, was adopted by Phillimore, J. in In the Estate of Bercovitz, Canning v. Enever, (1961) 2 All ER 481-
'the maxim, 'Omnia praesumuntur rite esse acta', is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability. The) maxim is not wanted where such observance is proved, nor has it any place where such observance is disproved. The maxim only comes into operation where there is no proof one way or the other; but where it is more probable that what was intended to be done was done as it ought to have been done to render it valid; rather than that it was done in some other manner which would defeat the intention proved to exist, and would render what is proved to have been done of no effect.'
Also see Williams on Wills at page 71 Second Edition 1961.
'If a will on the face of it, appears to be duly executed, presumption is in favour of the due execution applying the principle omnia praesumuntur rite esse acta, the force of the presumption varies with the circumstances. If the will is entirely regular in form, it is very strong, but if the form is irregular and unusual, the maxim does not apply with the same force.'
In the present case, the deed (Ex. 1) is absolutely in regular form. It is attested by two witnesses whose signatures appear after the signatures of the executant Then appear the signatures of the scribe. The two attesting witnesses also appeared before the Registrar and identified the executant. In such circumstances the principle underlying the above maxim can be aptly applied in this case.
10. Learned counsel for the appellant strongly relies upon a decision of this Court in Smt. Umrao v. Bakshi Gopal Bux, AIR 1957 Raj 180. In that case there were two attesting witnesses to the deed namely Nathulal and Ramgopal. Ramgopal clearly stated that the executant Ramchander had not signed the will in his presence, nor did he say that Ramchander acknowledged the signature on the will before he attested it. Nathulal also did not say that Ramchander executant had signed the document in his presence or acknowledged before him that he had signed it. In these circumstances it was found in that case that the will was not duly attested. This case is quite distinguishable from the present case.
11. Thus I find no force in this appeal and it is hereby dismissed. In the circumstances of the case parties are left to bear their own costs of' this appeal.
12. Learned counsel for the appellant prays for leave to appeal to a larger bench. The leave is refused.