Proper attestation under Section 123 of the Transfer of Property Act requires an attesting witness to sign with the intent to attest; lacking such intent invalidates the deed.

J U D G M E N T

The defendants in OS No.238/1997 on the files of the Munsiff’s Court, Harippad, a suit for setting aside two gift deeds, have come up in the present appeal, aggrieved by the reversal of the judgment and decree in the suit granted in their favour, by the Additional District Court-I, Mavelikara.

2. The brief facts necessary for the disposal of the appeal are as follows:

The plaint scheduled properties comprised of 60 cents in survey No.V 1856 (item No.1) and 59 cents in survey No.V 1857 (item No.2) and 8 cents in survey No.V 1847/B (item No.3) were subject matter of two gift deeds Nos.1239/1989 and 1267/1989, executed in favour of defendants 2 and 3 by the first defendant. The plaint schedule properties are owned by the plaintiff as per the partition deed No.7080/1119 ME. The plaintiff contended that she did not execute any documents in favour of the 1^st defendant and therefore filed the suit to set aside the aforesaid gift deeds. The defendants contended that the plaintiff executed the gift deeds in favour of the 2^nd and 3^rd defendants with free consent and full knowledge, and the defendants affected the mutation and are enjoying the property. Initially, after the trial of the suit, the same was dismissed on 9.10.1998. Later, AS No.45/1999 was filed by the plaintiff before the Additional District Court-II, Maveliksara, which negated the plea made by the plaintiff that the deeds were executed with undue influence or coercion, and the execution was upheld. However, while upholding the execution of the deeds, a question as regards the validity of the gift deeds in terms of Section 123 of the Transfer of Property Act, 1882 was raised, and on that count, the same was remanded back to the trial court for fresh consideration. The whole purpose of the remand was to verify as to whether the gift deeds were attested by one witness only. Subsequent to the remand, the defendants examined one Ramachandra Pillai on 30.1.2009 to prove the execution of the gift deeds. The attesting witness deposed that though he had signed the settlement deed (gift deeds) signed by the plaintiff, he denied the suggestion that he had affixed the signature as an attesting witness. According to him, he had affixed the signature as a scribe, and he had no intention to attest the gift deeds as an attesting witness. The evidence was appreciated by the trial court in such a manner as to sustain the gift deeds. Accordingly, the suit was dismissed. Aggrieved, the plaintiff preferred AS No.141/2009 before the Additional District Court-I, Mavelikara. The first appellate court, however, held in favour of the plaintiff on the ground that since the attesting witness did not have the animus while affixing his signature, the gift deeds had only the one attesting witness, and therefore, they are void.

Hence, the present second appeal.

3. On 13.1.2012, this Court framed the following substantial question of law:

“Whether courts below have gone wrong in holding that there is no proper attestation of Exts.B1 and B2 documents even in the light of Exts.B1 and B2 and evidence of DW1, Scribe who figures as an attester in the documents?”

4. Heard Smt.Meena A., the learned counsel appearing for the appellants and Smt.Sumathi Dandapani, the learned Senior Counsel, assisted by Smt.Binta Theressa Jimmy, the learned counsel appearing for the respondents.

5. Smt Meena A, learned counsel appearing for the appellants contended that the appreciation of the evidence of DW1 by the trial court is correct. No form of attestation is prescribed under Section 3 of the Transfer of Property Act, 1882 . The evidence of DW1, read as a whole, wou