Patna High Court
Jagdeo Chaudhary And Anr. vs Deo Chaudhary And Anr. on 23 July, 1957
Equivalent citations: AIR1958PAT566, AIR 1958 PATNA 566
JUDGMENT Kanhaiya Singh, J.
1. This is a plaintiffs' Second Appeal. The facts necessary for the disposal of this appeal are as follows. Sheogulam Chaudary deceased owned and possessed 6.86 acres of kasht land in village Ghosia, Tola Ramnagar. He died 14 or 15 years prior to the institution of the suit leaving him surviving his widow Mostt. Dhanwantia. On 24-11-1924 the defendants obtained a money decree against Sheogulam and put the decree into execution in Execution Case No. 2290 of 1936 and purchased the aforesaid land at auction on 12-7-1937 and subsequently obtained delivery of possession on 1-12-1937.
By two deeds of gift dated 23-11-1944, exhibits 2 and 2(a), Dhanwantia transferred this land to Jatoo Chaudhary. Jatoo instituted this suit on 18-11-1947 for a declaration of his title to the disputed land and for confirmation of possession or, in the alternative, recovery of possession thereof. His case was that the defendants had not acquired any title by virtue of the auction sale in Execution Case No. 2290 of 1936. He alleged, further, that the defendants were not in possession and that Dhanwantia, after the gift, put him into possession.
He died during the pendency of the suit and his nephew and widow, who are the appellants before this Court, were substituted in his place. The defence was that the gift was collusive and fraudulent and conferred no valid title on the plaintiffs, that the defendants had acquired valid title by purchase at the auction sale and obtained possession and that the plaintiffs were never in possession.
2. The learned Munsif held that the deeds of gift in favour of Jatoo were invalid and inoperative and were not acted upon and the plaintiffs never obtained possession of the disputed land. He held further that the defendants had acquired the disputed land at auction and were in possession. He, therefore, dismissed the suit.
3. The learned Subordinate Judge, however, held that the defendants had not acquired a valid title by virtue of their purchase at the auction sale for the simple reason that the execution was levied not against Dhanwantia who was then the sole surviving representative of sheogulam but against another person. He held that the auction sale had not the effect of destroying the title of Dhanwantia. As regards the title of the plaintiffs he, held that the deeds of gift were invalid for want of proper attestation, and, therefore, he held that the plaintiffs had not acquired any title.
Since, however, the defendants were found to be in possession of the disputed land, he unsuited the plaintiffs. The decree of the learned Munsif was, therefore, affirmed, though on different grounds.
4. Now, there is no dispute that the title of the respondents to the disputed land is imperfect. There is no question of limitation in this case, since the suit was instituted within twelve years of the date of delivery of possession to the defendants. The only question is whether the plaintiffs had acquired valid title to the disputed land. If they had acquired good title, they will be entitled to a judgment in their favour.
The determination of this question depends upon the validity of the deeds of gift. Both the Courts held that the deeds of gift were invalid, because they were not attested by two witnesses as required by law.
5. Prima facie, the deeds of gift had been attested by two witnesses, namely Ramsewak Chaudhary (P. W. 1) and Dasrath Prasad Chaudhary (P. W. 4). The lower appellate court discarded the evidence of Ramsewak, because he did not say anything regarding execution in his examination in chief. The evidence of P. W. 4 was rejected, because he did not disclose whether he attested the deeds in presence of the executant.
In my opinion, the Courts were wrong in holding that there was no legal attestation. They have not properly appreciated the evidence of Dasrath (P. W. 4). He deposed as follows:
"I signed the deeds as an attesting witness at the instance of Dhanwantia, Ramsewak signed for Dhanwantia and she put her pen mark on it. It was done in my presence. It is marked Exts. 2 and 2 (a). The contents were read over in my presence. I only signed the deeds and went away. When I went to Dhanwantia, Jatoo, Jagdeo and Ramsewak were there."
This evidence clearly shows that Dasrath attested the deeds in presence of Dhanwantia. It is difficult to accept the contention that he signed it before Dhanwantia had executed the deeds of gift. His positive evidence is that when he went to Dhanwantia, Jatoo, Jagdeo and Ramsewak were there. His further evidence is that Ramsewak signed for Dhanwantia and she put her thumb mark on it in his presence. There can be no doubt, therefore, that Dasrath was an attesting witness, because the documents were executed in his presence and he attested the documents in presence of Dhanwantia.
The only question is whether Ramsewak (P. W. 1) can be regarded as an attesting witness. The execution of both the deeds is in similar terms, which are as follows:
"Sd. Mosstt. Dhanwantia. I executed the deed of gift and remitted the consideration. I got the deed read over to me and understood the same. It is true and correct. By the pen of Ramsewak Chaudhary." Just below this, Ramsewak Chaudhary has made the following endorsement: "Sd. Ramsewak Choudhary. Mostt. Dhanwantia made a pen mark in my presence. By my own pen."
In his cross-examination Ramsewak has made a clear statement that he was present when the deed of gift was executed in favour of Jatoo. The question is whether it is a proper attestation. The word 'attested' has been defined by Section 3 of the Transfer of Property Act which is 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."
The definition will show that in order to constitute valid attestation the essential conditions are, (1) there must be two attesting witnesses; (2) each of them must have seen the executant sign or affix his mark to the instrument; and (3) each of the two attesting witnesses must have signed the instrument in the presence of the executant. The attestation consists in witnessing the fact of the execution of a document.
If the witnesses present there have seen the executant executing the document, it is enough. Now, the execution may be effected either by signature or by affixing a mark. If each of the attesting witnesses had seen the executant either sign or affix his mark, it will be sufficient. In the present case, the evidence of Dasrath shows that Ramsewak was present when Dhanwantia put her pen mark on the documents.
The evidence of Ramsewak himself shows that he was present when the deeds of gift were executed in favour of Jatoo. From the endorsement on the deeds of gift made by Ramsewak quoted above it will appear that Dhanwantia executed the documents by affixing her mark thereto and Ramsewak has noted that Dhanwatia made a pen mark in his presence. It is this execution by Dhanwantia which has been referred to by him in his deposition. It will appear, therefore, that Ramsewak saw Dhanwantia executing the two deeds of gifts by affixing her pen mark to them.
In the case of Dinamoyee Debi v. Son Bihari Kapur 7 Cal WN 160 (A), the facts were as follows: The suit was based upon a mortgage bond executed by one Jagat Tarini Debi whose name was written by one Parbati Churn Mukherji. Parbati Churn did not sign as a witness, but he wrote his name below the name of Jagat Tarini on the right-hand top corner. Parbati was examined, and he said that he had seen Jagat Tarini put her mark, and that he had written his name at her request.
On these facts, their Lordships of the Calcutta High Court held that Parbati Churn was an attesting witness to the mortgage bond. The present case stands on a higher footing. Ramsewak had endorsed on the deeds that Dhanwantia had put pen marks in his presence. In other words, Ramsewak had witnessed Dhanwantia executing the deeds of gift by affixing her pen marks to them. There is no reason why Ramsewak will not be regarded as an attesting witness.
6. It was contended, however, that Ramsewak had in fact executed the documents on behalf of and by the direction of Dhanwantia and, therefore, he could not be an attesting witness. There is no foundation for this argument. There can be no quarrel with the general proposition of the law which is now well settled by authorities that a person who signs on behalf of the executant of a document cannot also sign as an attestor of it.
Was this really the position in the present case? ,It is true that there is an endorsement on each of the deeds of gift to the effect that Dhanwantia executed them and remitted the consideration and that the deeds were read over to her and she understood the same and they were true and correct. The question is, does this endorsement amount to execution of the documents? This is obviously not the execution portion of the documents, and Ramsewak had not been authorised by Dhanwantia to execute them on her behalf.
If this contention were accepted, then the endorsement by Ramsewak on the deeds that Dhanwantia had affixed her pen marks to them in his presence would be meaningless. The position that emerges is that the execution in the present case consisted in Dhanwantia's affixing her pen marks to the deeds of gift. As will appear from the definition of the word 'attested' in Section 3 of the Transfer of Property Act, the executant may execute the document by (1) signing it; (2) by affixing his mark to it; or (3) by asking some other person to sign it on his or her behalf.
Of the three alternative modes of execution, 'the second one was adopted in the present case. In the case of Govind Bhikaji v. Bhan Gopal, ILR 41 Bom 384: (AIR 1916 Bom 123) (B), it was held that the execution was completed when the executant made his mark and the object of the scribe in describing the mark was to authenticate the mark, that is, to vouch the execution.
Similarly, in this case also the execution of the documents was completed when Dhanwantia affixed her pen marks to them, and the aforesaid endorsement by Ramsewak was nothing but authentication of the execution by her. This contention, therefore, cannot be accepted as correct. It is clear that Ramsewak was an attesting witness. It follows from the above that the facts found in the present case constitute sufficient proof of due attestation to satisfy the terms of Section 3 of the Transfer of Property Act, and it must be held that Ramsewak and Dasrath were two attesting witnesses and they had signed the instruments in the presence of the executant. The deeds of gift were, therefore, validly attested.
The result is that the plaintiffs must be held to have acquired valid title to the disputed land. As the title of the defendants by virtue of the purchase at the auction was imperfect, the possession of the defendants was as trespassers, and the plaintiffs were entitled to recover possession on the strength of their title. Therefore, the judgments of the Courts below cannot but be set aside.
7. In the result, the appeal is allowed with costs, the judgments and decrees of the Courts below are set aside, and the suit of the plaintiffs is decreed with costs throughout.