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High Court Of Orissa
S. C. MOHAPATRA
BRUNDABAN NAYAK - Appellant
Versus
GOBARDHAN BISWAL - Respondent
Second Appeal 50 Of 1981
Decided On : 11/03/1989
EVIDENCE ACT, 1872 - SECTION 71 - GIFT DEED - EXECUTION - PROOF - ONE ATTESTING WITNESS DENYING EXECUTION - OTHER ATTESTING WITNESS NOT EXAMINED - WHETHER EXECUTION CAN BE PROVED BY OTHER EVIDENCE.
Fact of the Case:
Plaintiff claimed title to immovable property based on a registered deed of gift (Ext. 1) dated 26-2-1964. Defendants challenged the validity of the deed, asserting that it was obtained by the plaintiff from defendant No. 1 fraudulently misrepresenting that the latter is required to execute a power of attorney. Defendant No. 1 revoked the deed of gift by a registered deed of cancellation (Ext. A) dated 6-11-1971.
Finding of the Court:
The court held that the plaintiff acquired title on the basis of Ext. 1. The court found that one of the attesting witnesses (PW 4) denied execution of the deed of gift, and the other attesting witness was not examined. The court held that the execution of the deed of gift could be proved by other evidence under Section 71 of the Evidence Act, since the plaintiff had exhausted all efforts to examine the other attesting witness.
Issues: Whether the deed of gift (Ext. 1) has been proved properly under Section 71 of the Evidence Act since PW 4, one of the attesting witnesses has denied its execution and the other attesting witnesses not being examined, execution of Ext. 1 has been proved by PW 1, the scribe of the document.
Ratio Decidendi: The court held that the duty imposed on the party under Section 68 of the Evidence Act is discharged by examining one of the attesting witnesses, and in case he denies or does not recollect execution of the document, such party can prove execution by other evidence as envisaged under Section 71. The court distinguished the Bombay High Court decision in AIR 1949 Bom 266, which held that one attesting witness having denied execution of the document, the other attesting witness was required to be examined, on the ground that in that case, the witness examined did not deny execution, but failed to prove attestation by the other attesting witness. The court also preferred the Patna High Court decision in AIR 1938 Patna 301, which held that it is not necessary to examine all the attesting witnesses to prove a document, and that if one attesting witness denies or does not recollect the execution of the document, the execution may be proved by other evidence under Section 71.
Final Decision: The court dismissed the appeal with costs.
Key Points:- The case discusses proving a registered gift deed (Ext.1) where one attesting witness (PW 4) denied execution and the other attesting witness was not examined. (!) - It holds that execution can be proved by other evidence under Section 71 once a witness denies execution, after exhausting efforts to examine other attesting witnesses. (!) - It explains that Section 68 requires calling at least one attesting witness to prove execution, with mandatory exceptions under provisos 68-71 for circumstances where witnesses are unavailable or the donor admits execution. (!) (!) - It distinguishes between cases where no witness is available versus where a witness has been called but denies or does not recollect execution, allowing proof by other evidence under Section 71. (!) (!) - The decision clarifies that examination of all attesting witnesses is not strictly necessary to prove a document; one witness’s denial can trigger proof by other evidence under Section 71. (!) - The appellate court remitted or considered opportunities to examine the remaining attesting witness where necessary to avoid prejudice to the plaintiff. (!)
S. C. MOHAPATRA, J.
( 1 ) TRANSFER of title by a registered deed of gift (Ext. 1) dated 26-2-1964 is the dispute in the suit out of which this Second Appeal arises.
( 2 ) WHILE plaintiff claims title on the basis of Ext. 1, defendants assailed the same asserting that it was obtained by the plaintiff from defendant No. 1 fraudulently misrepresenting that the latter is required to execute a power of attorney. When defendant No. 1 suspected the contents of the documents which he was possessing, he got it read over since he does not know reading and writing except signing, to find the same to be a deed of gift in favour of the plaintiff. Accordingly, he revoked the same by a registered deed of cancellation (Ext. A) dated 6-11-1971.
( 3 ) BOTH the courts held that plaintiff acquired title on the basis of Ext. 1. Only point is whether Ext. 1 can be received in evidence as a valid instrument for transfer of title by defendant No. 1 in favour of the plaintiff.
( 4 ) UNDER Section 123 of the Transfer of Property Act, immovable property is to be transferred by a registered deed of gift attested by at least two witnesses. Since term of disposition i. e. gift is to be reduced to writing, the document is to be proved as provided in Section 91 of the Evidence Act. Mode of proof of a document required by law to be attested is to prove as provided in Section 68 which prohibits use of the documents as evidence unless at least one of the attesting witnesses is called to prove the execution which also includes attestation. Since a gift deed is to be attested by at least two witnesses, its execution can be said to be proved only when it is proved that the donor has signed the deed of gift or acknowledged his signature to the two witnesses who have attested the same and those witnesses have signed in presence of the donor. Normally, both the doner and the two attesting witnesses are required to be examined for proving the gift. However, Section 68 gives a concession to the party to call one of the attesting witnesses to prove execution of the document. This is mandatory. Legislature, however, made exceptions so that in the circumstances provided in proviso to Section 68 and Sections 69 to 71 the mandatory provision is not to be insisted by the Court to be complied with.
( 5 ) PROVISO to Section 68 exempts a party from proving the execution of the gift deed by calling at least one of the attesting witnesses alive and subject to process of the Court if the gift deed is registered and the donor does not deny the execution specifically. Section 69 provides that the attesting witnesses not being found or being in United Kingdom, requirement of Section 68 execution of a gift deed can be proved by other evidence. Section 70 provides that one of the attesting witnesses need not be examined to prove execution of a gift deed if the donor admits the execution himself and the same shall be proof of its execution. Legislature took note of a circumstance where an attesting witness denies or does not recollect the execution of the gift deed. In Section 71, it has been provided that in such circumstances, execution of the gift deed may be proved by other evidence.
( 6 ) IN the present Second Appeal the question to be examined is whether the deed of gift (Ext. 1) has been proved properly under Section 71 of the Act since PW 4, one of the attesting witnesses has denied its execution and the other attesting witnesses not being examined, execution of Ext. 1 has been proved by PW 1, the scribe of the document.
( 7 ) PLAINTIFF took steps to examine both the attesting witnesses to satisfy the mandatory provision in Section 68 of the Evidence Act. PW 4 was examined after his attendance was secured issuing proclamation as required under Order 16, Rule 10, C. P. C. When he denied execution in his examination on 20-11-1975, plaintiff sought for an adjournment and prayed for issue of warrant of arrest against the other attesting witnesses. Trial court adjourned directi
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