Orissa High Court
Brundaban Nayak And Ors. vs Gobardhan Biswal And Ors. on 3 November, 1989
Equivalent citations: AIR1990ORI232, AIR 1990 ORISSA 232
JUDGMENT S.C. Mohapatra, J.
1. Transfer of title by a registered deed of gift (Ext. 1) dated 26-2-1964 is the dispute in the suit out of which this Second Appeal arises.
2. While plaintiff claims title on the basis of Ext. 1, defendants assailed the same asserting that it was obtained by the plaintiff from defendant No. 1 fraudulently misrepresenting that the latter is required to execute a power of attorney. When defendant No. I suspected the contents of the documents which he was possessing, he got it read over since he does not know reading and writing except signing, to find the same to be a deed of gift in favour of the plaintiff. Accordingly, he revoked the same by a registered deed of cancellation (Ext. A) dated 6-11-1971.
3. Both the courts held that plaintiff acquired title on the basis of Ext. 1. Only point is whether Ext. 1 can be received in evidence as a valid instrument for transfer of title by defendant No. 1 in favour of the plaintiff.
4. Under Section 123 of the Transfer of Property Act, immovable property is to be transferred by a registered deed of gift attested by at least two witnesses. Since term of disposition i.e. gift is to be reduced to writing, the document is to be proved as provided in Section 91 of the Evidence Act. Mode of proof of a document required by law to be attested is to prove as provided in Section 68 which prohibits use of the documents as evidence unless at least one of the attesting witnesses is called to prove the execution which also includes attestation. Since a gift deed is to be attested by at least two witnesses, its execution can be said to be proved only when it is proved that the donor has signed the deed of gift or acknowledged his signature to the two witnesses who have attested the same and those witnesses have signed in presence of the donor. Normally, both the doner and the two attesting witnesses are required to be examined for proving the gift. However, Section 68 gives a concession to the party to call one of the attesting witnesses to prove execution of the document. This is mandatory. Legislature, however, made exceptions so that in the circumstances provided in proviso to Section 68 and Sections 69 to 71 the mandatory provision is not to be insisted by the Court to be complied with.
5. Proviso to Section 68 exempts a party from proving the execution of the gift deed by calling at least one of the attesting witnesses alive and subject to process of the Court if the gift deed is registered and the donor does not deny the execution specifically. Section 69 provides that the attesting witnesses not being found or being in United Kingdom, requirement of Section 68 execution of a gift deed can be proved by other evidence. Section 70 provides that one of the attesting witnesses need not be examined to prove execution of a gift deed if the donor admits the execution himself and the same shall be proof of its execution. Legislature took note of a circumstance where an attesting witness denies or does not recollect the execution of the gift deed. In Section 71, it has been provided that in such circumstances, execution of the gift deed may be proved by other evidence.
6. In the present Second Appeal the question to be examined is whether the deed of gift (Ext. 1) has been proved properly under Section 71 of the Act since PW 4, one of the attesting witnesses has denied its execution and the other attesting witnesses not being examined, execution of Ext. 1 has been proved by PW 1, the scribe of the document.
7. Plaintiff took steps to examine both the attesting witnesses to satisfy the mandatory provision in Section 68 of the Evidence Act. PW 4 was examined after his attendance was secured issuing proclamation as required under Order 16, Rule 10, C.P.C. When he denied execution in his examination on 20-11-1975, plaintiff sought for an adjournment and prayed for issue of warrant of arrest against the other attesting witnesses. Trial court adjourned directing plaintiff to file requisites to issue warrant of arrest fixing 24-11-1975 at the risk of the plaintiff. On 24-11-1975 plaintiff prayed for adjournment to find out the whereabouts of the witnesses alleging that the said attesting witnesses has absconded on small hours of 22-11-1975 and his present whereabouts could not be traced out. Process Server also reported that the witness has gone with his wife during early hours of 22-11-1975 to some place unknown to the witnesses. Trial court rejected prayer of the plaintiff on the ground that he should have been more vigilant in producing his witnesses on or before the date fixed for hearing.
8. In case applicability of Section 71 would depend upon exhausting examination of all attesting witnesses, plaintiff has not been given adequate opportunity to examine the other attesting witness and the suit has to be remitted back to give opportunity to the plaintiff to secure attendance of the said witness. Question of securing attendance of a witness by issue of proclamation under Order 16, Rule 10, C.P.C. arises only when he avoids to appear. In the present case, plaintiff did not know that PW 4 would deny execution of Ext. I. When he so denied, plaintiff had to seek assistance of the Court. Process Server could not serve the process since the witness had left to an unknown place. Plaintiff sought adjournment to find out the address of the witness so that process can be served on him. Trial Court ought not to have refused the prayer. When question was raised in the appellate court, it held that his examination is not necessary. Plaintiff cannot be put to a prejudicial situation in such circumstances and justice demands that he gets full opportunity to examine the other attesting witness if his examination is necessary for proving execution of Ext. 1.
9. Accordingly, it is to be examined whether the other attesting witnesses is to be examined under Section 68 if the one examined; denies execution of the document.
10. Relying upon the Division Bench decision of Bombay High Court, reported in AIR 1949 Bom 266 (Vishnu Ramkrishna v. Nathu Vithal), Mr. R. K. Mohapatra, learned counsel for the appellant submitted that one attesting witness having denied execution of Ext. 1 other attesting witness was required to be examined and until the said witness is also examined to deny the execution or does not recollect such execution, there is no scope to prove the execution of Ext. 1 under Section 71.
11. In the aforesaid Bombay decision, one of the attesting witnesses was examined. He proved attestation by him. He could not prove attestation by another attesting witness who, though alive and subject to process of the Court, was not examined. It was held that Section 71 of Evidence Act cannot be requisitioned to prove the document by other evidence. Said decision is distinguishable since the witness examined did not deny execution. He failed to prove attestation by the other attesting witness.
12. Division Bench of Patna High Court in the decision reported in AIR 1938 Patna 301 (Mt. Manki Kaur v. Hansraj Singh) held that duty imposed on the party under Section 68 is discharged by examining one of the attesting witnesses and in case he denies or does not recollect execution of the document, such party can prove execution by other evidence as envisaged under Section 71. Wort, J. observed :
".....The question which we have to ask ourselves is, what is the meaning of the expression in Section 71, "If the attesting witness denies or does not recollect the execution "?
Does it mean that a witness was called or available whose absence was not otherwise excused under Sections 68 and 69, Evidence Act, or does it mean one witness of whom Section 69 speaks? Speaking for myself I would very much rather decide this question after a much more careful consideration than is possible in the circumstances of this case. But I do most certainly hold the view that whatever the English law may be, Sections 68 to 71 Evidence Act, do not necessarily state it, and the matter is governed by the expression found in Section 68, which is as follows : "until one attesting witness at least has been called for the purpose of proving its execution". If, the words had been at least one attesting witness is called to prove and has proved execution", the matter would have been different and I do not think in that case that there could be any doubt that the argument advanced by the appellant would be acorrect one. But in my view the words I have read indicate that it is incumbent upon the plaintiff to call at least one witness, and if that witness denies or does not recollect the execution of the document, then the execution may be proved aliunde".
Verma, J. separately observed :
"Now, looking at Section 68, Evidence Act, I have no doubt in my mind that that section points out the way in which a document, which is required by law to be attested, should be proved. It provides that at least one of the attesting witnesses, if alive and subject to the process of the Court and capable of giving evidence, should be called for the purpose of proving the execution of the document. From this it is clear that it is not necessary that for the purpose of proving a document all the attesting witnesses should be examined : even one could come and prove it if he was capable of doing so. Then there is another set of circumstances in which no witnesses are available or witnesses are in the United Kingdom. Section 69, Evidence Act refers to those circumstances and provides that in such a case the handwriting of the attesting witnesses may be proved by other witnesses. But when a witness has been called and is not in a position to prove the document of rather, to quote the words of the section, "he denies or does not recollect the execution of the document", then in that case the execution may be proved by other evidence under Section 71, Evidence Act. In dealing with this matter we have clearly to distinguish between two different sets of circumstances one in which no witness has been called, and the other in which one witness at least has been called".
13. There is no doubt that Bombay view is supported by English law on the subject as it stood prior to 1938 necessitating to a document required by law to be attested, to be proved by calling one or more of the attesting witnesses. But law in England has been changed by the Evidence Act, 1938 where it is provided that except wills and other testamentary instruments, all other instruments required by law to be attested, can be proved as if no attesting witness is alive. Where Section 68 does not require that the execution of such a document is to be proved by one or more attesting witnesses as was in the English law prior to 1938, Patna view is to be preferred to Bombay view.
14. Some commentaries have observed that in the decision of Privy Council reported in AIR 1939 PC 117, Surendra Bahadur Singh v. Behari Singh view of Bombay High Court finds recognition and later view of Patna High Court is not corect. I am not able to find any discussion in the Privy Council decision in this regard. In the said case the main question was whether one attesting witness having failed to prove attestation, Sub-Registrar who registered the document can be treated as an attesting witness to prove execution. Section 68 does not put a bar for examining more than one attesting witness. Effect of non-examination of other attesting witnesses when the attesting witness examined denies execution has not been considered by the Privy Council.
15. The only substantial question of law on which the Second Appeal was admitted having failed, this appeal is dismissed with costs.