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[ In the High Court of Andhra Pradesh, S.A. No. 525 of 1972. ] 26/06/1973
Advocate(s) : N.C.V. Ramanujachari. R1, S. Venkatareddy, M. Ramaiah., R2, Not in person or by .
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  "1973 (2) ALT 180"  ==   ""  

    Venkatarama Sastry J.1. Plaintiff is the appellant in this second appeal. He filed the suit O.S. 27 of 1969 on [the file of Subordinate Judge's Court Tanuku for recovery of possession of an extent of Ac. 1-33 cents of land situated in Mallipudi Village of Tanuku Taluk.2. Plaintiff based his title upon Ex A. I a gift deed dated 30-11-1944 executed by one Veeravalli Mangamma in his favour giving him the vested remainder in the suit property and reserving for herself the life estate. According to the plaintiff Mangamma revoked this document on 28-2-1945 by Ex. B. 4 but it was neither true nor a valid document. Mangamma died in the year 1961 and the present suit was filed originally on 4-2-1963 in District Munsif's Court Tanuku. After the entire evidence was recorded in that court it found that the suit exceeded the pecuniary jurisdiction of that court and therefore returned the plaint to the plaintiff for presentation in proper Court. Thereafter it was presented before the Sub-Court Eluru on 2-1-1967 where it was numbered as O.S. 15 of 1967. On transfer from that court it was tried and disposed of by the Sub Court Tanuku. First defendant is the purchaser of the suit property from Mangamma by Ex B. 3 dated 29-12-1958. Second defendant happens to be his lessee.3. First defendant in his written statement pleaded that the gift deed in plaintiff's favour is not validly executed or legally attested one. There was no delivery of possession by Mangamma of the property gifted nor was there any acceptance by the plaintiff. The gift is invalid and inoperative in law. He has put the plaintiff to strict proof of his title. He states that he has purchased for valid consideration from Mangamma who has previously revoked the gift by Ex. B. 4 dated 28-2-1945. The revocation was a valid one. His further plea was that the gift deed was originally executed on 18-11-1944 on two stamp papers that on 30-11-1944 that first stamp paper in the gift deed was removed and two other stamp papers have been substituted therein. It was not executed on 30-11-1944. It was presented for registration on 6-12-1944 and was registered. The document dated 30-11-1944 is a fraud on the stamp law and the said document is invalid.4. On the above pleadings the trial court framed six issues. The trial Judge took up Issue No. 2 relating to the revocation of the gift deed first and held it against the defendant that issue. It was found that the revocation was not valid. On issue No. 1 relating to the settlement deed marked as Ex. A-1 d/30-11-1944 claimed to be the basis of title for the plaintiff. The trial court held that issue in favour of the plaintiff and against the defendants. As a result of these findings on the main issues the suit was decreed for possession of the property and future profits and for costs.5. First defendant carried the matter in appeal A.S. 7 of 1970 to the District Court West Godavari at Eluru. The learned appellate Judge reversed the decision of the trial Court and dismissed the suit holding that the suit document Ex. A. 1 is not properly executed or validly attested 6. Sri N.C.V. Ramanujachari learned Counsel appearing for the appellant has canvassed the findings of the lower appellate court by stating that there is ample evidence on record to show that the document Ex. A. 1 was validly executed by Mangamma and was properly attested. He further relied upon the registration endorsement contained in Ex. A. 1 which shows that there was an admission about the execution by Mangamma before the Sub Registrar in the presence of attesting witnesses who also identified her before the Sub Registrar and that was sufficient proof of execution and attestation. He has fairly conceded that there was note-execution on 30-11-1944 but he wanted to contend relying upon some decision which will be presently referred to that the alteration of the date on the document could not be material if there was consent between the parties to the document about the alteration. He also placed great reliance upon a decision of this court in D. Ramireddi v. K. Rama-Lakshmamma 1968(1) An.W.R. 359 wherein the endorsement about registration of a document was relied upon as proof of due execution. On the other hand Sri Ramaiah learned counsel for the respondents placed reliance upon two decisions in Sheik Kachu v. Md. Ali Mohmud A.I.R. 1927 Cal. 926 and in Santilal v. Kamala Prasad A.I.R. 1951 S.C. 477 and contended that there is neither proof of execution nor proper attestation in this case and the finding given by the lower appellate court cannot be altered.7. The lower appellate court has taken some facts as admitted in its judgment. Both the parties did not challenge the correctness of those facts. They are the following: On 18-11-1944 two stamp papers bearing Nos. 5842 and 5843 each of the value of Rs. 7-50 purchased in the name of Mangamma on 11-11-1944 were utilised for executing the gift deed in favour of the plaintiff in respect of the suit property. Both these stamp papers bore the thumb impressions of Mangamma and the gift deed thus executed by Mangamma on 18-11-1944 was attested by D.Ws. 1 and 3 while D.W. 2 scribed it. Ex. B. 1 is the stamp paper bearing No. 5842 while the third sheet of Ex. A. 1 is the stamp paper bearing No. 5843 D Ws. 1 and 3 attested the third sheet i.e. Ex. A.I. The gift deed thus executed and attested consisted of two sheets i.e Ex. B. 1 and the last sheet of Ex. A. 1 and it was presented for registration before the office of Sub-Registrar of Attili on 29-11-1944 and the Sub Registrar refused to register the document as the document was insufficiently stamped. According to him the document required to be engrossed on stamp papers worth Rs. 30/-. On the same day i.e. on 29-11-1944 two stamp papers worth Rs. 15/- and Rs. 7-50 respectively were purchased in the name of Mangamma and on 30-11-1944 the matter contained in Ex. B. 1 (the first page so presented before the Register for registration on 29-11-1944) was re-written on the two stamp papers purchased on 29-11-1944. Then Ex. B. 1 was removed or separated from the original instrument and in its place the two stamp papers which were purchased on 29-11-1944 and the matter contained in Ex. B. 1 was re-written on them were substituted and presented for registration before the Sub Registrar Atili on 6th December 1944. Exhibit A. 1 is the instrument of gift thus presented for registration before the Sub Registrar on 6-12-1944 and it consists of three sheets. The first two of which were executed on 30-11-1944 (probably the lower court meant written on 30-11-1944) while the third or the last sheet of which was executed on 18-11-1944. D.Ws. land 3 who attested the last sheet in Ex A. 1 were not present when the first two sheets thereof were written. In other words the attestors of Exhibit A. 1 did not witness the execution of the entire instrument Exhibit A. 1 consisting of three sheets by Mangamma.8. Before the Lower Appellate court the learned counsel appearing for the first defendant did not canvas the findings of the trial court that Exhibit A. 1 was executed by Mangamma in a sound and disposing state of mind and the revocation by Ex. B. 4 was invalid and inoperative. The only question urged by the first defendant in the appeal was that there was neither due execution of the gift deed Ex. A. 1 nor valid attestation of the same.9. The lower appellate court has properly addressed itself to the question whether Ex. A.-1 was executed by Mangamma in the presence of the attestors D.Ws. 1 and 3. and whether the said document was attested by D.Ws. 1 and 3. It found that since D.Ws. 1 and 3 who are said to have attested the document on 18-11-1944 consisting of two sheets did not witness any execution on 30-11-1944 of the document Ex. A.-1 consisting of three sheets. As these two sheets were not executed in their presence they cannot be taken to be attesting witnesses nor Exhibit A-1 was validly attested. The learned Judge relied upon the two rulings that are now cited by the learned counsel appearing for the respondent before me.10. In the first ruling in Sheik Kachu v. Md. Mahmud A.I.R. 1927 Cal. 926 the mortgage was duly executed and attested but the Sub-Registrar finding a technical defect had the document re-executed by the mortgagors in his office. This re-executed document was duly registered though not re-attested. In a suit upon the mortgage the mortgagor admitted execution. Though the mortgagors admitted execution in that case the Calcutta High Court held that it did not amount to a mortgage as required by Section 59 of the Transfer of property Act viz. that the signatures of the mortgagors in she re-executed document were not attested. In the second case in Sant Lal v. Kamla Prasad A.I.R. 1951 S.C. 477 it was found on appreciation of evidence that the attestations were taken some days prior to the date of its actual execution and therefore it was not a due and proper attestation. Relying upon these two decisions and the evidence of D.Ws. 1 and 3 the learned Judge came to the conclusion that D.Ws. 1 and 3 attestors of Ex. A. 1 did not witness execution thereof when they affixed their signatures on the instrument on 30-11-1944 and therefore there was no execution. On the basis of that finding the suit based upon Ex. A-1 was dismissed and the appeal was allowed.11. As to what is proper execution and attestation I may refer to the decision of the Supreme Court in Girija Datt v. Gangotri Datt A.I.R. 1955 S.C. 346. It was held by their Lordships in that decision that in order to prove due attestation of the will (which is a compulsorily attestation document) the propounder of will has to prove that the two witnesses saw the testator sign the will and they themselves signed the same in the presence of the testator. These two requirements are absolutely necessary to satisfy the provisions of Section 63 of the Succession Act. It was held further in that case that the mere fact that there are signatures of the same persons before the Sub-Registrar as identifying witnesses is not sufficient to prove due execution unless the two signatures were put on the document with the 'animo attestandi'. It was also held that the provisions of Section 68 of the Indian Evidence Act have not been satisfied and the evidence of the attesting witnesses was not trustworthy.12. Under Section 3 of the Transfer of Property Act also in order to prove due attestation two or more witnesses should have seen the executant sign or put his or her mark to the instrument and each of them must have signed the instrument in the presence of the executant. Thus the necessary legal requirement of attestation and execution have to be established before the document can be said to have been proved in evidence. The above decision of the Supreme Court was also followed in another case by me in A.S. No. 159 of 1969 and A.S. No. 321 of 1971.13. Now on the admitted facts of this case the suit document consists of three sheets. The third sheet was admittedly part of a document executed on 18-11-1944. The first two sheets have been substituted for the first sheet of the document dated 18-11-1944. The document dated 18-11-1944 was duly executed and attested. So what is contained in the suit document is only a part or portion of a validly executed and attested document. If the plaintiff wanted to have the document containing three sheets to be treated as a valid document he should have established due execution and attestation on 30-11-1944. Necessarily the first two sheets which came into existence when the stamps were purchased on 29-11 -1944 or on 30-11-1944 with the contents scribed therein of the first page of the document dated 18-11-1944 there could not have been execution and attestation in advance on 18-11-1944 itself. Therefore there is a material alteration in the suit document Ex. A-1 and it cannot be said to have been duly executed and attested.14. There is also no evidence on record to establish that Mangamma was a consenting party to the substitution of the first two sheets in Ex A. 1 on 30-11-1944. Neither the evidence of D.Ws. 1 and 3 who are the attestors nor that of the scribe D.W. 2 is helpful in this aspect. P.W. 2 the plaintiff does not say even in the chief examination that the stamps were purchased at her instance or the documents were re-written on 30-11-1944 at the request of Mangamma and that she was a consenting party to that alteration. Probably if there was such evidence the case would have shared a different fate. In view of the evidence it cannot be held that there is proper execution and attestation on 30-11-1944. D.W. 2 has categorically stated that he has written the document only on 18-11-1944 and put his signature as the scribe on that date. D.Ws. 1 and 3 also similarly state the same thing. It may also be noted that the first sheet of the document dated 18-11-1944 contains the thumb impression of Mangamma whereas the substituted two sheets of the document Exhibit A. 1 do not contain any thumb impression. On the other hand it is written as an `Mangamma Nisani'. This fact itself shows that she would not have been a consenting party to such substitution.15. Mr. Ramanujachari has placed reliance upon a decision in Gopal Chandra Chakravarti v. Surendra Kumar Ray 1912 Vol. 15 Ind. Cases 460. In that case no question about validity of execution and attestation arises. Their Lordships decided that when the mortgagor and the mortgagee agreed to have the date altered the subsequent encumbrancer like the lessee cannot dispute the same as the mortgagor who was a party to such an alteration was bound by it and was estopped from disputing it. I do not therefore think that this case has any application to the facts of the case on hand. Mr. Ramanujachari has also placed reliance upon the decision in Nathu v. Gomti Kuar A.I.R. 1940 P.C. 160. In that cases there was a material alteration with the consent of the parties thereto. As stated by me already there is no evidence on record in this case that Mangamma was a consenting party to the substitution of the first sheet of the old document by the new sheets of Ex. A.I. I do not therefore think that the principle laid down in Nathu v. Gomti Kuar A.I.R. 1940 P.C. 160 would come to the rescue of the appellant.16. Mr. Ramanujachari next submitted that according to law the document need not be signed or thumb impressions need not be affixed on every page of the document and relied upon in support of this proposition a decision of Lahore High Court in Mathra Das v. Shamboo Nath A.I.R. 1929 Lahore 203. But since the original document dated 18-11-1944 contains thumb marks on both the pages I do not think it necessary for me to consider the correctness of the principle laid down in that decision. We are concerned here with a case of a document containing thumb marks on all the pages with the only difference that one of those pages were removed and substituted by two other sheets.17. Sri Ramanujachari next relied upon the admissions made by Mangamma before the Sub Registrar. His submission that the lady presented the document on 6-12-1944 admitting to have executed the document. She was also identified before the Sub-Registrar by D.Ws. 2 and 3 who are no other than the scribe of the original document and one of the attestors of the original document. On these facts Mr. Ramanujachari wanted to contend the admission of execution is sufficient proof of execution. I am afraid I cannot countenance this argument. The admission of execution before the Sub Registrar is only for the purpose of registration. Under Section 68 of the Evidence Act proof of the document which is required by law to be attested has to be adduced in a particular manner. Such a proof cannot be dispensed with by placing mere reliance upon the registration on the deed. Moreover it is not clear whether the endorsement relates to the document executed by her on 18-11-1944 or the document dated 30-11-1944 which was never executed by her. If there is any indication in that endorsement that she has executed the document on 30-11-1944 there may be some force in his argument. As regards the signature of the identifying witnesses as stated by me already they cannot be taken to be attestors unless they have signed that document with animo attestandi. Though D.W.2 clearly says on his evidence that he signed only as identifying witness and not as attesting witnesses D.W. 3 does not improve the matters further.18. Mr. Ramanujachari relied upon a decision of Gopalrao Ekbote J. (as his lordship then was) in D. Ramireddi v. K. Ramalakshmamma 1968 (1) An.W.R. 359. That was a case wherein the original document was not executed at all and therefore the learned Judge relied upon the endorsement or registration as equivalent to execution. The case is therefore distinguishable on that fact from the present case. I do not therefore think that by mere a look at the registration endorsement alone the court can hold that the document was validly executed or attested.19. It may be noted that the Privy Council has laid down in Sureadra Bahadur v. Behari Singh A.I.R. 1939 P.C. 117 that the endorsements made at the time of registration are relevant to the matter to Registration alone. But if there is evidence they can be taken to be sufficient proof of attestation. But as already held by me there is no evidence in this case to come to such conclusion.20. Mr. Ramanujachari next contended relying upon a decision in M.N.V. Satyanarayana v. Bhavani 1970 (2) An.W.R. short notes (II) that as the mere fact that the defendants have denied the execution or put the plaintiff to proof of execution is not sufficient to make him adduce the necessary evidence. But it has to be noted that the defendants have denied truth and validity of the document and Ex. A.1 is the chief plank on which the whole structure of the plaintiff is raised. He should therefore establish Ex. A.1 as a true and valid documents in order to succeed him in this case I do not therefore think that the lower appellate court was in error in considering that aspect.21. I am therefore satisfied that the conclusion arrived at by the lower appellate court is correct and this appeal has to be dismissed. It is accordingly dismissed with costs. Leave refused.S.A. dismissed with Costs.