A valid gift deed is required for the transfer of immovable property, and entries in the record-of-rights do not dispense with the proof of such a deed.

1. This is Defendant's appeal in a suit for pre-emption. The Defendant was co-occupant of one-third share of survey No. 161 of mauza Sirpur, taluq Basim. On 4-7-1939 he executed a sale deed in favour of Laxman Shekuji for a consideration of Rs. 200-0-0 with a condition of reconveyance if the amount was re-paid within 5 years of the transaction. This condition is embodied in the same document. As Laxman declined to carry out this agreement, the Defendant instituted civil suit No. 495A of 1944 to enforce the agreement. The suit was contested; but, at the stage of evidence, it was compromised on 2-1-1945 and in pursuance of the compromise the sale deed exhibit P-1, dated 20-1-1945 was executed by Laxman in favour of the Defendant for Rs. 200-0-0.

2. Exhibit P-3, dated 30-12-1944 is a gift deed said to have been executed by Laxman in favour of his daughter-in-law (Plaintiff) of another undivided one-third share of this survey number, and on the strength of this gift deed she claims to have a right of pre-emption. The Defendant denied the execution and valid attestation of this deed and pleaded that the alleged document was bogus and fraudulent, brought into existence with a view to harass the Defendant. As the Plaintiff did not refer to this gift deed in the plaint, there is no express denial of execution and attestation in the written statement. The document was produced on the date of settlement of issues, apparently after the issues were framed, and in reply to the notice under Order 12, Rule 2, Code of Civil Procedure. The Defendant denied the execution and valid attestation of the document. The issue that was framed by the lower Court on the averment in the plaint which was denied by the Defendant is "Whether the Plaintiff is a co-occupant in survey No. 161 of Sirpur." On the plea raised by the Defendant issue No. 1(b) was framed which is "Whether the gift d.eed executed in her favour by Laxman is bogus and void for reasons stated by the Plaintiff." It should have been "as alleged by the Defendant."

3. The title of the Plaintiff was thus in issue in the trial Court. The Plaintiff has not examined any attesting witness or any witness to prove the deed of gift. The learned Counsel for the Plaintiff argues that it was not necessary to prove the execution or attestation of the document as the execution was not specifically denied. According to him, the denial should have been in the written statement; on the contrary, the plea that the transaction was bogus implies an admission of the execution of the document. These contentions cannot prevail. As already observed, there is no allegation in the plaint which the Defendant had to traverse in the written statement. The Defendant specifically denied the execution and attestation of the document at the earliest possible opportunity. The plea about the nature of the transaction does not imply an admission of the execution of the deed. The Plaintiff thus knew that she had to prove her title to the property to be entitled to the right of preemption.

4. The learned Counsel next Submitted that the endorsement of the Sub-Registrar at The time of registration is a sufficient proof of the execution and due attestation. Reliance was placed on - Ganpatrao v. Nagorao, 1940 AIR(Nag) 382. The learned Judge observed in that case: Though there is some difference of opinion on the point, the balance of authority is in favour of the view that a sub-registrar who has signed a document in the presence of the executant after receiving from him an acknowledgment of execution is an attesting witness.... In - Jagannath v. Mt. Dhiraja,1918 AIR(Oudh) 120, Lindsay J.C. held that the Court is not bound to treat the registration endorsement as conclusive proof of tie fact of execution. With that I agree, but it is certainly open to the Court in my opinion, to treat it as sufficient proof: See - Mt. Shams-un-nissa v. Sh. Ali Asghar,1936 AIR(Oudh) 87, and - Shri Ram v. Mohammad Abdul Rahim,1938 AIR(Oudh) 69.

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