The attestation requirement under Section 123 of the Transfer of Property Act, 1882, is satisfied if the witnesses sign the document as witnesses, even if they do not explicitly state that they are attesting the deed.

S. Ali Ahmad and J JJ.

1. Defendant Nos.4 and 5 have filed this second appeal against the judgment and Decree passed in Title Appeal No.70/6 of 1980/81 which arose out of a suit filed by the plaintiffs-respondent contesting the suit for a declaration that the deed of gift dated 26-11-1965 executed by Bhagelu Sao in favour of defendant Nos.1 and 2 was illegal, void and inoperative. It is said by the plaintiffs that defendant No.1 was the concubine of Bhagelu Sao and defendant No.2 was the illegitimate son of the two. Further according to the plaintiffs bhagelu Sao was brought under influence of these two defendants and got the deed fraudulently executed. It is said that later on he cancelled the deed of gift by executing another deed dated 29-11-1965. The matters did not end there. The plaintiffs say that another deed was executed on 4-12-1965 cancelling the deed dated 29-11-1965. Then again on 20-12-1965 a third deed of cancellation was executed cancelling the deed dated 4-12-1965. The plaintiffs also alleged that the deed of gift which covers half of the residential house and 19 decimals of land were the ancestral property of the plaintiffs and Bhagelu Sao and as such the deed of gift was not valid. The defendant Nos.1 and 2 contested the suit. Their case was that defendant No.1 was legally married wife of Bhagelu Sao and there was no fraud or undue influence over Bhagelu Sao in executing the deed of gift. It was also said that the deed of gift was valid, legal and was acted upon. The fact that the suit property was the ancestral property, was also denied. During the pendency of this suit portions of the suit land were conveyed by defendant Nos.1 and 2 to defendant No.4 and 5 and they were added as defendants to the suit. These defendants adopted the written statement filed by defendant Nos.1 and 2. Besides, admittedly, issues of maintainability etc. the substantial issues framed by the trial court were with regard to limitation and validity of the deed of gift dated 26-11-1965.

2. The trial court after taking evidence of the parties came to the conclusion that the deed of gift was valid. It also held that the suit was not filed within the period of limitation. It therefore, dismissed the suit. The plaintiffs filed an appeal before the lower appellate court which was allowed and the suit was decreed holding that the deed of gift dated 26-11-1965 was invalid inasmuch as it was not attested by two witnesses as required under Sec.123 of the transfer of Property Act. It also held that article 94 of the Limitation Act applied to the present suit which prescribed a period of 12 years from the date of execution of the document and the suit was filed within 12 years, therefore, the same was in time. The defendant Nos.4 and 5 have thereafter filed this second appeal. Learned Counsel for the appellant contended that the court below has committed an error of record in holding that only one person namely Gulab chand has attested the deed of gift dated 26-11-1965. He says that Mohan Lal. , d. W.12 was also an attesting witness. The original deed of gift is ext. D and the certified copy of the same is ext.5. In order to appreciate the argument of learned counsel for the appellant I myself have perused exhibit D. I find that both Gulab Chand and Mohan Lai have signed the document as witnesses. Mr. Mazhar Uussain appearing on behalf of contesting plaintiff respondents said that in fact there is no attestation by even one person as they have not said that they have attested the deed. They have only signed the document describing themselves as Gawah. Learned counsel, therefore, says that the document is invalid for want of attestation. According to Law Lexicon by Venkataramaiya "to attest is to bear witness to a fact. " Therefore, if Mohan Lal and Gulab Chand described themselves as witnesses then it cannot be said that they were not the attesting witnesses. Further it cannot be disputed that in a very substantial number of documents t