IMPORTANT POINT
(1) Execution of gift-deed – A deed of gift having only one witness would be void ab initio and a nullity in its very inception, but a deed of gift having two witnesses would not by itself stand ab initio void or a nullity in its very inception.
(2) Presumption as to documents thirty years old – Such presumption cannot be extended when document itself is signed by an agent and not by testator, wherein presumption under Section 90 cannot be extended so as to prove agency and cannot be substituted in place of proof that he was duly authorised agent to execute the document.

JUDGMENT

P. Somarajan, J.—A suit for partition was dismissed by the trial court on the ground that Ext.A3 gift deed and Ext.A4 sale deed are invalid. Ext.A4 sale deed is of the year 1981 (9.7.1981) and the prior document, Ext.A3 gift deed is of the year 1969 (29.12.1969). The plaintiffs claims that their predecessor-in-interest Annamma Paulose obtained the property by virtue of Ext.A4 sale deed based on an earlier document of gift, Ext.A3. The contention of the defendants is that Ext.A3 gift deed is ab initio void and never came into effect and as such, the sale deed executed based on Ext.A3 gift deed has no legal validity.

2. Indisputably, no suit for setting aside Ext.A3 gift deed and subsequent sale deed was filed at any point of time within the period of limitation or till date. Even in the present suit, no counter claim was raised for any relief of declaration, except a contention that Ext.A3 gift deed is invalid and not came into effect due to non-compliance of requirement of attestation by two witnesses as mandated under Section 123 of the Transfer of Property Act.

3. The trial court accepted the contention raised by the defendants and found that both Exts.A3 gift deed and Ext.A4 sale deed are invalid and dismissed the suit for partition without a counter claim for the said relief, that too, overlooking the period of limitation. The first appellate court went along with the trial court and committed the very same mistake and found that there is no valid gift deed as claimed under Ext.A3 and as such, the subsequent sale under Ext.A4 is also invalid, but remanded the case back to the trial court to address the genuineness of Ext.B8 Will of the year 1983, against which the plaintiffs came up in appeal. The essential questions came up for consideration are:

(1) Whether a registered deed of gift and subsequent deed of sale can be avoided under Section 123 of the Transfer of Property Act without the intervention of a competent court?

(2) What would be the legal position when the document of gift appears to be signed by two attesting witnesses?

(3) What would be the legal effect of a registered sale deed of the property covered by an earlier gift deed, if it was allowed to continue for a long period more than the period of limitation without any challenge and what would be legal effect of the delivery of possession of property effected in furtherance of the deed of sale, even if the prior title deed, the gift was found to be invalid?

(4) Whether the trial court and the first appellate court are justified in concluding that both the documents are invalid overlooking the period of limitation, that too, without a properly instituted suit?

4. It is a suit for partition of the year 2011, wherein no counter claim was raised challenging the validity of either Ext.A3 gift deed of the year 1969 or the subsequent sale of the year 1981 (Ext.A4). But both the documents were allowed to continue without a suit instituted for either setting aside those documents or its cancellation or for a declaration, for a period of more than 40 years (as on the date of present suit). No challenge was raised against the gift deed or its validity at any point of time on the abovesaid alleged ground of noncompliance of mandate under Section 123 of the Transfer of Property Act. It is so unfortunate that in the present suit also, no such relief was raised by way of counter claim or no separate suit was filed in that behalf. But both the courts below entered into a finding in a simple suit for partition that the abovesaid two documents are invalid.

5. In order to execute a valid gift deed, there should be two attesting witnesses. In Ext.A3, there are two attesting witnesses. Even a persual of the said document would clearly show that there are two attesting witnesses to the document. The contention raised by the defendants is that one among them is a scribe and not an attesting witness. It is not the number of attesting witnesses, which is under challenge, but