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Dharmadas Mondal and ors. Vs. Kashi Nath De - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1107 of 1954
Judge
Reported inAIR1959Cal243,64CWN332
ActsRegistration Act, 1908 - Section 60(2); ;Transfer of Property Act, 1882 - Sections 3 and 123; ;Code of Civil Procedure (CPC)
AppellantDharmadas Mondal and ors.
RespondentKashi Nath De
Appellant AdvocatePurushottam Chatterjee and ;Dhirendra Kumar Das, Advs.
Respondent AdvocateChandra Narayan Laik and ;Murari Mohan Dutta, Advs.
DispositionAppeal allowed
Cases ReferredKunwar Surendra Bahadur Singh v. Thakur Bihari Singh
Excerpt:
- .....2) that he put down his signature at asansol sub-registry office where kashinath showed him the deed. santiram was severely afflicted, both in body and mind, at this time, and kashinath was the only person who was looking after him. between the years 1351 and 1355 b.s. santiram had lost his wife and his four daughters, and he was suffering from the fell disease of phthisis to which he ultimately succumbed a few days after the execution of the disputed deed of gift. there was not a single local witness to attest the deed. it is true that the appellants could not distinctly prove the case of undue influence set up by them; but from the evidence adduced by the parties, the trial court made the following finding on the question of execution and attestation of the deed:'the document,.....
Judgment:

Kenupada Mukherjee, J.

1. The plaintiffs of the Trial Court are the appellants in this Court, and the appeal arises out of a suit instituted by them for recovery of possession of some immovable and movable properties described in two schedules, namely, schedules Ka and Kha of the plaint, upon declaration of their title thereto as heirs of one deceased Santiram Nandi. The appellants are all minors and the suit was brought on their behalf by their fathers as their next friends on the following allegations:

One Santiram Nandi of village Khudika in Burdwan district had four daughters, viz., Nanibala, Bisala, Kutura and Janjali, all of whom died in quick succession within a few years before the death of their father. Santiram's wife had also predeceased him. After his death Santiram left the three plaintiffs as his natural heirs Dharmadas Mondal (plaintiff No. 1) being son of Nani-bala, and the other two plaintiffs being sons of Bisala. Santiram was possessed of nearly forty bighas of land and also of some movable properties during his life time. He died on 14th Falgun, 1355 B. S., corresponding to 26-2-1949. Before his death he executed two deeds of gift on 22nd Kartick 1355 B. S., corresponding to 8-11-1948, in favour of respondent Kashinath De and his three brothers who are sister's sons of Santiram. Under the deed of gift nearly ninteen bighas of land were given to the donees. It is the case of the plaintiffs that after the death of Santi Ram, attempt was made on their behalf to take possession of the remaining lands and also of the movables, but the defendant respondent resisted the plaintiff's from obtaining possession of nearly twelve bighas of land described in schedule Ka of the plaint and also of the movable properties described in schedule Kha. Hence the occasion for the present suit. (2) The defence of the defendant was that during the life time of Santiram he had made a gift of the disputed lands to him by executing a deed of gift on 3rd Falgun, 1355 B. S., and had also made an oral gift in respect of such movables as were left by him, and so the plaintiffs were not entitled to claim them by inheritance from Santiram. The defendant questioned the extent and also the value of the movables left by Santiram.

3. Upon these pleadings the main issues which called for the determination of the Trial Court were whether the deed of gift relied on by the respondent was genuine and whether it was duly executed and attested according to law, and whether there was an oral gift of the movable properties as alleged by the defendant respondent. An issue was also raised whether the deed of gift is invalid by reason of fraud, coercion or undue influence, but this issue is no longer material for the present appeal in view of the findings of the Courts below that the document is not invalid for these reasons.

4. The Trial Court held that the deed was not executed in the manner alleged by the defendant, and it was not lawfully attested at the time of its alleged execution, although there was a valid attestation at the time of its registration. The Trial Court did not uphold the deed, because due execution of the document, as alleged by the defendant, had not been proved. It further held that the story of oral gift set up by the defendant in respect of the movable properties was untrue. Accordingly, the Trial Court passed a decree in favour of the plaintiffs in respect of the immovable properties of schedule Ka and gave a direction for appointment of a commissioner for ascertaining the extent and value of the movable properties described in schedule Kha.

5. An appeal was preferred by the defendant challenging the correctness of the decree passed by the Trial Court. The Lower Appellate Court reversed the decree of the Trial Court holding that due execution and attestation of the document had been proved. Regarding the alleged oral gift of the movable properties, the Lower Appellate Court agreed with the Trial Court that there was no such gift, but as the defendant had spent money for the sradh of Santiram, he was entitled to set off the sradh expenses against the price of the movables. In view of these findings, the Lower Appellate Court allowed the appeal of the defendant and dismissed the suit of the plaintiffs. So the plaintiffs have preferred this second appeal.

6. The questions which have arisen for our determination are:

(1) Was the disputed deed of gift duly executed by Santiram Nandi?

(2) Was the said deed legally attested?

(3) Are the plaintiffs appellants entitled to get a decree for the value of the movables gifted by Santiram Nandi?

7. We take up the first two questions together as they are interlinked. The decision of this case depends on the validity or otherwise of a deed of gift purporting to have been executed by Santiram Nandi in favour of respondent Kashinath De on 3rd Falgun, 1355 B. S., corresponding to 15-2-1949, The deed of gift was marked exhibit G in the Trial Court. The deed of gift comprises nearly twelve bighas of land described in two schedules. Being a deed of gift it is required to be attested at least by two witnesses under Section 123 of the Transfer of Property Act. The execution of this deed by Santiram was specifically challenged by the appellants, and so under Section 68 of the Indian Evidence Act, the document must be proved by examining at least one attesting witness. The deed shows that it was written by one Gobordhan Patitundi who signed as a scribe and not as an attesting witness. It purports to have been attested by one Haripada Mudi. Now, Gobardhan is admittedly a professional deed writer of Asansol Rub-registry office and Haripada is his assistant. The sub-registry office is several miles away from village Khudika where the executant was living at the date of the alleged execution of the deed. Gobordhan was not called for for the purpose of proving where and under what circumstances the deed was written, or for proving that besides writing the document, he attested it as a witness. Haripada was examined as defendant's witness No. 2. His evidence shows that he was not present when the deed was written, or when it was signed by Santiram, but Kashinath obtained his signature at Asansol Sub-registry office. On behalf of the defendant respondent, the case sought to be made out with regard to the execution of the document was that it was written and executed at Santiram's house at Khudika and Haripada attested the deed there. Radhanath Nandi (defendant's witness No. 3) was the witness who tried to prove this case. His evidence on the point was disbelieved by both the Courts below which preferred to accept the evidence of Haripada (defendant's witness No. 2) that he put down his signature at Asansol sub-registry office where Kashinath showed him the deed. Santiram was severely afflicted, both in body and mind, at this time, and Kashinath was the only person who was looking after him. Between the years 1351 and 1355 B.S. Santiram had lost his wife and his four daughters, and he was suffering from the fell disease of phthisis to which he ultimately succumbed a few days after the execution of the disputed deed of gift. There was not a single local witness to attest the deed. It is true that the appellants could not distinctly prove the case of undue influence set up by them; but from the evidence adduced by the parties, the Trial Court made the following finding on the question of execution and attestation of the deed:

'The document, however, contains 6 signatures. I hold that although the document was signed by Santiram yet it was not executed in the manner alleged by the defendant. I hold further that the document was not lawfully attested at the time of its alleged execution. On a consideration of the evidence on record, and the circumstances of the case I am of opinion that the danpatra in question was written by Gobardhan Patitundi at the Asansol Sub-Registry Office and then it was taken by Kashinath who privately got Santiram's signature on the document at village Khudika and thereafter Kashinath again took the document to the sub-registry office at Asansol and on this occasion he took the signature of Haripada Mudi on the document. It follows, therefore, that the story of the defendant that the document was read out to Santiram by Gobardhan before Santiram put his signature is not true.'

8. The virtual effect of the above finding of the Trial Court is that the deed is a highly suspioious document, and there is no dependable evidence satisfy the Court that Santiram executed the deed in presence of witnesses with full knowledge of the import and effect of the deed. Of course, his signatures are there the genuineness whereof is no longer questioned in this appeal; but the deed cannot be a valid deed simply because it contains the mechanical signatures or the executant, if from evidence and circumstances the Court has reason to believe that the executant was not aware of the contents of the deed.

9. The above finding of fact of the Trial Court was also accepted by the Lower Appellate Court, as will be apparent from the following quotation from the judgment of the Lower Appellate Court;

'The execution also did not take place in the manner in which it has been stated in the written statement or in the evidence on behalf of the defendant. But the finding of the learned Subordinate Judge (with which I agree) to the effect that the execution of the document in the manner in which it is alleged to have been executed has not been proved however, does not go far enough for the decision of the question at issue'.

Mr. Laik argued on behalf of the respondent that the deed is a registered deed, and so a presumption should be made in favour of its validity in all respects regarding due execution and attestation of the deed and the onus lay on the appellants to prove that the deed was not properly executed and attested. In support of this contention Mr. Laik relied on the following oft-quoted passage from the case of Gangamoyi Debi v. Troiluckhya Nath, 33 Ind App 60 (PC):

'The registration is a solemn act, to be performed in the presence of a competent official appointed to act as registrar, whose duty it is to attend the parties during the registration and see that the proper persons are present and are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be done duly and in order.'

10. On the strength of the above observations, Mr. Laik contended for the respondent that since the deed was validly registered on commission and since there is no dispute about the validity of the registration, there should be a presumption that every thing about the execution and attestation was in form and in order when the registering officer registered the deed. The Lower Appellate 'Court has also upheld the validity of the deed on the same line of argument as was advanced by Mr. Laik. In our judgment, the argument is a mis-concieved one. The Privy Council case makes if clear that where a deed is a registered one, there would be a presumption of validity only with regard to the proceedings which took place before the registrar at the time of the registration of the deed and not with regard to any antecedent proceeding regarding the actual writing of the deed, or the mental capacity of the executant, or the signing of the deed by attesting witnesses. If this is not so, deed once registered would practically be immune from any possible attack after its registration.

11. In the above connection, Mr. Laik on behalf of the respondent cited a Lahore case reported in Piara v. Fathu, AIR 1929 Lah 711 in which it has been held on the strength of the Privy Council case referred to above and also on a consideration of Section 60 of the Indian Registration Act that the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution. It is difficult to accept the wide interpretation of the Privy Council case given in this Lahore case. But even it it be held that that case has been correctly decided much of the force of the decision is taken away by the observation that the question whether the certificate of the registering officer is sufficient to establish execution will naturally depend upon the circumstances of each case.

12. Section 60 of the Indian Registration Act runs in the following terms.

'60 (1). After such of the provisions of Sections 34 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word 'registered', together with the number and page of the book in which the document has been copied.

2. Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endoresement referred to in Section 59 have occurred as therein mentioned.'

Sub-section (2) of the above section is relevant for our purpose. It is laid down therein that after a certificate of registration is given, it will be admissible for the purpose of proving that the document has been duly registered according to the provisions of the Registration Act, and that the facts mentioned in the endorsements of the sub-registrar have occurred as therein mentioned.

13. It will thus be seen that the scope of the certificate given by the registering officer is limited, and it will not be proper to stretch the scope of the certificate beyond what has been laid down by law.

14. In the present case the endorsement of the registering officer runs in the following terms :

'Having visited the residence of Santi Ram Nandi, son of Dinu Nandy of Khudika, thana Salan-pur, Dt. Burdwan, by caste Hindu, by profession cultivator, I have this day examined the said Santi Ram Nandy who has been identified to my satisfaction by Ratthanath Nandy, son of Late Haripada Nandy, resident of Kudika, thana Salanpur, Dt. 24-Parganas, by caste Hindu by profession cultivator, and the said Santiram Nandy admitted the execution of this document.'

15. Having regard to this endorsement made by the sub-registrar, the Court can only presume that Santiram Nandy admitted execution of the deed before him. There would be no further presumption that the deed had been executed by Santiram with knowledge of its contents, or that Haripada whose name figures as an attesting witness had actually attested execution. Admission by Santiram that he had executed the deed with knowledge of its contents was falsified by the evidence adduced on behalf of the respondent himself, and from that evidence the Trial Court came to the conclusion that the manner of execution of the deed, alleged by the respondent was not proved. That finding was also upheld by the Lower Appellate Court. As both parties adduced evidence, no abstract question of onus arises in this case. Regard being had to the finding of the Courts below about the actual execution of the deed of gift by Santiram, we hold that due execution of the deed I was not proved, and the gift would fail for that reason.

16. We now come to the other question raised about the validity of the deed, namely, whether it was attested legally by two witnesses. We have already observed that neither the scribe, nor the only witness Haripada whose name figures as an attesting witness, really attested the execution of the deed. There is, therefore, no attesting witness on the face of the deed. Mr. Laik contended on behalf of the respondent that the sub-registrar and the identifier Radhanath Nandi should also be held to be attesting witnesses, because Radhanath deposes that both he and the sub-registrar saw Santiram sign the deed at the time of registration, and Santiram also saw them subscribe their signatures,

17. Mr. Chatterjee conceded on behalf of the appellants that according to the trend of decisions of our High Court, a sub-registrar in whose presence the executant of a deed admits execution, may be regarded as attesting witness, but he contended that an identifier who is called at the time of registration for the purpose of identifying the executant cannot be so regarded, simply because he happens to see the executant affix his or her signature in the deed at the time of registration. In the submission of Mr. Chatterjee, an identifier, in order that he may be regarded as an attesting witness, must do some thing more besides playing the role of an identifier, namely, he must sign the document qua witness of its execution. The view propounded by Mr. Chatterjee gains support from a case reported in Abinas Chandra v. Dasarath Malo : AIR1929Cal123 . It seems that a contrary view has been taken in a Full Bench case of the Madras High Court reported in, Veerappa Chettiar v. Subramanya Ayyar AIR 1929 Mad 1. where it has been held that the signatures of the registering officer and of the identifying witnesses affixed to the registration endorsement are a sufficient attestation within the meaning of the Transfer of Property Act and its subsequent amending Acts. The full facts of the case are not available from the report, but it may be taken that the learned Judges of the Madras High Court wanted to lay down as a broad proposition of law that an identifier who signs the registration endorsement becomes an attesting witness, although he might have been called for the purpose of identification only. We are not prepared to accept the view taken in the Madras Full Bench case, because it appears to be contrary to the view taken in a Privy Council case reported in Sarkar Barnard & Co. v. Alak Manjari Kuari . In this case the Privy Council affirmed the view taken by the learned Judges of the Patna High Court that the persons alleged to be attesting witnesses must not only see the execution of the document, but also subscribe their names on the document as having seen the execution. It follows, therefore, that where an identifier who is expressly called for the purpose of identifying the executant merely puts down his signature without subscribing his name on the document as a person having seen the executant sign his name or heard him admit execution of the deed, he cannot be regarded as an attesting witness within the meaning of Section 3 of the Transfer of Property Act. Of course, there is no set or stereotyped form for indicating how an attesting witness should sign, but in our judgment, there must be some indication to show that an attesting witness subscribes his name as such.

18. Mr. Laik submitted on behalf of the respondent that in the Privy Council case cited above, their Lordships of the Judicial Committee did not give any reasons for their judgment, and they simply affirmed the decision of the Patna High Court in a few sentences. This fact, however, would not take away the high authority of the Privy Council case.

19. In the above context, Mr. Laik drew our attention to a case reported in Haripada Maity v. Armada Prosad Haldar, AIR 1930 Cal 750 and submitted that the scribe of a document was accepted as an attesting witness in that case. Mr. Laik contended that an identifier who actually hears the executant admit the execution of the deed or who sees the executant sign the deed at the time of registration, does not stand on a different footing from the scribe, After having gone through the above mentioned case, we are of opinion that it does not really support Mr. Laik's contention, because the scribe in that case was not only functioning as the writer of the deed, but he also put down his signature in order to bear testimony to the fact that the deed had been executed by the executant. In the present case, the sub-registrar's endorsement would show that Radhanath was functioning merely as an identifier and nothing more.

20. Mr. Laik also relied on a Privy Council case reported in Kunwar Surendra Bahadur Singh v. Thakur Bihari Singh in support of his contention that an identifier can become an attesting witness only if he signs his name in the presence of the executant and hears him admit execution of the deed. In particular Mr. Laik relied on the following passage at page 676 (of Cal WN): (at p 121 of AIR) of the report:

'Further, there is no evidence which would entitle their Lordships to hold that the witnesses who identified her signed the endorsement in Mussamat Jamma Kunwar's presence, or that they heard her admit completion and execution of the mortgage deed.'

The above quoted passage, however, should be read along with two other subsequent passages. They are quoted below :

'Reading the endorsements made at the time of the registration as a whole, and giving to them their natural meaning, they appear to be relevant to the matter of registration only, and the witnesses appear to have been present for the purpose of identifying Mussamat Jamma Kunwar and for that purpose only.'

'If it had been intended to rely on the proceedings of the registration as showing that the provisions of the Transfer of Property Act as to due execution of the mortgage deed were complied with, evidence should have been given on behalf of the plaintiffs to prove the necessary and material facts.'

Reading the above Privy Council case as a whole one would not get the impression that their Lordships of the Judicial Committee intended to say that an identifier who is present merely for the purpose of identifying the executant of a deed can be regarded as having attested the deed within the meaning of Section 3 of the Transfer of Property Act simply by signing his name in executant's presence. This case in which the question was not finally decided because of want of proof that the identifier had actually signed in presence of the executant, cannot detract from the authority of the other Privy Council case referred to above and reported in (Supra) which may be regarded as a direct authority on the point under consideration.

21. In our case the identifier signed his name before the registering officer in his capacity as identifier and nothing more. He no doubt says in Court that he saw the executant sign his name and he also signed his name in his presence. At the same time he says that he did not sign as an attesting witness. In our judgment, an identifier signing a deed under these circumstances cannot be regarded as an attesting witness, and we hold that Radhanath did not attest the deed within the meaning of Section 3 of the Transfer of Property Act. The result is that there was only one attesting witness, and that was the sub-registrar before whom the executant had admitted execution. The deed of gift was not, therefore, attested according to law, and it fails for this reason too.

22. Points (1) and (2) are decided in favour of the appellants and against respondent as indicated above.

23. We now pass on to consider the third and last point, namely, whether the plaintiffs appellants are entitled to get a decree for the value of movables left by Santiram. Both the Courts below held that the respondent's claim for the movables under an oral gift is not true. The appellants as heirs at law of Santiram are entitled to get the movables or their price. As several years have elapsed after the death of Santiram all the movables are presumably not in existence, at least, not in the same condition in which they were at the time of Santiram's death. So it would be desirable to give the appellants a decree for their price. The Lower Appellate Court held that the respondent incurred expenses for Santiram's sradh, and if the price of movables be set off against them, the appellants would get nothing from the respondent. In our judgment, no such claim of set off can be allowed, because the respondent incurred the sradh expenses gratuitously and also because he is in possession of the disputed properties without any valid title for all these years.

24. The appellants claimed a sum of Rs. 4160/-as being the price of the movables. According to the respondent, the value of the movables was only Rs 316/-. According to the finding of the Trial Court, the existence of some of the movables was not proved. That Court also found that the evidence adduced by the appellants about the extent and value of the movables was not sufficient. Still the Trial Court instead of passing a decree on the amount admitted by the respondent, directed that a commissioner should be appointed for ascertaining the extent and value of the movables. In our opinion, this is erroneous in law. The appellants failed to prove that they were entitled to get the value of the movables as claimed in the plaint. The Trial Court should not have given second opportunity to the appellants to prove their case before a commissioner. It should have passed a decree for Rs. 316/- as admitted by the respondent.

25. From our foregoing findings, it is clear that the appeal must be allowed and the judgment and decree of the Trial Court restored with the modification indicated above. We accordingly allow this appeal and set aside the judgment and decree of the Lower Appellate Court and restore those of the Trial Court with the modification that the direction of the Trial Court for appointment of a commissioner for ascertaining the extent and value of the movables is set aside and the plaintiffs appellants are instead given a decree for Rs. 316/- against the respondent as being the price of the movables left by deceased Santiram Nandi.

26. The appellants will get their costs from the respondent in proportion to their success in all the Courts including this Court. The decree of the Trial Court regarding costs is also varied to this extent.

Banerjee, J.

27. I agree.


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