V. Ramaswami, J.
1. In Mayuram, Thanjavur District, there is a Droupathy Amman temple with other subsidiary deities staged to have been founded by the ancestors of the parties to this litigation more than a century and a half ago. In and around this temple, there has been large extent of open ground, which, in the course of time and by reason of its situation abutting the main road, became valuable and is now stated to be fetching a good income. The temple and its affairs were in the management of eight families. One family is stated to have become extinct long long ago. There were disputes and civil proceedings in courts between the families regarding the management of the temple and its properties. By 1894, there were only seven families, which were entitled to the management. Six of the families filed O. S. No. 370 of 1894 on the file of the Court of the (District Mun-sif, Mayuram, against one Kuppuswami Padayachi representing the seventh family to establish their right to turn management. The dispute was referred to arbitration and in terms of the award made by the arbitrator, a decree waspassed on 28-2-1895 in that suit. The award specified that each of the families should enjoy the turns in the order in which they were ranged in that suit. One of the turn holders sold his rights under the decree in favour of one of his grandsons through a daughter. The alienee got into possession and disputed the rights of the other turn holders which again led to the filing of O. S. No. 95 of 1913 on the file of the Subordinate Judge, Mayuram. The rights of the seven families as turn holders was again confirmed in the judgment which is marked as Ex. A-1 in this case. There is no dispute that each turn holder was to be in possession of the temple and the management of its properties for a period of two years. These are the admitted and common facts. The sure was filed by the appellant herein for a declaration that he is entitled to the turn of the first family in addition to the turn as the turn-holder of the fourth family and to substitute himself as a party in O. S. No. 96 of 1913 on the file of the Sub-Court, Mayuram, as a representative of the first family turn-holder thereto and get the rights secured to the first family under that decree. The second, third, fifth, sixth and seventh family turn-holders, the three other brothers of the plaintiff forming the fourth family and the two daughters' sons of Govinda Padayachi, the first family were the defendants in the suit. The plaintiff's case was that by a registered gift deed dated 19-8-1920 Govinda Padayachi, the first family turn-holder conveyed his right to hold and enjoy his turn-management of the temple and its properties and the right to enjcy the income for two years to the plaintiff. When the turn-management came in 1939, he filed E. P. No. 61 of 1939 in O. S. No. 95 of 1913 to recognise his right to the office by reason of the assignment thereof under the deed of gift aforesaid. The daughters' sons of Govinda Padayachi, who are defendants 9 and 10 in this suit, also applied in E. P. No. 31 of 1940 to be recognised as persons entitled to the Poojari office and its management as the legal heirs of Govinda Padayachi. These petitions were dismissed by this court confirming the orders of the Courts below on the ground that the question of claim to Office as Poojari and the temple properties has to be determined only on a regular suit and not in an execution petition. This suit was filed by the plaintiff after the said order of this Court.
2. The main dispute in this case related to the truth and validity of the gift deed dated 19-3-1920. In the written statement filed by the second defendant it was contended that the gift deed was not executed in accordance with law, that it was brought about by undue in- fluence, and that it was not a gift deed in fact, but it was for consideration. He also contended that the gift deed was invalid in law and the plaintiff could not claim any right on the strength of the same. The question of truth and validity of the gift deed is the only one that now survives for consideration in this appeal. The trial court held that the gift deed is neither true nor valid and the plaintiff did not derive any right to manage the turn of the first family by virtue of that document.
3. The first question that arises for consideration in this appeal is whether the gift deed has been proved to have been duly executed as required by law. That the gift relates to immovable property, in addition to the Poojari right is not in dispute. Section 123 of the Transfer of Property Act states that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Section 3 of the Act defines what 'attested' means. It states that it means attested by two or more witnesses, each of whom has seen the executant sign or affix his mark to the instrument or has seen some other person sign the instrument in the presence and by the direction of the executant. It is not ne-cessary that more than one of such witnesses shall have been present at the same time and no particular form of attestation shall be necessary. It is clear, therefore, that in order to make a gift deed valid, the attesting witnesses should have seen the executant sign or affix his mark to the instrument. The due execution of the document was disputed by the defendants and the legal representative of the deceased not only in those proceedings, but in the earlier execution proceedings filed in 1939. It is therefore, necessary to prove the due execution-One of the attestors was examined in the execution proceedings and his evidence has been marked in this case as Ex. A-7 as it is stated that he is dead. In addition to this, the plaintiff has examined himself as P.W. 1. In his evidence as P.W. 1, the plaintiff has stated that the right of the first family has been transferred to him by the gift deed and Govinda Padayachi put his thumb mark in the same. He also stated that it was duly executed and attested. In Ex. A-7, one of the attestors has stated that Govinda Padayachi executed the gift in favour of the plaintiff, that he attested it and that Govinda Padayachi signed his name in his presence. This is ail the evidence that is available. We are afraid that this evidence does not prove the due execution and attestation of the document.
What is required to be proved under Section 123 of the Transfer of Property Act read with the definition of the word 'attested' is that each of the witnesses had seen the executant sign or affix his mark to the instrument or has received from the executant a personal acknowledgment of his signature or mark and it is not enough if one of the witnesses alone comes and speaks to the execution. It is true that Section 68 of the Evidence Act does not require both the attesting witnesses to be examined for proving its execution. We are of the view that that section does not absolve the party relying on a document when the execution is denied to prove that each of the witnesses had seen the executant sign or affix his mark or has received from the executant a personal acknowledgment of the signature or mark. This requirement could be proved even by a single witness, who might speak to the fact that each of the witnesses, who had attested, had seen the executant sign or affix his mark or received the confirmation from the executant. But that does not mean that when a witness speaks that he had seen the executant sign or affix his mark, it is not necessary to prove that the signing and affixing of the mark of the executant was in presence of the other witness as well.
This view is also supported by the ratio of the judgment in Roda Fromroze v. Kanta Varjivandas : AIR1946Bom12 . The question, there for consideration was whether a will had been proved to have been duly executed. One of the witnesses to the Will alone was examined and he spoke only to his attesting the document after seeing the executant sign. The other witness was not examined. Section 68 of the Evidence Act was relied on in support of the contention that it is enough if one of the witnesses is examined. After referring to Section 63(c) of the Indian Succession Act, 1925, which is in pari materia with the definition of the word 'attested' in Section 3 of the Transfer of Property Act, the Division Bench of the Bombay High Court held that the person propounding the Will has got to prove that the Will was duly and validly executed and that must be done by not simply proving that the signature on the Will was that of the testator but by proving that the attestations were also properly made as required by Section 63(c) of the Indian Succession Act. In order to comply with Section 63(c) of the said Act each of the witnesses must be shown to have seen the testator either sign or affix his mark The effect of Section 618 is not that if one attesting witness could prove that the testator had acknowledged his signature to him, it is not necessary that the acknowledgement by the testator before the other attesting witness need be proved. All that it means is that if two attesting witnesses had signed in each other's presence, it is not necessary to examine both of them to prove that they had received acknowledgment from the testator. If the attestations to the testator's signature were not made at the same time, it is necessary to prove that both the persons, who put down their attesting signatures on different occasions, had done so on the acknowledgment of the testator. The position is the same ever, in regard to gifts, in view of Section 123 of the Transfer of Property Act read with the definition of the word 'attested' in Section 3 of the Act. Accordingly, where a gift duly signed by the donor was attested by two witnesses not proved to have done the same in the presence of each other, the evidence of one of the attesting witnesses is not sufficient to prove the execution of the gift deed. There is no evidence in this case that the other witness is alive or not. We are also unable to rely on Ex. A-7, and the evidence of P.W. 1. The original gift deed Ex. A-2 does not contain the signature or the thumb mark of the executant Govinda Padayachi. The document only contains a dash, which is described by the scribe as the mark made by the executant. But P.W. 1 states that Govinda Padayachi put his thumb mark in the gift deed and in Ex. 7 it is stated that Govinda Padayachi signed his name in his presence. These statements, therefore, could not be true. It is seen from the execution proceedings that the grandsons of Govinda Padayachi denied the execution. It is also in evidence and it is admitted by the plaintiff in his deposition as P.W. 1 in the execution proceedings that even after the execution of the gift desd Govinda Padayachi enjoyed the first turn, which came before his death. Thus, he himself had not treated the document as a valid and effective one and did net give effect to it. In the face of this, it was the duty of the plaintiff to have proved the due execution, but he had failed to do so.
4. The learned counsel for the appellant then relied on Section 90 of the Evidence Act and contended that the document was executed on 19-8-1920 and by the time this suit was filed in 1966, more than 30 years have elapsed attracting the presumption that the document was duly executed and attested by the person by whom it purports to have been executed and attested. As has been held by this court in Kamaswami Goundan v. Subbaraya Goundan AIR 1948 Mad 388 and a series of other decisions, the rule in Section 90 is not an absolute one and even in cases where the document is produced from proper custody, the court has a discretion to draw the presumption referred to in the section or require the proof of execution. The section itself states that the court may draw the presumption referred to in that section and not that 'it must draw the presumption'. As pointed out by this Court in AIR 1946 Mad 383 it would be most dangerous to draw the presumption that a document was genuine merely because it was 30 years old and came from proper custody. The court must have regard to the evidence and surrounding circumstances and apply its mind as to whether the presumption will have to be drawn or not. We have in this case the following facts which make us feel that we cannot draw the presumption under that section. As already stated subsequent to 19-8-1920 on which date the document is said to have been executed Govinda Padayachi had a turn during his lifetime and that was not given to the plaintiff. It is also in evidence that there was a dispute relating to the turns sometime in 1931. In that proceedings the ninth and 10th defendants, herein, were impleaded as the legal representatives of Govinda Padayachi and though the plaintiff was also a party to those proceedings, he did not claim to be impleaded as the person entitled to the turn-right of Govinda Padayachi as per the Rift deed instead of the ninth and 10th defendants. When for the first time, the plaintiff claimed his rights under the gift in E. P. No. 61 of 1080 the ninth and 10th defendants and the other turn-holders disputed the genuineness and validity of the gift deed and those proceedings were pending as late as 1852. This suit itself was filed on the dismissal of E. P. No. 61 of 1939 directing him to file a regular suit to establish his right. Therefore, right from the beginning we see that this document was in dispute and in those circumstances, we are unable to draw the presumption under Section 90. We are, therefore, of the view that the gift deed had not been proved to have been duly executed.
5. The defendants also raised the contention that Govinda, Padayachi could not have been a willing party for the execution of the document and that it was obtained by undue influence and coercion. The defendants themselves have not examined any witnesses, but in cross-examination of P.W. 1 they have obtained a significant admission, which is to the following effect:--
'At the time of Exhibit A-2 and even prior to that for five or six years Govinda Padayachi was living with me depending upon me for his maintenance and upkeep. His two daughters were at Vadakattalai at the time of Ex. A-2, and he died in their house. Govinda Padayachidid not obtain the consent of his daughters for executing Exhibit A-2, the gift deed.'
Though this passage may lead to an inference that the document must have been executed by undue influence and coercion, we are not willing to base our judgment on the ground that the document was executed under undue influence. We would rest our judgment on the other grounds stated herein.
6. There is evidence also that the gift deed was not given effect to at any time. During the lifetime Govinda Padayachi himself enjoyed his turn in spite of the turn coining after the date of execution of the gift deed, and at the tune of the next turn in 1939, the plaintiff's right was disputed and he did not enjoy the same. In fact, till he died the plaintiff had not succeeded in establishing his right and, therefore, it could not be stated that the gift deed was given effect to at any time.
7. The next point that arises for consideration is whether the gift deed is valid in law. The learned counsel for the appellant contended that Govinda Pada-yachi had no male issues, that the lineal male descendants alone will be entitled to claim office of poojari and the management of the temple and its properties by custom and practice and usage governing the devolution of rights, that as a turn-holder, the plaintiff was next in line of succession and, that, therefore. Govinda Padayachi had the authority and right to give away his rights to the poojariship and its emoluments and the right of the management of temple and its properties to the plaintiff by gift. The learned counsel further contended that the trusteeship in this case is coupled with an interest in immovable properties because as a turn-trustee, he is entitled not only to be in possession and management of the temple and its properties but also to enjoy the income derived by him as poojari and the income from properties. It is not necessary for us to consider whether the plaintiff or the turn-holders have any right to the income from properties of the temple or any portion of it, but we would proceed on the assumption that the right claimed in this case is not a bare right to office of the trusteeship but it is one coupled with an interest in the properties. The learned counsel relied on the decision in Prayag Doss v. Govindacharlu : AIR1936Mad320 and Alasinga v. Venkatasundarsana : AIR1936Mad294 in support of his contention. In the first of these cases, it was held that an alienation of the office of archaka to one in the line of heirs, not for consideration and not in any way opposed to or inconsistent with the interest of the insti-tution is not invalid and in the latter case it was held that where a family is holding the religious office of a temple, a family arrangement or a partition entered into by the several branches of the family must be given effect to so long as the interests of the trust are not imperilled. In Venkataraman v. Thangamma, : AIR1972Mad119 to which one of us was a party, it was held that a gift of an office of a trustee in favour of the next or immediate heir is valid, and also that it is competent to a heir of the founder of a trust in whom the trusteeship has vest-ed owing to the failure of the line of the original trustee, to create a new line of trustees.
8. The reason for restricting this right to cases of gifts in favour of the sole and immediate heir of the transferor and not of gift in favour of one of the next heirs in the line of succession and transfers for consideration is not far to seek. To permit a transfer for consideration would, as stated by this court in Kuppa Gurukkal v. Dorasami ILR (1883) Mad 76 lead to the public mischief in inducing needy incumbents of hereditary offices who desired to sell them to give a dishonest recognition to qualifications, which, in fact, were not the qualifications demanded by the nature of the office. In the case of the choosing one in the line of succession, as observed by this court in Narayana v. Ranga ILR 1892 Mad 183 the alienor might be under the temptation to make the office the subject of bargain and thereby defeat the intentions of the founder. Thus the alienation of a religious office would not be valid, if made in favour of any person other than the sole and immediate heir of the transferor.
9. Thus Govinda Padayachi in this case should be said to have had limited authority of transferring his rights by way of gift. In the instant case, the decree passed in terms of the award in O. S. No. 379 of 1894 is not produced. It is that decree that settled the claim of management. It is from the terms of that decree one could find out whether there was any failure in the line of original trustees and whether Govinda Padayachi's daughters or his daughters' children could not claim any right of management. It is only when there is a failure in the line of original trustee that the last holder would have any authority to create a new line of trustees. Even in cases where there is no failure in the line of succession, the trustee may also alienate his rights in favour of the person next in line of succession. In such circumstances, it would be in the nature of surrender of his right and acceleration of the succession. The learned counsel for the appellant contended that since the right of Govinda Padayachi could not devolve on his female heirs or the sons of his daughter, the other turn trustees shall be deemed to be next in line of succession, and the plaintiff being one among the other trustees, the gift deed was validly executed in his favour. We are unable to agree with this contention of the learned counsel, if the other turn-holders are to be considered next in the line of succession and Govinda Padayachi wanted to donate his rights, he could do so only in favour of the entire body of the remaining turn-holders and it is not open to him to choose one among them and confer the benefit. The learned counsel for the appellant alternatively contended that the plaintiff is the sister's son of Govinda Padayachi, and as he was at the time of the death of Govinda Padayachi next in the line of succession under Hindu Law, the gift deed in his favour was valid. Here again we have evidence to show that the plaintiff has three other brothers. On the principle that the officeholders cannot choose one among the number of heirs next in the line of succession and confer absolute benefit on him depriving the others succeeding under law, the gift in favour of the plaintiff alone also could not be sustained. Therefore, in any view of the matter the deed conveyed no valid right title or interest in favour of the plaintiff. No other point was argued in this appeal.
10. The appeal accordingly fails and it is dismissed with costs.