Obtaining of signature of a person as attestor without consent.

Srinivasan, J.

1. The defendants in O.S. No. 605 of 1982, District Munsifs court, Nagarcoil, who are mother and son, have filed this second appeal against the judgment of the learned Subordinate Judge, Nagarcoil, reversing that of the learned District Munsif and granting a decree in favour of the plaintiff declaring that she is entitled to one third share in the suit property and directing a division of the same in addition to ascertainment of her share in the income.

2. The suit property admittedly belonged to the mother of the first appellant and her sister, the respondent. After the death of the mother in 1976, the father of the first appellant and the respondent executed a gift deed on 27.6.1979 in favour of the second appellant giving the entire property to him. The said gift deed was attested by the respondent. Alleging that she was not aware of the gift deed until the defendants put forward the same, in reply to a demand for partition made by her after the death of the father, the respondent filed the suit, out of which this appeal arises, for a declaration that the gift deed was not valid and binding with reference to her one-third share and for division of other property. The respondent also alleged that her signature was obtained in the gift deed in a fraudulent manner without informing her of the nature and contents of the document.

3. The appellants resisted the suit and contended that the respondent was fully aware of the nature and contents of the document and she had attested the same only by way of giving her consent to the transfer of the property in favour of the second appellant.

4. The trial court accepted the contentions of the defendants and dismissed the suit. On appeal, the learned Subordinate Judge has come to a different conclusion and granted a decree in favour of the plaintiff. The learned Subordinate Judge has found as a fact that the appellant was not aware of the contents of the document and that she did not know that she would be losing her one-third share in the property by witnessing the document. On the basis of the said finding of fact, the learned Subordinate Judge negatived the plea of estoppel put forward by the defendants and held that the plaintiff was entitled to claim her one-third share in the suit property.

5. In the second appeal, the substantial question of law framed by the appellants reads as follows:

Whether the lower appellate court is right in getting over the settled law of estoppel by attestation on the ground that the plaintiff has not joined the gift deed as a co-executant nor admitted the details of the transaction before Sub-Registrar?

6. Learned Counsel for the appellants strenuously contended that once a person attests a document, by which his right to the property is conveyed in favour of another person, then the attestor is estopped in law from contending against the title of the person in whose favour the document is executed. In support of the said contention, Learned Counsel referred to as many as 17 decisions, a list of which is furnished below:

Vadrev Ranganayakamma Y. Vadreva Bullluramiya (1880) 5 Calcutta L.R. 439 (P.C.); Kandaswami V. Nagalinga I.L.R. (1913) 36 Madras 564 (D.B.) : 23 M.L.J. 301; Narayana v. Rama I.L.R (1915) 38 Mad. 396 : 25 M.L.J. 219; Lakhpathi v. Rambodh, Singh I.L.R. (1915) 37 Allahabad 350; Nanda Lal Dhur Biswan v. Jagat Kishore Achayya Chowdhuri A.I.R 1916 P.C. 110 31 M.L.J. 563 : 43 I.A. 249; Gurdyaidas v. Nathu (1919) 50 I.C. 274; Krishnaji v. Markandeyatukaram (1922) 42 M.L.J. 436 : 15 L.W. 486 : A.I.R. 1922 P.C. 20; Nayakammai v. Munnaswamy Mudaliar (1924) 20 L.W. 222 : A.I.R. 1924 Mad.849. Sarkar Barnard and Co. v. Alak Manjary Kuari A.I.R. 1925 P.C. 89; Bhagwan v. Ujagar (1928) 27 L.W. 672 : A.I.R. 1928 P.C. 20: 54 M.L.J. 254. Janakirarn Sital Ram Firm v. The Chota Nagapur Bancer Assn. Ltd. I.L.R. (1936) 15 Patna 721; Krishna Govindan v. Chimma Chellamma ; Ramaswamy Gounder v. Anantha Padmanabhan (1971) 84 L.W. 176; Jaganatha Pil