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Andhra Pradesh High Court
Madamanchi Venkatasubbaiah - Appellant
Versus
Madamanchi Subbamma - Respondent
Decided On : 09-15-55
EVIDENCE ACT, 1872 - SECTION 68 - TRANSFER OF PROPERTY ACT, 1882 - SECTION 126 - REGISTRATION ACT, 1908 - SECTION 17(1)(B) - PARTITION - PROOF - GIFT DEED - REVOCATION - MAINTENANCE - ADMISSIBILITY OF UNREGISTERED DOCUMENT - DIVISION IN STATUS.
Fact of the Case:
Plaintiff filed a suit to set aside a summary order passed in E.A. No. 2158/45 in O.S. No. 389/45 and to recover possession of the suit land from the defendants. The plaintiff claimed to be a donee from one Ramayya and filed O.S. No. 389/45 for ejectment and arrears of rent against a lessee whose lease expired on 4th July, 1945. After obtaining the decree, the plaintiff went to take possession of the property in execution thereof. The third defendant, putting forward a lease from the second defendant, caused him obstruction. The second defendant is the widow of one Nagayya, the brother of Ramayya who was the donor of the plaintiff, the first defendant being the widow of his donor. The gift is evidenced by Exhibit A-4, dated 24th May, 1943. Two years later, Ramayya sought to revoke the document on the ground that he was not being maintained as arranged between the parties under the document. A few days thereafter the settlor died. A suit was filed by the widow of Ramayya for a declaration that the gift in favor of the present plaintiff was inoperative as it stood revoked and also for the reason that it was obtained by undue influence this suit was dismissed as the donor could not validly cancel the document. The present suit is filed on the assumption that the whole family property belonged to Ramayya as Nagayya predeceased him.
Finding of the Court:
The court held that the gift deed was duly proved as the scribe of the document gave evidence that it was executed by the donor and voluntarily and that it was duly attested. The court also held that section 126 of the Transfer of Property Act has no application to a case of this description as there was no agreement between the parties that the gift should be either suspended or revoked, and the failure of the donee to maintain the donor as undertaken by him in the document is not a contingency which could defeat the gift under Exhibit A-4. The court further held that the unregistered document, Exhibit B-12, is admissible for proving not only division in status but for the purpose of showing that there was a division by metes and bounds and the suit property was allotted to the second defendant's husband.
Issues: 1. Whether the gift deed was duly proved? 2. Whether section 126 of the Transfer of Property Act applies to the case? 3. Whether the unregistered document, Exhibit B-12, is admissible for proving division in status and division by metes and bounds?
Ratio Decidendi: 1. Section 68 of the Evidence Act does not require that one of the attesting witnesses must be examined to prove the execution of a document. The proof contemplated in this section can be furnished by the scribe of the document who could speak to the execution of it. 2. Section 126 of the Transfer of Property Act does not apply to a case where there is no agreement between the parties that the gift should be either suspended or revoked, and the failure of the donee to maintain the donor as undertaken by him in the document is not a contingency which could defeat the gift. 3. An unregistered document which does not purport or operate to create, declare, assign, limit or extinguish any right, title or interest in immovable property is admissible for proving division in status and division by metes and bounds.
Final Decision: The second appeal is dismissed without costs. The petition for leave to withdraw the appeal with liberty to file a fresh suit is also dismissed.
( 2 ) THE second defendant is the widow of one Nagayya the brother of Ramayya who was the donor of the plaintiff, the first defendant being the widow of his donor. The gift is evidenced by Exhibit A-4, dated 24th May, 1943. Two years later, ramayya the settlor sought to revoke the document on the ground that he was not being maintained as arranged between the parties under the document. A few days thereafter the settlor died. A suit was filed by the widow of Ramayya for a declaration that the gift in favour of the present plaintiff was inoperative as. it stood revoked and also for the reason that it was obtained by undue influence this suit was dismissed as the donor could not validly cancel the document. The present suit is filed on the assumption that the whole family property belonged to ramayya as Nagayya predeceased him.
( 3 ) VARIOUS defences were raised to the action among which were that there was a division between Ramayya and Nagayya prior to the latter s death at which the suit property was allotted to Nagayya s share, that ever since that date it had been in possession and enjoyment of Nagayya and subsequently his widow the second defendant through her lessees and that the gift deed was ineffective as it was revoked by the donor before his death.
( 4 ) THE trial Court agreeing with the contentions of the plaintiff granted a decree. In its opinion the gift was still in force and the plea of partition was not substantiated. On appeal the Subordinate Judge set aside the decision of the trial Court disagreeing with it on every finding including the existence of a valid gift-deed in favour of the plaintiff.
( 5 ) IN this appeal, the correctness of the judgment under appeal is canvassed. It is first urged by Mr. Kotayya that the view of the appellate Judge that the document cannot be said to have been proved as any one of the attesting witnesses was not examined as required by section 68 of the Evidence Act is erroneous. It is his case that there was sufficient compliance with the provisions of section 68 of the evidence Act as the scribe of the document gave evidence that it was executed by the donor and voluntarily and that it was duly attested. I am inclined to agree with this submission: Section 68 of the Evidence Act recites :"if a document is required by law to be attested, it shall not be used as evidence until one attes- ting 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. "
( 6 ) UNDENIABLY one attesting witness was alive at the relevant time. The question for consideration is whether the non examination of one of the persons who subscribed his signature as an attesting witness results in the document being excluded from evidence. In my opinion, the proof contemplated in this section can be furnished by the scribe of the document who could speak to the execution of it and it is not essential that it should be proved only by at
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