Treating executants of a document as a attesting witness

This is an appeal by the plaintiff against the decree of the learned Subordinate Judge dismissing his suit, reversing the decree granted in her favour by the learned District Munsif. The suit was for a declaration that the deed Exhibit A-5, dated 10th February, 1945 (of which Exhibit B-5 is the original) executed by the Power of Attorney Agent of Sankararama Iyer, the third defendant, in favour of his brother the first defendant does not affect the plaintiff’s right to the suit properties under the sale deed in her favour and for recovery of possession of the same with profits. The plaint schedule properties, it is not disputed, originally belonged to the third defendant. Under a sale deed, dated 17th February, 1945, Exhibit A-1, the property was conveyed by the third defendant to the plaintiff for a sum of Rs.1,350-0-0 of which the consideration was fully paid. In the document, the third defendant assured the plaintiff that the property was free from encumbrances and that he held the property absolutely. As the plaintiff was obstructed, when she went to take possession of the property by the first defendant claiming rights under the othi deed of an earlier date, viz., 10th February, 1945, she instituted the present suit for the reliefs stated above. Her case was that this document, the othi deed, was an ante-dated document brought into existence by the collusion of defendants 1 and 3 and the Power of Attorney Agent of the third defendant one Sivasubrahmanya Ayyar. The stamps were purchased at Tinnevelly and though the document had to be registered at a nearer place, in fact it was presented for registration before the District Registrar of Tinnevelly. It was claimed that the recitals regarding the consideration in the othi deed were all false. There was an earlier criminal case against defendants 1 and 3 also the Power of Attorney Agent Sivasubrahmanya Ayyar but that case was dismissed. The document was also attacked on the ground that it was not validly attested.

The third defendant died during the pendency of the suit and the first defendant was the sole contesting defendant. He claimed that the document in his favour, the othi deed, was a valid document and was not ante-dated. In the trial Court’ several issues were raised of which issues 1 and 3 are the most important issues. Issue 1 covers the question that the deed was ante-dated and issue 3 concerns the question whether the othi deed was properly attested. On the first point, the trial Court found in favour of the plaintiff but the third issue was disposed of summarily and it was held that the deed was validly attested. In the result, the suit was decreed in favour of the plaintiff. On appeal, this decision was reversed by the learned Subordinate Judge, who held that the othi deed was not ante-dated and that it was valid. He did not however deal with the question of the validity of the attestation of the document fully. He made a passing reference to it treating that question as one arising under section 68 of the Indian Evidence Act.

In this appeal by the plaintiff, the finding of fact could not be seriously challenged as there are no grounds for interfering with that finding though a reversing one in Second Appeal. But the learned Advocate for the appellant pressed the issue relating to the validity of the attestation of the document and that is the only question, which arises for consideration in this Second Appeal. The document the othi deed Exhibit B-5, was executed in favour of the first defendant by Sivasubrahmanya Ayyar as the Power of Attorney Agent of Sankararama Iyer. It is so stated in the preamble to the document and in the body specific reference is made to the fact that he was executing the document in his capacity as the general Power of Attorney-Agent of Sankararama Iyer, the third defendant. It was signed also by the Power of Attorney Agent as Sivasubrahmanya Ayyar, power agent of Sankararama Iyer. The document purports to bear the attestation