R. Sengottuvelan, J.
1. This Second Appeal is filed by the Plaintiff in O.S. No. 282 of 1975 on the file of the Court of the District Munsif of Vridhachalam, challenging the legality and correctness of the judgment and decree of the Subordinate Judge of Chidambaram in A.S. No. 39 of 1977.
2. The facts of the case are briefly as follows:
3. The suit property of an extent of 1 acre and 64 cents of agricultural land and other properties originally belonged to one Sepperumal Konar alias Kulla Konar. He died in the year 1951 leaving behind him his wife Alamelu and three daughters, viz., Kuppayee the mother of the Appellant, Vembayee and Parvathiammal (the first defendant in the suit). To discharge the debt payable by Kulla Konar, some of his properties were sold by Alamelu and her three daughters by means of the sale deeds marked as Exs. B. 1 and B. 2. Vembayee, one of the daughters of Kulla Konar, died intestate in the year 1953. The case of the appellant is that Parvathiammal was married in a well-to-do family at Irusalakuppam village whereas Kuppayee, the mother of the appellant, was married to one Duraikannu Konar who comes of a Poor family. The case of the appellant as set out in the plaint is that Parvathiammal relinquished her right in the family properties and that Alamelu Ammal was in possession and enjoyment of the remaining properties left by Kulla Konar in her own right and became the absolute owner according to the provisions of the Hindu Succession Act, 1956. She executed a settlement deed Ex.A. 1 in respect of the suit properties in favour of the appellant when she was a minor represented by her guardian father Duraikannu Konar and possession of the suit property was also delivered by the said Alamelu Ammal in favour of the appellant. The patta for the suit property was also transferred to the name of the appellant and the appellant had been in enjoyment of the suit property ever since the date of Ex.A. 1 viz., 22.2.1961, by paying kist. By absolute enjoyment of well over the statutory period the appellant had also prescribed title to the suit property by adverse possession. The respondents 1 and 2 and Parvathiammal attempted to 'trespass into the suit property by setting up title in themselves and hence the appellant came forward with the suit O.S. No. 282 of 1975 for declaration and injunction or in the alternative for possession of the suit property. The case of the first respondent (second defendant) and the predecessor-in-title of the third respondent (first defendant) as set out in the written statement are as follows:
4. The fact that the suit property and other properties originally belonged to one Kulla Konar is admitted. He died intestate leaving his wife and three daughters. After the death of Kulla Konar, his wife and his three daughters were dealing with the properties left by him in their own right and executed sale deeds Exs. B.l and B. 2 to discharge the debts of Kulla Konar, Vembayeee one of the daughter of Kulla Konar died subsequently. Since Alamelu Ammal relinquished her right in the properties left by Kulla Konar, Kuppayee Ammal, the mother of the appellant and Parvathiammal became the owners of the said properties and they effected an oral partition in the year 1955 by which the eastern half of the suit property was allotted to the share of Parvathiammal while the western half share of the suit property was allotted to the share of the mother of the appellant and they have been in enjoyment of the property separately by paying kist. Alamelu Ammal never enjoyed the suit property at any time after 1955. Hence she has no manner of right to execute the settlement deed Ex.A. 1 dated 22.2.1961 in favour of the appellant. The alleged execution of the settlement deed by Alamelu Ammal is false and there was no necessity for the said Alamelu Ammal to execute the said settlement deed. Parvathiammal had sold the northern 33 cents out of the eastern share of the suit property allotted to her to the first respondent as per Ex.B. 3, dated 6.7.1972, and the first respondent was put in possession of the said extent of 33 cents. The western half of the suit property had been in enjoyment of the second respondent as a waramdar from 1968. Parvathiammal had been in absolute possession of the eastern half share of the suit property in her own right continuously and uninterruptedly, and as such she has perfected title by adverse possession of the same. The second respondent who is the third defendant in the suit filed a written statement to the effect that he is a waramdar of a portion of the suit property and in other aspects he adopted the written statement filed by the first respondent and the predecessor-in-title of the third respondent.
5. The trial court on a consideration of the oral and documentary evidence let in before it came to the conclusion-
1. that there was no relinquishment by Parvathiammal in favour of Alamelu Ammal as contended by the appellant.
2. that on the death of Kulla Konar in the year 1951 his properties devolved upon his wife Alamelu Ammal, who according to the then law was entitled to a limited estate;
3. the fact that Alamelu Ammal, along with her three daughters namely Kuppayee, Vembayee and Parvathi Ammal, had executed two sale deeds in respect of the properties left by her husband, marked as Exs. B.l and B. 2 to discharge the debts of Kulla Konar will not in any way clothe the three daughters with any right in the property during her life time.
4. that the case of the first respondent and the predecessor-in-title of the third respondent that after the death of Vembayee, Alamelu Ammal relinquished her rights and as such Kuppa yee and Parvathiammal became entitled to the suit property is false.
5. that Alamelu Ammal executed settlement deed in respect of the suit property in favour of the appellant ,in the year 1951, when he was a minor, as per Ex.A. 1.
6. that Duraikannu Konar, the father of the appellant, as the guardian of the minor had been in possession of the suit property ever since the execution of Ex. A. 1 in the year 1952 till the appellant attained majority and after attaining majority the appellant continued to be in possession of the suit property.
7. that the possession of Kulla Konar during the minority of the appellant and afterwards by the appellant had been conclusively proved by chitta extract Ex.A. 3, and the kist receipts for the faslis 1370, 1371, 1372, 1374, 1375, 1378 and 1379, marked as Ex.A. 4 and kist receipt for fasli 1382, marked as Ex.A. 5.
8. that Parvathiammal had no manner of right in the suit property and the sale deed executed by her in respect of the northern 33 cents of the suit property marked as Ex.B. 3, to the first respondent will not convey any right to the first respondent.
9. that the first respondent is not in possession of any extent to the property.
6. In view of these findings the trial court passed a decree declaring that the appellant is the absolute owner of the suit property. In view of the conclusion that the respondents 1 and 2 and the predecessor-in-title of the third respondent (defendants 1 to 3 in the suit) had trespassed into the suit property and were in possession of the same also granted a decree for possession in favour of the appellant.
7. As against the judgment and decree of the trial court, the respondents 1 and 2 and the predecessor-in-title of the respondent No. 3, filed an appeal A.S. No. 39 of 1977 on the file of the Subordinate Judge of Chidambaram. Pending that appeal the predecessor-in-title of the respondent No. 3 namely, Parvathiammal, died and hence the respondent 3 has been impleaded as her legal representative. The learned Subordinate Judge came to the conclusion that the settlement deed Ex. A. 1 is a document required to be attested by at least two witnesses, according to Section 123 of the Transfer of Property Act. Under Section 68 of the Indian Evidence Act 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. The first appellate Court on a consideration of the evidence of P.W.I, scribe of Ex.A.l, came to the conclusion that he has signed the document Ex.A.l only as a scribe and as such he cannot prove the execution of the settlement by late Alamelu Ammal. Since the evidence indicated that out of the two attesting witnesses, one is dead and the other is alive, the settlement could not be proved only by summoning the other attestor which had not been done in this case. The first appellate court did not accept the explanation for not calling the sole surviving attestor on the ground that there is enmity between the appellant and the said attestor since the appellant had refused to marry his daughter. The learned Subordinate Judge, after considering the reported decisions cited in the judgment came to the conclusion that Ex.A.l had not been proved according to law. The first appellate Court also came to the conclusion that the possession by the appellant cannot be said to be adverse to that of the respondents 1 and 2. In view of the conclusion arrived at, the first appellate court held that the appellant is not entitled to declaration and possession in respect of the suit property and set aside the judgment and decree of the trial court and dismissed the suit with costs. As against the said judgment and decree in the first appeal this second appeal is filed.
8. Mr. T.V. Balakrishnan, learned Counsel for the appellant, raised the following contentions in support of his argument that the judgment and decree of the first appellate court is not sustainable in law:
1. The execution of the settlement deed Ex.A.l by Alamelu Ammal had been proved by P.W. 1 who had seen the execution of the document and deposed regarding the said execution by Alamelu Ammal before the trial Court. His evidence cannot be rejected on the ground that he is described as a scribe in Exhibit A-1.
2. The contention that the scribe even if he had seen the execution of the document cannot prove such execution in view of the fact he had been described as a scribe in that document cannot be sustained in view of the reported decisions regarding this question;
3. The acknowledgment of Alamelu Ammal before the Sub-Registrar and the Sub-Registrar's endorsement on the document is sufficient proof of execution.
9. The main contention of the appellant is that the conclusion of the first appellate court that the execution of the settlement deed Ex.A. 1 by Alamelu Ammal had not been duly proved in accordance with law is not correct. As already stated, P.W.I Adhivaraga Padayachi, who had signed in Ex.A. 1 as a scribe had been examined to prove the execution of the document. The relevant portion of his deposition is as follows:
According to the appellant, the abovesaid evidence of P.W. 1 is sufficient to prove the document. But on behalf of the respondents it is contended that the reasoning of the first appellate court that the evidence of a person who has described himself as a scribe cannot be taken as the evidence of an attestor with reference to the proof of the document is correct. Before entering into a discussion on the respective contentions of both the parties it will be useful to state the relevant provisions of law with reference to the attestation and proof of execution of documents. The definition of the word 'attested' occurs in Section 3 of the Transfer of Property Act, which reads as follows:
'attested', in relation to an instrument, means and shall be deemed always to have meant 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, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.
According to Section 123 of the Transfer of Property Act a gift of immoveable property can be effected only by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. Section 68 of the Indian Evidence Act deals with the proof of execution of document required by law to be attested and the same is as follows:
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 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 Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.
Ex. A.l, settlement deed, is required to be attested by at least two witnesses as per Section 123 of the Transfer of Property Act. The execution of Ex.A.l is denied in this case and the same will have to be proved according to law. P.W.I has given evidence that Alamelu Ammal touched the pen and authorised him to write her name in the document Ex.A.l as It has to be noted that Alamelu Ammal had not affixed her thumb impression in any one of the three pages of the document Ex.A.l. It is contended on behalf of the respondents that Alamelu Ammal had not affixed her thumb impression to the document Ex.A.l and hence the said document cannot be taken to have been executed by late Alamelu Ammal. In this connection it is pointed out that even P.W.I had admitted that in cases of persons who do not know to sign he used to take thumb impression and inasmuch as the thumb impression has not been taken in this case the document Ex.A.l cannot be taken as one executed by Alamelu Ammal. According to Section 3 of the Transfer of Property Act a person who is an executant of the document cannot direct some other person to sign on his behalf. In this case P.W. 1 has given positive evidence that late Alamelu Ammal touched the pen and asked him to write her name in the document. Hence in view of the fact that P.W. 1 had given categorical evidence that Alamelu Ammal authorised him to write her name as in the document Ex.A.l the absence of the thumb impression in Ex.A.l cannot invalidate Ex.A.l.
10. The next question to be considered is whether the conclusion of the first appellate court that Ex.A.l had not been duly proved in accordance with law is correct. The contention of the appellant is that P.W.I who had described himself as a scribe in Ex.A.l can speak to the execution of Ex.A.l. It is in evidence that one of the attestors is alive. It is the contention of the respondents that in view of the evidence that one of the attestors is alive the document can only be proved by summoning the said attestor. In this connection P.W. 2, the appellant herein, had stated in his evidence that the surviving attestor is enimical to him since he refused to marry his daughter. The contention of the respondents 1 and 2 is that even if the attestor his enimical calling him as a witness cannot be dispensed with. Reliance is placed upon the case reported in Peda Manikyan v. Periagadu : AIR1932Mad148 , where it has been held that the provisions of Section 68 of the Evidence Act are mandatory and the fact that when called the said witness would prove hostile did not excuse the party producing the document from this duty of calling the said witness in order to prove his 'will'. The proposition laid down in the above decision cannot be seriously challenged. In this case we have to consider whether the evidence of the sole surviving attestor is necessary for the proof of execution of the document in view of the examination of the scribe who had given evidence in proof of the execution. In the case reported in Seth Beni Chand v. Smt. Kamala Kunwar : 1SCR578 , the Supreme Court observed as follows:
None of the three is described in the will as an attesting witness but such labelling is by no statute necessary and the mere description of a signatory to a testamentary document as an attesting witness cannot take the place of evidence showing due consideration of the document. By attestation is meant the signing of a document to signify that the attestor is a witness to the execution of the document; and by Section 63(c) of the Succession Act, an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document.
Relying on this observation the learned Counsel for the appellant contended that P.W.I can prove the execution of the document Ex.A. 1 in view of the fact he had the actual knowledge of the execution. Judicial opinion on the question whether a scribe or any one who does not sign in the capacity of an attesting witness can be regarded as an attesting witness is not uniform. One set of decisions takes the view that the person whose name appears in the document as a scribe is competent to prove the execution of that document if he was in fact present and witnessed the execution. Contrary view has been taken in a series of decisions to the effect that the scribe cannot be treated as an attesting witness as contemplated in Section 68 of the Indian Evidence Act unless he actually signed as an attesting witness. When this is the position in respect of other High Courts, in so far as our High Court is concerned in the case reported in paramasiva v. Krishna I.L.R. (1918) Mad. 535 : 7 L.W. 24l : A.I.R. 1918 Mad. 491, it has been held that the fact a person calls himself a scribe in a certain document does not debar himself from being an attesting witness, if he in fact witnessed the execution, on the ground that the essence of attestation of a document is that the person attesting must have seen the document executed by the executant. In the case reported in Murugesa Mudaliar v. Gopalakrishna Mudaliar : (1950)2MLJ262 , it has been held that the signature of a scribe may itself in certain circumstances be regarded as an attestation which stands duly proved by his evidence. It is a question in each case which turns upon its own circumstances whether a scribe can or cannot be regarded as an attesting witness. A scribe may be an attesting witness as well as the writer. But the fact that he signed as an attesting witness must be duly proved. This view is not in accordance with the observation of the Privy Council in Shamu Pattar v. Abdul Kadir, , where it has been observed that the act of attestation must be done ANIMO ATTESTANDI i.e., with the intention to attest. The fact that his name is on the document does not make him an attesting witness, irrespective of the purpose for which it is there. According to the view of the Privy Council the mere presence of a person at the time of the execution of an instrument cannot make him an attesting witness.
11. Any other construction would remove the safeguards which the law dearly intended to impose against the perpetration of frauds. A men can be considered to have attested the fact of execution, not only when he saw the execution, but also when he signed as an attesting witness. In the case reported in Girija Datt v. Gangotri Datt A.I.R. 1958 S.C. 346, the Supreme Court observed that it cannot be presumed that the mere signature of two persons appearing at the foot of the endorsement of registration of a will that they had appended their signatures to the document as attesting witnesses can be construed to have done so in their capacity as attesting witnesses. Section 68, Evidence Act requires an attesting witness to be called as a witness to prove the due execution and attestation of the will.
12. The conflict has been set at rest by the Supreme Court decision in Abdul Jabbar v. Venkatastri : 3SCR513 , where the Supreme Court observed as follows:
Section 3 of the Transfer of Property Act gives the definition of the word 'attested' and is in these words:'Attested' in relation to an instrument, means and shall be deemed to have meant 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, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary 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 to be noticed that the word 'attested' the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under Section 3 are:
(1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature;
(2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person put his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.
The Supreme Court has categorically laid down that a person who described himself as a scribe or an identifier or a registering officer cannot be called as an attesting witness.
13. On behalf of the appellant reliance is placed upon the case reported in M. Venkatachala Iyengar v. B.N. Thimmajamma and Ors. : AIR1959SC443 , where the Supreme Court observed that the mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act. Proof in either case cannot be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matters. The onus must be on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus. Hence it is contended on behalf of the appellant that one cannot be mathematically precise in the matter of proof of the document and in this case there is sufficient evidence to prove the execution of the document Ex.A. 1.
14. In view of the categorical observation of the Supreme Court in the decision viz., Abdul Jabbar v. Venkatasastri : 3SCR513 , that the person who described himself as a scribe cannot be an attesting witness, in this case P.W. 1 cannot be considered as an attestor to Ex.A.l. The view taken by the first appellate court that P.W. 1 cannot prove the settlement Ex.A.l is in accordance with the view expressed by the Supreme Court.
15. However, in view of the conflicting decisions on the point in the past and the intricate aspects of the question this is a fit case where the appellant should be given an opportunity to prove Ex.A.l according to law by summoning the solve surviving attestor.
16. The last contention raised on behalf of the appellant is that in view of the fact that Alamelu Ammal had registered the document and the fact that the Sub Registrar had subscribed the endorsement on the back of the document will amount to sufficient proof of execution. The case reported in Irudayammal v. Salayath Mary : (1972)2MLJ508 , is cited in support of this proposition. In that case a Division Bench of this Court observed that the registration by itself is not proof of execution, but if no other evidence is available the certificate of registration is prima facie evidence of its execution and the certificate of the registering officer under Section 60 of the Registration Act is relevant for proving the execution. But in this case there is evidence to show that one of the attestors of Ex.A.l is alive. Hence the principle laid down in the above decision cannot be applied to the facts of this case and the abovesaid contention of the appellant will have to be negatived.
17. In view of the abovesaid discussion the judgment and decree of the first appellate court is set aside and the matter is remitted back to the trial court for fresh disposal in the light of the observations made above. The trial court will give an opportunity to the appellant to summon the sole surviving attestor to Ex.A.l and consider his evidence and dispose of the matter in accordance with law.
18. In the result the second appeal is allowed and remitted back to the trial court for fresh disposal in the light of the observations made above. However, there will be no order as to costs. The court fee paid by the appellant in the memorandum of second appeal will be refunded to the appellant.