The attestation of a deed of gift by the scribe of the document is valid if the scribe intends to sign the document as an attesting witness and witnesses the execution of the deed in the presence of the executant.

P. K. MOHANTI, J.

( 1 ) THE second appeal is by the defendant against a decree of reversal.

( 2 ) THE plaintiff and the defendants are agnates. The defendant executed and registered a deed of gift on 3-6-1968 in favour of the plaintiff in respect of the suit lands; but subsequently he cancelled the same by a deed of cancellation dated 10-3-1970 on the ground that it was fraudulently obtained from him. The plaintiff's case was that the defendant being issueless and a widower was being looked after by him and being satisfied with him, the defendant voluntarily executed a deed of gift which was duly accepted by him and he remained in possession of the properties since the deed of gift. It was alleged that the defendant at the instance of some of the enemies of the plaintiff wanted to dispossess the plaintiff and hence he filed the suit for declaration of title and confirmation of possession, or in the alternative for recovery of possession of the suit properties.

( 3 ) THE defendant's contention was that in 1968 when he fell ill the plaintiff took him to the Bhubaneswar Hospital for treatment and from there the took him to the Sub-Registrar's Office at. Bhubaneswar for the purpose of execution of a sale-deed in respect of the lands which had been previously mortgaged with him. The defendant under the impression of executing a sale-deed signed the deed of gift without knowing its contents. About two years thereafter, when the plaintiff threatened to oust the defendant from the suit lands, he came to know about the deed of gift and executed the deed of cancellation, on 10-3-1970.

( 4 ) THE trial court dismissed the plaintiff's suit on the finding that the plaintiff had obtained the deed of gift on 3-6-1968 by practising fraud. On appeal, the learned District Judge differed from the finding of the trial court and came to hold that the deed of gift is valid and binding on the defendant. Accordingly, he decreed the plaintiff's suit.

( 5 ) IT is urged in this appeal that the deed of gift has not been proved to have been duly attested as required by Section 68 of the Evidence Act and that attestation by the scribe of the document is not valid.

( 6 ) ACCORDING to Section 123 of the Transfer of Property Act, a gift of immovable property must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. The term "attested" has been defined in Section 3 of the Transfer of Property Act. The essential conditions of a valid attestation are that two or more witnesses must have seen the executant sign the instrument, or have received from him a personal acknowledgment of his signature, and each of them has signed the instrument in the presence of the executant. The deed of gift which has been marked as Exhibit-1 bears the signature of the executant (defendant) and there are the names of two persons who have described themselves as witnesses.

( 7 ) SECTION 68 of the Evidence Art provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting 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. This Section contains a proviso that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied. Execution of the deed of gift having been specifically denied, the proviso does not apply to the present case.

( 8 ) THE scribe of a document may perform a dual role. He may be an attesting witness as well as the scribe, but he will not be so unless he intends to sign the document as an attesting witness. A person can be called an attesting witness when he has witnessed the exe