IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 SA.No. 755 of 2000(F) ------------------------------- AS.183/1997 OF DISTRICT COURT, KASARAGOD. OS.203/1996 OF PRINCIPAL MUNSIFF COURT, KASARAGOD. .................... APPELLANTS/APPELLANTS/DEFENDANTS 2 & 5 TO 9: ------------------------------------------------------------------------------- 1. JOHN D' SOUZA, AGED 49 YEARS. 2. BERNARD D' SOUZA, AGED 36 YEARS. 3. PAUL D' SOUZA, AGED 34 YEARS. 4. JOHNY D' SOUZA, AGED 29 YEARS. 5. SINDHIA D' SOUZA, AGED 26 YEARS. 6. THOMAS, AGED 64 YEARS. 1ST APPELLANT IS THE SON OF JILLU SOUZA, CULTIVATOR, RESIDING AT ARANTHODU OF MADHUR VILLAGE, P.O. MADHUR, KASARAGOD TALUK AND DISTRICT. APPELLANTS 2 TO 5 ARE THE CHILDREN OF KARMINA SOUZA, CULTIVATORS, RESIDING AT MALLA OF MULIYAR VILLAGE, P.O. MALLA, KASARAGOD TALUK AND DISTRICT, THE 6TH APPELLANT IS THE SON OF PETHRU, CULTIVATOR, RESIDING AT MALLA OF MULIYAR VILLAGE, P.O. MALLA, KASARAGOD TALUK AND DISTRICT. ALL ARE CHRISTIANS. BY ADV. SRI.S.VINOD BHAT. RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 1, 3 AND 4: -------------------------------------------------------------------------------------------------------- 1. NOVAL D'SOUZA, AGED 53 YEARS. 2. PIADA RODRIGUES, AGED 72 YEARS. 3. GRACY D'SOUZA, AGED 44 YEARS. SA.No. 755 of 2000(F) 4. JELLIANA D'SOUZA, AGED 39 YEARS. 1ST RESPONDENT IS THE SON OF LATE JILLU SOUZA, THE 2ND RESPONDENT IS THE WIDOW OF LATE JILLU SOUZA, AND RESPONDENTS 3 AND 4 ARE THE DAUGHTERS OF LATE JILLU SOUZA, ALL ARE CHRISTIANS, RESPONDENTS 1 AND 2 ARE CULTIVATORS, RESIDING AT ARANTHODU OF MADHUR VILLAGE, P.O. MADHUR, KASARAGOD TALUK AND DISTRICT. THE 3RD RESPONDENT IS A STAFF NURSE AND THE 4TH RESPONDENT IS EMPLOYED IN A PRINTING PRESS. RESPONDENTS 3 AND 4 ARE RESIDING AT NO.92, CHAMUNDIPURAM, MYSORE CITY, MYSORE POST, KARNATAKA STATE. R1 BY ADV. SRI.L.GOPALAKRISHNAN POTTI, SRI.A.DINESH RAO. R3 & R4 BY ADV. SRI.SURESH KUMAR KODOTH. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P.BHAVADASAN, J. ------------------------------------- SA No.755 of 2000-F ------------------------------------- Dated this the 22nd day of December 2011 Judgment Defendants 2 and 5 to 9 in OS No.203/96 before the Munsiff's Court, Kasaragod, which was a suit for partition in which a preliminary decree was passed by the court below, are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The facts fall within a very narrow compass. It is not in dispute that the properties of which partition was sought, belonged to one Jillu Souza, who is the father of the plaintiff and defendants 2 to 4 and the husband of the first defendant. Defendants 5 to 8 are the children of one of the daughters of Jillu Souza who died after Jillu Souza. The 9th defendant is the father of defendants 5 to 8. In the plaint, it is alleged that till his death, the father of the plaintiff was in absolute possession and enjoyment of the SA 755/00 2 suit properties. Inspite of repeated demands for partition, the defendants were not amenable and so, he was constrained to lay the suit. 3. In the written statement filed by the first defendant, defendants 2 to 5 and 7 contended that the suit properties were not available for partition as they were the subject matter of OS No.263/95. They also relied on Exts.B8,B9,B10,B12 and B13 gift deeds to non-suit the plaintiff. 4. The first defendant remained ex parte. The third and fourth defendants also set up a gift deed namely Exts.B12 and B13, to non-suit the plaintiff. 5. On the above pleadings, issues were raised. Evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A6 from the side of the plaintiff. The contesting defendants had defendants 1 to 3 examined and Exts.B1 to B13 marked. 6. Both the courts below, on an appreciation of the evidence, came to the conclusion that execution of the SA 755/00 3 gift deed namely, Exts.B8, B9,B10,B12 and B13 were not proved and also that there was no proper registration and therefore, the transactions evidenced by those documents are void and not binding on the plaintiff. It was also found that neither Ext.B5 nor Ext.B11 one being a compromise and another being a settlement deed can come to the aid to the contesting defendants to nonsuit the plaintiff and finding that plaint B schedule properties are available for partition, a preliminary decree was passed by the trial court, which was confirmed in appeal. 7. Notice is seen issued on the following questions of law raised in the second appeal : 1.Whether the lower courts' observation that the gift deeds have not been properly presented for registration is true and valid ? 2.Whether the lower courts are justified in invalidating the gift deeds on the ground that they are not properly presented for registration as there was no challenge by the plaintiff as to the proper registration of the gift SA 755/00 4 deeds ? 3.When the plaintiff's attack was only regarding the mental capacity of the deceased Jillu Souza to execute the documents, are the lower courts justified in holding that the documents have not been properly presented before the Registrar for registration ? 4.Are the lower courts justified in setting aside the gift deeds in favour of defendants 3 and 4 also when it is in evidence that they themselves had presented the gift deeds for registration since they are competent to do it ? 5.Whether there is sufficient evidence to displace the presumption available for a registered document under the provisions of the Evidence Act and the Registration Act ? 8. Mr.Vinod Bhatt, learned counsel for the appellant pointed out that both the courts below have misdirected themselves on facts and in law. It is pointed out that a petition was filed by the contesting defendants before the court below pointing out that the originals of SA 755/00 5 Exts.B8, B9 and B10 were with defendants 3 and 4 and they had called upon them to produce the said documents. They neither produced the documents nor did they give any reply to the said petition. The court below was also not inclined to pass any orders on the said petition. It was under these circumstances that the defendants concerned were constrained to produce the certified copies of the documents. This vital aspect has been omitted to be noticed by the court below and it finds fault with the defendants concerned for not producing the original documents. It is pointed out that those defendants had taken all steps necessary in law to set a stage for producing a secondary evidence. The reason given to reject those documents cannot be countenanced. The learned counsel also pointed out that much is said about the presentation of the document for registration and taking of the documents from the office of the Registrar. Attention was drawn to the fact that there was no pleading to the effect that there was any infirmity in registration and that SA 755/00 6 documents are void for want of proper registration in the absence of any pleading to that effect, it is pointed out that the courts below could not have been gone into that issue at all. The reasons given to reject Exts.B5 also cannot be supported in law. The learned counsel drew attention of this court to the observation of the trial court that the signature found on Ext.B5 compares well with the admitted signature of the plaintiff and it that be so, it should have been held that it was executed by him. The reasons given go hold otherwise are unjustifiable. The learned counsel also pointed out that the finding that the gift deed has not been accepted, cannot be countenanced. The execution of Ext.B11 by the first defendant in favour of the second defendant is clear indication of the fact that the gift has been accepted. Even otherwise, it is pointed out that unlike in the case of Mohammedan gift, evidence regarding acceptance of gift in the present case needs to be only very slight and the recital in the document is sufficient to come to the conclusion that there has been an SA 755/00 7 acceptance of the gift. These aspects have not been properly considered by the lower courts and therefore, the judgment and decree are unsustainable, so contends the learned counsel for the appellants. 9. The learned counsel for the respondents, on the other hand, brought to the attention of this court, the definition of attestation in the Transfer of Property Act and also Section 123 and pointed out the necessity for proper attestation of the gift deed. Referring to the evidence of DW3, who is the attesting witness to almost all the gift deeds, it was pointed out that there is no statement of DW3 that the donor who executed the various gift deeds had seen the attesting witnesses sign the document. This important aspect is conspicuously absent in the evidence of DW3 and that shows that there was no proper attestation for proof of execution at all. It is also pointed out by the learned counsel for the respondents that it was not proper on the part of the contesting defendants to rest content by calling upon defendants 3 and 4 to produce the SA 755/00 8 originals of Exts.B8 to B10. They could have obtained the documents from the Registrar's office showing that the originals were in fact returned to defendants 3 and 4. The learned counsel also pointed out that Ext.B5 which is a document executed only about three or four months prior to the date of execution of the so called gift, contains the full and admitted signature of Jillu Souza. It is contended that the condition of Jillu Souza was progressively worsening. It is difficult to believe that his signature would differ so much as could be seen from Exts.B8 to B12 and B13. A reading of the evidence of DW1, according to the learned counsel, clearly shows that some of the beneficiaries had taken active part in the drawing of gift deeds concerned. The learned counsel went on to point out that both the courts below have considered the evidence in detail and have come to the conclusion that the gift deeds have not been proved. This, according to the learned counsel, is essentially a finding of fact, based on appreciation of evidence in the case and no question of law arises in the SA 755/00 9 second appeal and it is only to be dismissed. 10. Section 123 of the Transfer of Property Act (hereinafter referred to as the Act) deals with gift deeds, which reads as follows : “123. Transfer how effected - For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered.” Attestation is defined in Section 3 of the Act 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 SA 755/00 10 seen the executant sign or affix his mark to the instrument, or has seen some other person sing 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.” Section 68 of the Evidence Act deals with proof of documents which are to be compulsorily registered. The said provision reads as follows : “68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as SA 755/00 11 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 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.” 11. In the case on hand, the gift deeds relied on by the contesting defendants are specifically disputed by the plaintiff. That means, Section 68 of the Act comes into play and it becomes necessary to examine at least one of the attesting witnesses to prove attestation and execution of gift deeds. Exts.B8 to B10, B12 and B13 are the gift SA 755/00 12 deeds in favour of defendants 3 and 4. Exts.B8 to B10, B12 and B13 have been found against and there is no appeal by defendants 3 and 4 against the finding as regards Exts.B12 and B13. In this case, we are concerned only with Exts.B8 to B10. 12. It may be possible to say that as regards the question of infirmity in registration, the findings of the courts below are not very happy. There is some substance in the contention taken by the appellants that there was no pleading regarding the defect in registration. The contesting defendants were taken by surprise at the time of evidence that evidence was adduced with pleadings. In the absence of a pleading, probably it was not proper to go into that question. 13. Coming back to the attestation of the document and proof of attestation and execution of the document, the evidence of DW3 is crucial. His evidence shows that he is the attesting witness to Exts.B12 and B13. He is the second attesting witness in Exts.B8,B9 and B10 SA 755/00 13 also. He deposed that the execution was on the same date. He would also depose that all the documents were read out to the donor and he has signed the deeds knowing fully aware of the contents and he was in a sound disposing state of mind. Nowhere in his evidence, it is stated that the executor of the gift deeds, especially Exts.B8 to B10 i.e., Jillu Souza had seen DW3 affixing his signature on the respective documents. 14. One may now return to the definition of attestation extracted above. One may refer to the refer to the words which read as follows : “.....and each of whom signed in the presence of the executant but it shall not be necessary that such witnesses shall have been present at the same time and no particular form of attestation shall be necessary.” That means, the attesting witness called upon to give evidence must depose before court that he has attested the document with necessary animus in the presence of the executant. This is an essential ingredient of attestation. SA 755/00 14 Probably, only one of the attesting witnesses alone needs to be called to give evidence regarding execution and attestation. He may have also to depose regarding the attestation by the other witness also. One need not go into that question for the simple reason that only one attesting witness was called and he does not say in so many words that the executant of Exts.B8 to B10 had seen him affixing his signature on the document. That means, the documents Ext.B8 to B10 do not satisfy the requirements of law. Thus, though not for the reasons stated by the courts below, the conclusions reached by them seem to be justified. There is no proof of proper execution and attestation of the document and therefore, the courts below are fully justified in refusing to accept Exts.B8 to B10, which is the subject matter of the appeal. The result is that the second appeal is liable to be dismissed. I do so. However, there will be no order as to costs. P.Bhavadasan, Judge SA 755/00 15 sta SA 755/00 16