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PETITIONER: BRIJ RAJ SINGH (DEAD) BY L. RS. & ORS.

       Vs.

RESPONDENT: SEWAK RAM & ANR.

DATE OF JUDGMENT:       22/04/1999

BENCH: K. Venkataswami. & A.P. Misra.

JUDGMENT:

K. Venkataswami, J.

This appeal by special leave is preferred against the judgment of the  Punjab and Haryana High Court in R.S.A.  No.  1807/71  dated February 3, 1982.  The appellants are the legl representatives of the deceased plaintiff.  For the sake of convenience, the parties are  referred  hereinafter as ’plaintiff’ and ’defendants’.   The second  defendant,  a proforma party, is the father of the  first defendant.

The  plaintiff filed Suit No.  722/67 for recovery of  possession of the suit site from the defendants.  According to the averments in  the plaint, the suit site was acquired by the plaintiff under a  gift deed dated 18.1.1961 registered on 9.2.1961 and marked as Exbt.   PW- 6/1 in the suit.  One Kanwar Chander Raj Saran  Singh was  the  donor under the said gift deed.  The  plaintiff  before filing  the present suit for possession preferred an  application for  ejectment  of  the  defendants before  the  Rent  Controller alleging  that  the  first defendant who was a tenant  under  him denied the title.  The learned Rent Controller by his order dated 16.1.1967  held  that the first defendant was a tenant under  the plaintiff and further held that the first defendant was liable to be  ejected from the suit site.  However on appeal the  appellate authority by its order dated 3.6.1967 reversed the finding of the learned  Rent  Controller  and held that the  plaintiff  has  not proved  that  there existed a landlord and  tenant  relationship. Accordingly,  while allowing the appeal, the appellate  authority dismissed   the  application  for   ejectment  preferred  by  the plaintiff.

In  the  light  of  the order of  the  appellate  authority,  the plaintiff  filed the present suit for possession on the basis  of the  said  gift deed.  The plaintiff appears to have examined  13 witnesses on his side and placed a number of documents to support his claim for possession.

The  defendants  resisted the suit contending that they  are  the owners,  that  Kanwar Chander Raj Saran Singh had  no  connection whatsoever with the suit property and, therefore, had no right to make the gift deed in favour of the plaintiff.  The gift deed, if any,  he  alleged, must be a devise by the plaintiff to grab  the defendants’  property.   The  defendants  also  denied  that  the plaintiff was the landlord of the suit site.

Defendants appear to have examined three witnesses.

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However,  the  defendants  have  not   filed  any  documents   to substantiate their claim.

The trial court on the bais of the pleadings framed the following issues:-

i) Whether the plaintiff is the owner of the property in suit as alleged.

ii)   Whether the suit is within time.

iii)  Relief.

The trial court on the basis of the oral and documentary evidence found that the plaintiff derived title to the suit property under the  gift  deed  dated 18.1.1961 and that the suit was  in  time. Accordingly  a deeree for possession was granted on 15.1.1971  by the trial court.

The  defendants aggrieved by the decree for possession granted by the  trial  court  preferred an appeal to the  Senior  Sub-judge, Gurgaon.  Before the first appellate court for the first time the Defendants  raised  an objection that the gift deed has not  been duly  proved  in  accordance with the provisions of  Transfer  of Property  Act  and hence cannot be taken into account  to  confer title  on  the  plaintiff.  The lower appellate  court,  for  the reasons  stated in its judgment, held that the gift deed was  not duly  proved  and  hence the plaintiff cannot be held to  be  the owner of the suit site.  On that ground the lower appellate court allowed  the  appeal  and  dismissed the suit  preferred  by  the plaintiff.   The  lower appellate court, however, held  that  the suit was in time and the original owner of the suit site was Kanwar Chander Raj Saran Singh.

The  High Court in the second appeal preferred by the  plaintiff, after  noticing that no specific objection regarding execution or attestation  of  the  gift  deed was  taken  by  the  defendants, confirmed  the judgment of the lower appellate court, Hence,  the present appeal by special leave.

Mr.  Shanti Bhushan, learned Senior Counsel for the Plaintiff now represented  by  L.Rs.  submitted that the lower appellate  court and the High Court went wrong in allowing the defendants to raise an  objection regarding execution or attestation of the gift deed as  no  such  objection was specifically raised  in  the  written statement  nor  in  the   cross-examination  of  the  plaintiff’s witnesses  nor  even  in the arguments before  the  trial  court. According  to the learned Senior Counsel, the gift deed was  duly attested by two witnesses on the first page of the document which was  not noticed by the lower appellate court and the High Court. The  attestation  was duly proved by PW-6 who has subscribed  his signatures  in  the gift deed at three places in three  different capacities,  namely,  as  scribe,  as attesting  witness  and  as identifying  witness  before the Registrar.  He has spoken  about his role as stated above in his evidence which was not challenged by  the  defendants  in  the cross-examination.   In  may  event, according  to the learned Senior Counsel, the examination of  one attesting  witness satisfies the requirement of section 68 of the Evidence  Act.  He also submitted that even one attesting witness need  not have been examined in view of proviso to Section 68  of Evidence  Act  as  admittedly no specific  challenge  was  raised either  in  the written statement or before the trial court  even subseuent  to  the  filing of the written statement.  It  is  the further  contention  of  the learned Senior Counsel  that  having regard  to  the recitals in the gift deed to the effect that  the

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deed  preceded by an oral gift coupled with the possession  (long before  the  application  of the provisions of  the  Transfer  of Property  Act  to Punjab and Haryana), the compliance of  section 123  of  the  Transfer  of Property Act was  not  required.   The learned  Senior  Counsel  for  the plaintiff cited  a  number  of authorities to support these submission.

Mr.   M.L.   Verma,  learned  Senior Counsel  appearing  for  the defendants, contending contra, submitted that the presentation of the  document,  namely,  gift  deed  by  power  of  attorney  was defective inasmuch as that power was not produced.  At this stage we must state that after perusing the original gift deed (PW-6/1) in   the  court  and  in   particular  the  endorsement  of   the Sub-Registrar  on  the  second page  regarding  the  productionof registered  deed of power of attorney, the learned Senior Counsel did  not  pursue  this  contention.  He also  submitted  that  an identifying  witness  cannot be treated as an attesting  witness. In  support of that, he cited an authority of this Court.   Again this  point  does not arise for cnsideration in view of the  fact that  it  is  not the case of the plaintiff before  us  that  the identifying  witnesses are to be treated as attesting  witnesses. We may point out at this stage that such an argument no doubt was placed  before  the lower appellate court and the High  Court  on behalf  of  the  plaintiff.   Before us  such  argument  was  not advanced  and,  therefore,  that question does  not  arise.   Mr. Verma,  learned Senior Counsel for the defendants, submitted that the  point  regarding execution or attestation though raised  for the  first  time before the appellate court is permissible as  it was  only  a question of law.  Regarding what amounts to a  valid attestation  in a registered document, Mr.  Verma, learned Senior Counsel,  cited  a number of authorities and submitted  that  the lower  appellate  court and the High Court had correctly  decided the  issue  by  holding  that the gift deed was  not  proved  and consequently  the plaintiff did not derive any title to the  suit site.   He also contended that notwithstanding the finding of the courts  below that the owner of the suit site was Kanwar  Chander Raj  Saran Singh, the defendants cannot be dispossessed except by the  true  owner.   Lastly,  he contended that  mere  marking  of exhibit (gift deed) does not amount to proof.

In  the light of the contentions raised before us the issue  that arises for consideration is whether the lower appellate court and the  High  Court were right in law in allowing the defendants  to challenge  the  gift deed based on want of strict  compliance  of Section  3 and 123 of the Transfer of Property Act even though no such plea was raised in Written Statement, no issue was therefore framed  and  no argument was advanced in the trial court.   Apart from  the above question of law, we have to see whether the lower appellate court ad the High Court correctly appreciated the facts and properly looked into the gift deed in issue.

After  carefully  going  through the judgments of all  the  three courts  below  and after perusing the original gift  deed  (Exbt. PW6/1), we find that the lower appellate court and the High Court had  not  looked into the document carefully before giving  their findings.   The  lower  appellate  court in  the  course  of  the judgment in more than one place has stated that the gift deed was executed  by  the power of attorney which is a  wrong  statement. The lower court has stated as follows:-

"The  gift  deed  is  said  to have been  executed  by  one  Shri Janardhan Parshad as an attorney of Kn.  Chander Raj Saran Singh. It  was  pointed  by Shri T.C.  Jain that  unless  the  plaintiff produced  the  power of attorney of Janardhan Parshad Sharma,  it could not be held executed by a person duly authorised to execute

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the same.

Again the lower appellate court observed as follows :-

"The   objection  urged  by  Shri   T.C.   Jain   regarding   the admissibility  of  the gift deed must, therefore, prevail on  the ground  that  the  gift  deed has not been  duly  got  proved  in accordance  with the provisions of Section 123 of the T.P.Act and secondly  it  has  also  not  been proved  that  the  donor  duly authorised  Janardhan  Dass  to  execute the same  as  a  general attorney in favour of the plaintiff.

While negativing a contention put forward on behalf of the Plaintiff, the lower appellate court observed as follows:-

"...it  was necessary on the part of the plaintiff to have proved by  positive  evidence  that  Janardhan   Dass  Sharma  was  duly authorised  to execute the gift deed in favour of the  plaintiffy by Kn.  Chander Raj Saran Singh."

It  is nobody’s case that the gift deed was executed by the power of  attorney.   A  persual of the gift deed  clearly  shows  that Kanwar  Chander Raj Saran Singh admittedly owner of the  property has  executed  the gift deed and the power of  attorney,  namely, Janardhan  Prashad  Sharma  was only authorized  to  present  the document  for  registration.  The lower appellate  court  without looking  into  the document proceeded as if the execution of  the document was by a power of attorney and in the absence of a power to  execute the document, the gift was not proved.  Further,  the lower  appellate court in the course of the judgment has held  as follows:-

"An  attesting  witness must be a person who signed the  document purporting to do so as an attesting witness.  I have examined the said  document and find that this document has been only attested by  one  witness  namely Sobha Ram.  The name of Ram  Saran  Dass appears  in the said document as that of a scribe and he is  only an  identifying  witness  who has identified the  execution  made before the Sub-Registrar.  Thus, it is evident that the gift deed which  was the basis of the suit and which alone could confer the title  of  ownership  on  the plaintiff has not  been  proved  in accordance  with the provisions of Section 123 of the Transfer of property  Act  and  in view of the same the Trial Court  was  not justified in placing relience on this document."

Sobha  Ram  was not the attesting witness for the gift deed.   He was  only an identifying witness before the Registrar as seen  at page  2 of the original gift deed.  The lower appellate court has totally ingnored the categorical evidence of pw 6 stating that he has  also  signed  as witness.  Section 3 of of the  Transfer  of Property  Act specifically states that no particular form need be followed in the matter of attestation.  It can be at first, as in this case, or at last page.

The  High Court, however, has rightly noticed that the gift  deed was  executed  by Kanwar Chander Raj Saran Singh.   However,  the High  Court held that the gift deed has not been duly attested as required  under Section 123 of the Transfer of Property Act.  The High Court in the course of judgment observed as follows:-

From  the persual of the gift deed, it is quite evident that this was  executed by Kanwar Chander Raj Saran Singh on 18.1.1961.  No one  has  signed  as a witness to the document.  The  scribe  Ram Saran  Dass  has  written "dated 18th January, 1961  Bakalam  Ram Saran  Dass".   Later  on,  on 9th of February,  1961,  the  said

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document  was presented for registration by one Janardhan  Sharma who  claimed  himself  to be the Mokhtiar-a-Aam of  donor  Kanwar Chander  Raj Saran Singh.  The necessary power of attorney in his favour  dated 18th of February, 1953 was also produced before the Sub-Registrar  by Ram Saran Dass - the scribe and one Shabha Ram. According  to  the  learned  counsel  for  the  appellant,  since Janardhan  Sharma, the Mukhtiar-a-Aam of the donor Kanwar Chander Raj Saran Singh admitted the execution of the document before the Sub-Registrar  and  Ram  Saran Dass, the scribe  and  Shabha  Ram attested  the  same  before  Sub-Registrar, it  will  amount  tto attestation  as  required  under section 123 of the  Transfer  of Property  Act.   In  support of this contention, he  relied  upon Girja  Datt  Singh Vs.  Gangotri Datt Singh (AIR 1955 S.C.   346) and Narain Singh Vs.  Parsa Singh alias Parsu (1971 C.L.J.  195).

L.....I..........................................................J

     After hearing the learned counsel for the parties at a great length,  as  observed  earlier, it appears that before  the  trial Court  no such objection was taken specifically either at the time of  admission of the document Exhibit PW6/1 or at the time of  the arguments.  It was only at the appellate stage that this objection was  taken  on behalf of the defendant that the gift deed  on  the basis  of  which the plaintiff claimed himself to be owner of  the site  in dispute, is not a valid document as it was never attested by any of the witnesses as required under the Transfer of Property Act.   This  objection prevailed with the lower  appellate  court. The  argument  of the learned counsel for the appellant  that  the admission  made  by Janardhan Sharma, Mukhtiar-a-Aam of the  donor and  signed by the scribe Ram Saran Dass and Shabha Ram before the sub-Registrar,  will  amount  to attestation, has no  merit.   The document  was  required  to be attested at the time  when  it  was actually  executed on 18.1.1961 by Kanwar Chander Raj Saran Singh. Since  no  one attested the document at that time, the  subsequent signatures  of  the  scribe  and Shabha  Ram  who  identified  the Mukhtiar-a-Aam  Janardhan  Sharma before the Sub-Registrar,  could not  fill  up the lacuna.  Under Sub-Section (2) of Section 35  of the  Registration  Act, the registering officer may, in  order  to satisfy  himself  that  the persons appearing before him  are  the persons  they represent themselves to be or for any other  purpose contemplated  by this Act, examine any one present in his  office. Thus   Ram  Saran  Dass  and   Shabha  Ram  only  identified   the Mukhtiar-a-Aam   Janardhan   Sharma  in   order  to  satisfy   the registering  officer.  In Timmavva Dundappa Budibal vs.   Channava Appaya  Kanasgeri (AIR (35) 1948 Bombay 322) it has been held that signatures  made by the Sub-Registrar while he made endorsement on the  document  admitting it to registration and the signatures  of the  identifying  witnesses made by them when they identified  the executant  before  the  Sub-Registrar cannot be  regarded  as  the signatures  of  attesting  witnesses.  Moreover, at  the  time  of registration  the  donor himself did not appear.  It was only  his Mukhtiar-a-Aam  Janardhan  Sharma  who   presented  the  same  for registration  on  his behalf.  The authorities relied upon by  the learned  counsel  for the appellant, are not at all applicable  to the  factsof  the  present case and are  clearly  distinguishable. Since,  there  was  no  attestation witness at  the  time  of  the execution  of  the  document of 18th of January, 1961,  the  lower appellate court rightly came to the conclusion that the gift deed, if is taken away as nt duly executed, the plaintiff cannot be held to  be the owner of the suit land because he claimed his title  on the basis of the gift deed alone.

     At  this  stage,  let  us extract the  relevant  section  in Transfer of Property Act and Evidence Act.

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     Transfer of Property Act:-

     S.3 In this Act, unless there is something repugnant in the subject or context, -

     "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 otther person sign the instrument in the  presence  and  by  the direction of  the  executant,  or  has received  from  the  executant a personal acknowledgement  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.  [only relevant portion is set out]

     "S.123  For  the  purpose  of making a  gift  of  immoveable property, the transfer must be effected by a registered instrument by  or  on  behalf  of the donor, and attested  by  at  least  two witnesses.

     For  the pourpose of making a gift of moveable property, the transfer  may be effected either by a registered instrument signed as aforesaid or by delivery.

     Such deliverry may be made in the same way as goods sold may be delivered."

     The Indian Evidence Act

     "S.   68.  Proof of executing of document required by law to be  attested - If a document is required by law to be attested, it shall  not  be  used as evidence untile one attesting  witness  at least  has been challed 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 atesting 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 (16 of 1908),  unless  its execution  by the person by whom it purports to have been executed is specifically denied.

     It  is common ground that the defendants have not raised any objection,  leave  alone specific objection as to the validity  of execution/attestation  of/in  gift deed.  Naturally, there was  no issue  on  this  aspect.   Even  the   witness  (PW  6)  was   not cross-examined  from  this angle.  Hence we are unable to  sustain the  contention  of Mr.  Verma that this being a pure question  of law  can  be  raised  at the appellate stage.   This  is  a  mixed question  of fact and law.  Proviso to section 68 of the  Evidence Act  dispenses with the necessity of calling an attesting  witness in proof of any document, except a will, which has been registered in  accordance  with the provision of the Indian Registration  Act when  there  is no specific denial by the party against  whom  the document is relied upon.

     In this context, we may usefully refer to the decision cited at the bar.

     In Venkata Reddi vs.  Muthu Pambulu (AIR 1920 Madras 588), a Division  Bench  of  the High Court had occasion to  consider  the

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scope  of  Section  68  of the Evidence Act.   After  setting  out Section 68 the Court observed as follows :-

     "I think the implication from the language of the section is that,  if  one attesting witness has been called (if there  be  an attesting  witness alive, etc.) then the document can be  accepted by the court (of court, if it believes his evidence) as evidenciny a  mortgage transaction as the necessary evidence insisted upon by S.   68, Evidence Act, of document required by law to be  attested has  been  given.   In  other words, the  document  can,  on  that evidence,  be treated by the court as having created the charge on immovable  property which it purports to create.  S.  68  requires that  only  one attesting witness (if alive) should be called  for the  purpose  of  proving  execution subject, of  course,  to  the condition  that witness is subject to the process of the Court and capable  of  giving evidence.  The lower appellate Court  however, held that either two attesting witnesses should be called when two are alive and that, even assuming that one only need be called, he should,  at  least, be made tto prove that another (or the  other) attesting  witness besides himself also saw the execution.   Hence it  held  that  the plaint document was not properly proved  as  a mortgage  document  as  one only of the  attesting  witnesses  was called  and he merely proved its execution by defendant 1 and  the attestation  by himself (that witness) and he was not asked  about any other attestor having seen the execution".

     While upsetting the above view of the lower appellate court, the learned Judges held as follows:

     "The  fact that the Evidence Act is ten years older that the Transfer  of Property Act has no relevancy in the consideration of this  question.  I might add that S.  69, Evidence Act, says that, if  no  such  attesting  witness  can be  found,  proof  that  the attestation   of  one  attesting  witness  at  least  is  in   the hand-writing  of that witness and that the signature of the person executing  the  document is in the handwriting of that  person  is proof  which might be accepted as sufficient by the Court.  If  S. 59,  Transfer of Property Act, is interpreted as we are invited to interpret   it   as  adding  another   requisite  (even   in   the circumstances  contemplated  by section 69, Evidence Act, that  is even  where  no  attesting witness is alive or  could  be  found), namely  direct  proof  that  two   attesting  witnesses  saw   the execution,  it would be practically impossible in most such  cases to  adduce  evidence  of third persons about  attestation  by  two witnesses and many old mortgage transactions could never be proved at  all  as such.  Documents, say about 28 years old, where it  is not  at all unlikely that the two attestors and the mortgagee have died  (life not being too long in this country), cannot be  proved at all to be valid documents unless some third persons who did not attest  but  merely  happened to be present at the  execution  and attestation  (a  very unlikely contingency) happened to be  alive, remembered  what happened long ago of a transaction at which  they were  casually present and could therefore be called to prove  the attestation  by  two attestors.  If the argument is pushed to  its logical  limit, then even S.  90, Evidence Act, which says that  a document  purporting  to be 30 years old, can be presumed to  have been  validly  executed and attested, must be deemed to have  been overruled by the privisions of section 59 of the later Transfer of Property  Act.   No  doubt  where the provisions  of  Section  68, Evidence  Act,  have been complied with by calling  the  attesting witness  to  prove  the  execution  by  the  mortgagor,  and   the attestation  by  himself  (the  witness)   and  the  document  may therefore  be  accepted by the court as prima  facie  sufficiently proved  to  be  a valid mortgage, that prima facie  proof  can  be rebutted  by  proof on the other side, that the other  witness  or

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witnesses  who has or have also apparently attestated document did not  really see its execution and that the document therefore  did not comply with the requirements of section 59, Act 4 of 1882."

     In  lachman Singh Vs.  Surendra Bahadur (AIR 1932  Allahabad 527)  a  Full  Bench of the High Court considered  the  issue  and answered as follows:-

     "Now  let us consider the merits of the arguments.  for  the appellants,  it is argued that by compliance with the privision of Ss.   68, 69 and 71, Evidence Act, a party succeeds only in making the  mortgage-deed, or any other deed, like a ded of gift  reuired to  be attested by at least two witnesses, admissible in  evidence but  in order to be able to show that the document is a valid deed of  mortgage  or a valid deed of gift, he must also prove  further that  it was attested by two witnesses.  It is conceded on  behalf of  the respondents and indeed the matter cannot be disputed  that where  the  validity  of the deed propounded either as a  deed  of mortgage  or as a deed of gift is specifically in question, on the ground whether or not, the requirements of Ss 59 and 123, Transfer of  Property Act, had been complied with, the party relying on the deed  must  prove  that  it  had been attested  by  at  least  two attesting witnesses.  But the question is where the mere execution of  a  document has to be proved either because of the case  being ex-parte  or because of a mere denial of the execution, whether it would  still be necessary to prove that the document was  attested by two attesting witnesses."

     "Where  a  mortgagee  sues to enforce his mortgage  and  the execution  and  attestation  of  the deed are  not  admitted,  the mortgagee need prove only this much that the morttgagor signed the document  in  the  presence of an attesting witness  and  one  man attested  the  document  provided the document on the face  of  it bears  the  attestation  of  more than one  person;   but  if  the validity of the mortgage be specifically denied, in the sense that the  document  did  not affect a mortgage in law then it  must  be proved  by the mortgagee that the mortgage deed was attested by at least two witnesses."

     Again  in Jhillar Rai vs.  Rajnarain Rai (AIR 1935 Allahabad 781) the High Court held as follows :

     "There  has  been a subsidiary argument that the  plaintiffs cannot  claim  to be co-shares, because the mortgage deed has  not been  proved.   The  argument is based on the provision  of  S.68, Evidence  Act.  It appears that the execution of the mortgage  was proved, but not by the production of marginal witness.  Under S.68 as  it  now  runs, it is not necessary to prove or  to  produce  a marginal  witness unless the mortgage is specifically denied.   It is  obvious that there would be no necessity to prove the deed  at all if it was admitted and consequently the section contemplates a distinction  between the position where execution is not  admitted and  a  position where execution is specifically denied.   In  the present  case the plaintiffs in the first paragraph of the  plaint stated  that  they  were  mortgagees under  the  deed  dated  23rd September,  1929, and that they had ben in possession of the plots in  question.  The defendants said in their written statement that they  did  not  admit this paragraph.  But it is  clear  from  the additional  pleas  that what they were questioning really was  not the  execution  of the deed but the fact of possession.  No  issue was  framed  clearly  on  the question  of  execution.   In  these circumstances it cannot be held that the execution of the mortgage was  specifically denied.  The mortgage was therefore sufficiently proved."

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     We  do  not  want  to add the citation  except  to  refer  a judgment of the Guwahati High Court in Dhiren Bailung vs.  Bhutuki &  Ors.   (AIR  1972  Guwahati  44), wherein  the  court  held  as follows:-

     "All  that  Section 68 demands before a  document  requiring attestation  can be used as evidence is that one attesting witness at  least  should  be  called  "for the  purpose  of  proving  its execution".   It has been stated above that one attesting  witness was  called  in the present case and he testified that  Sashi  and Paniram  had executed the mortgage deed Ex.  1 in his presence  by placing  their  signatures  on  it and that he  had  attested  the document.    Therefore,  the  requirements  of  Section  68   were evidently  satisfied.   However, the two courts below were of  the opinion  that  it  was incumbent upon the plaintiff  to  establish before  he could succeed in that suit, the attestation of the deed by  two  witnesses,  as  enjoined by section  59  of  Transfer  of Property  Act,  in the manner required by section 3 thereof  where the  expression  "attested"  is defined.  I find it  difficult  to endorse  that opinion.  AIR 1932 All.  527 (FB) Lachman Singh  vs. Surendra  Bahadur,  is  an  authority for  the  propositions  that Sections  68  & 69 of the Evidence Act "make a document  which  is attested  admissible  in  evidence if the  requirements  of  those sections  are  complied  with" and that "if the  documents  become admissible  in evidence they become admissible to prove what  they contain.   That  is to say, they would become admissible to  prove whether  a  mortgage had been executed or a gift had  been  made". There  seems  to  be no warrant for an argument,  the  Full  Bench observed  that  a  deed may be marely admissible and  yet  may  be incapable  of  being  read  as a document of  the  kind  which  it professes  to  be.  The Full Bench clinched the issue  by  stating further  that to make a mortgage deed or a gift deed admissible in evidence  as a deed of mortgage or gift, as the case may be, it is enough  to  comply with the provisions of section 68 or S.  69  of the  Evidence  Act.   However, it was added that if  the  question raised  is  whether the document did create a mortgage or gift  or not,  it must be proved that the requirements of law as  contained in  Sections  59  and  123, Transfer of Property  Act,  have  been complied  with.   I respectfully agree with these observations  of the  Full  Bench.  Therefore, the precise question that falls  for determination  in the present appeal is whether, on the  pleadings of  the parties, there arises a question whether the deed Ext.   1 does or does not create a mortgage."

     "To  sum up, I hold that the defendants had denied only  the execution  of the mortgage deed, that they had not challenged  its due  attestation,  that  the  legality of the  mortgage  deed  was assailed  on  the  specific ground that Sashi and Paniram  had  no exclusive  right  to  mortgage the land in dispute, and  that  the parties  went to trial only on the specific allegations adopted by them  in  their  written pleadings.  I hold further  that  in  the context of the parties, pleadings the plaintiff was called upon to prove  only the execution of the mortgage deed, that the execution is  proved  by  the  testimony of Harakanta  Duara,  an  attesting witness, and plaintiff’s father Tularam, and that the testimony of Harakanta   Duara  constitutes  enough  of  compliance  with   the statutory  requirements set out in the body of section 68.   Hence the mortgage pleaded by the plaintiff is proved beyond doubt."

     We  are  of  the  view  that the  above  extracts  from  the judgments  of  the  various  High Courts do  reflect  the  correct position  in  law.   In the case on hand PW  6  has  categorically stated  that he has signed as scribe, signed as witness and signed as  identifying  witness.   We also find his signatures  at  three places.   Nothing was elicited from this witness to disbelieve his

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statement  in  Chief Examination.  It is not denied that the  deed was registered as per the Indian Registration Act.  Therefore even on  merits  the  appellant has established the due  execution  and attestation  of  the  gift deed at the first page by the  side  of signatures  of  the  donor, two witnesses  have  subscribed  their signatures.   We,  therefore, hold that the lower appellate  court and  the High Court went wrong in allowing the defendants to raise the  plea  of  non-compliance of Section 123 of  the  Transfer  of Property Act and in holding that the gift deed was not proved.

     So  far as the case law cited by Mr.  Verma, learned  Senior Counsel  for the defendants, is concerned, we find that it may not be  necessary  to  refer the same so far as they  related  to  the points  that  identifying witness cannot be an attesting  witness; that  mere marking of exhibit does not amount to prove and that no one  except the ture owner can discharge possession as there is no dispute on these points.

     As  regards the cases cited on the issue of attestation,  we find  that Roda Framroze Mody vs.  Kanta Varjiyandas Saraiya  (AIR 1946 Bombay 12), and Vishnu Ramkrishna and Ors.  vs.  Nathu Vithal and Ors.  (AIR 1949 Bombay 266) relate to will and as such may not be  apposite  to the case o hand concerning gift deed.  In  Sarkar Barnard  &  Co.  vs.  Alok Manjary Kuari & Anr.  (AIR  1925  Privy Council   89),  Abinash  Chandra   Bidyanidhi  Bhattacharjee   vs. Dasarath Malo & Ors.  (AIR 1929 Calcutta 123), and sundrabai Sonba Tendulkar  vs.  Ramabai Jayaram (AIR 1947 Bombay 396) the question of    failure    to     raise      specific    denial    regarding execution/attestation  and the consequences thereof did not  arise and,  therefore,  those  cases  are not  quite  relevant.   In  N. ramaswamy Padayachi vs.  C.  Ramaswami Padayachi & Ors.  (AIR 1975 Madras  88)  factually  specific  denial was raised  and  in  that context  the judgment was delivered on the scope of Section 123 of Transfer  of  Property Act.  In Balappa Tippanna,  vs.   Asanqappa Mallappa  and  Another  (AIR 1960 Mysore 234), the Court  held  as follows :-

     "The  net  effect  of S.  68 is that if the execution  of  a document of gift is specifically denied, then an attesting witness must  be  called to prove it.  If, however, such execution is  not specifically  denied,  then it would not be necessary to  call  an attesting  witness  to prove the same.  But the document  all  the same  will  have to be proved.  The effect of the proviso is  that the due execution and attestation of the gift deed will have to be proved,  although it may be proved by calling a person other  than an attesting witness."

     Here  again  there is no quarrel on the proposition set  out above.

     Now  coming  to  the facts, the High Court is not  right  in proceeding that gift deed was not attested by any of the witnesses as  required  under  the  Transfer of Property  Act.   As  noticed earlier  the lower appellate court rested its conclusion about the gift  deed  on  the  worng assumption that  the  deed  itself  was executed  by a power of attorney and in the absence of such  power of  attorney,  and  as only the witness attesting  the  deed,  the execution  of  gift  cannot be upheld.  Apart from that,  we  have perused  the  original  document and we find that  two  witnesses, namely,  Ram Chander Sharma and Ram Saran Dass Sharma, have signed on  the  first  page of the document along side the  signature  of Kanwar  Chander  Raj  Saran Singh.  We do not know  how  this  had escaped  the  attention of the courts below.  At this stage it  is necessary  to point out that Ram Saran Das Sharma who was examined as  PW-6  has stated as follows.  The entire deposition  is  given

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below :-

     "I  know  Kanwar Chander Raj Saran singh son of Rao  Brijraj Singh.   I was employed with them for fifteen years.  I have  seen him, reading, writing and signing.  I can identify his signatures. I  am  the scribe of the gift deed (Hibbanama) Ex.  PW6/1.  I  had scribed  the  same  correctly on the instructions of  Chander  Raj Singh.   I had read it over to him and after accepting the same as correct,  he  had signed in my presence.  I have also signed as  a witness.   I  know  Shri Janardhan Sharma.  He was manager  and  a general  power of attorney.  He had the right to execute the sale. I also identify the signatures of Janardhan."

                                       (Emphasis supplied)

     Cross-examination

     "I  cannot tell the date of the deed of the general power of attorney  (mukhtiarnama).   I am not in possession of a copy  now. It  is incorrect to suggest that I was not present at the time  of registration.   My  signatures are also there as a  scribe.   Gift deed  (hibbanama)  was presented by Janardhan.  There has  been  a partition between Chander Raj Singh and his son, but I cannot tell the  year precisely, may be it took place in the year 1960-61.  It does not bear my signature."

     It  is  seen from the above that Ram Charan Dass sharma  has categorically  stated that he has signed the document as a witness apart  from  the  fact  that he has also  scribed  and  signed  as identifying  witness.   We  found three signatures  of  Ram  Saran Sharma  at different place in different capacities in the original gift deed.

     On  the  important point regarding attestation there was  no cross-examination  presumably this was not raised and hence ws not an  issue.   This being the position, we are unable to  comprehend how the lower appellate court and the High Court gave the findings against the plaintiff as noted above.

     The  gift  deed  was  executed by  the  original  owner  and presented  for registration by a duly authorised power of attorney and the document was duly attested by 2 witnesses, out of whom one was  examined  to prove the deed and nothing more is  required  to satisfy  the  requirements of Section 123 of Transfer of  Property Act,  particularly  when  no  specific denial  was  taken  to  the execution or attestation of the gift deed in the written statement or even subsequently before the trial court.

     In  the  result,  we  set aside the judgment  of  the  lower appellate  court  as  affimed by the High Court  and  resotre  the decree  of  the  trial court.  The appeal is allowed  with  costs, which we quantify at Rs.  5,000/-. .UP 10 2; Fixed-pitch, printer 1; -n -ml4 -PA4 -dFX-NORMAL -Fx -e -j; dumbp L.......T.......T.......T.......T.......T.......T.......T.......T....R