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Judgment
R. Jayasimha Babu, J.—This appeal arises from a suit brought by the first respondent for declaration of his title to a house, more fully
described in the plaint schedule. The Trial Court decreed the suit and that decree was affirmed in appeal. The present appeal is by defendants 2
and 3, who have purchased the property from defendant No. 1.
There is no dispute about the fact that the suit schedule property all along stood in the name of the mother of the plaintiff, who is defendant No.
The site had been purchased in her name, the building plan had been sanctioned in her name and all taxes were shown in the records as having
been paid by her. Her husband, the father of the plaintiff, was an employee of the Government. He also had ancestral properties.
The plaintiff, his two brothers and their father entered into a partition under a registered deed dated 19.2.1969, in which it was stated that
though the house stood in the name of the mother, it in fact belonged to the father and that that property was being allotted to the share of the
father. The mother had attested the document, but was not a party to the same. There is nothing in the document to show that she had knowledge
of its contents. Almost twelve years later, in the year 1981, an unregistered document was drawn up, described as a family arrangement, to which
the plaintiff, his two brothers and their father were parties, wherein it was stated that the plaintiff had sent a notice making certain claims and in
order to resolve the dispute raised by him the family arrangement was being entered into under which the plaint schedule property was being
allotted to the share of the plaintiff. That document was not registered. After that document was drawn up, the plaintiff attempted to have the title of
the property transferred to his name. But that request was rejected by the letter dated 8.8.1981, marked as Ex.B-11. Thereafter, the plaintiff does
not appear to have made any effort to assert title to the property. Though the plaintiff, in the course of his deposition, claimed that the tenant had
been paying rents to him, no documents were produced to substantiate that assertion.
The property, even after the partition in which it was recorded that the property belonged to the father and had been allotted to his share,
continued to remain in the name of the mother who, when she was examined in this suit as D.W.1, has stated that she had no knowledge of the
contents of the partition deed; that the property continued to belong to her and that she came to know about the purported allotment of that
property to her husband''s share only after the present suit was instituted by the plaintiff. The plaintiff did not place any material before the Court to
show that his mother had knowledge of the contents of the partition deed and had accepted the same at any point of time prior to the institution of
the suit. There is no material on record to show that the mother had at any time accepted the property as belonging to her husband. On the other
hand, the records produced in the trial Court showed that she had filed a petition against the tenant of the property in the year 1982, two years
prior to the institution of the present suit, which would clearly indicate that she was asserting her title to the property and had not recognised either
her husband or her son as the owner of the same.
On 22.12.1982, the first defendant/mother executed a sale deed in favour of the present appellants, who were defendants 2 and 3. Those
defendants subsequently obtained possession of the property also and were in possession on the date of the suit and thereafter as well.
The trial Court as also the learned single Judge proceeded on the footing that the attestation of the partition deed by the mother resulted in an
estoppel, operating against her from denying the title of her husband and, therefore, the father to whom that property was allotted at the partition
had acquired valid title to the same under the partition and on the strength of that could enter into the family arrangement in the year 1981 under
which the property was re-allotted to the share of the plaintiff. The Courts have proceeded on the assumption that the family arrangement was a
valid one. The father and the two brothers were not parties to the suit and none of them had been examined in support of the plaintiff''s case.
Attestation of a document does not, in our view, entitle any of the parties thereto or any one claiming under them to regard such attestation, per
se, as acceptance on the part of the attestor that the contents of the document are true and that such attestor had knowledge of the same unless
there is evidence before the Court either intrinsic in the document itself or extrinsic to show that the attestor had knowledge of the contents and had
accepted the same as correct.
Nearly eighty years ago, the Privy Council in the case of Pandurang Krishnaji v. Markandeya Tukaram (1922) 62 MLJ 436 had held inter alia
thus:-
..they think it is desirable to emphasize once more that attestation of a deed by itself estops a man from denying nothing whatever excepting that
he has witnessed the execution of the deed. It conveys, neither directly nor by implication, any knowledge of the contents of the document, and it
ought not to be put forward alone for the purpose of establishing that a man consented to the transaction which the document effects. It is, of
course, possible, as was pointed out by their Lordships in the case of Banga Chandra Dhur Kiswas v. Jagat Kishore Chowdhuri (1916) L.R. 43
that an attestation may take place in circumstances which would show that the witness did in fact know of the contents of the document, but no
such knowledge ought to be inferred from the mere fact of the attestation.
Attestation, therefore, does not imply that the attestor had knowledge of the contents of the document or that the attestor accepts the correctness
of whatever is stated therein.
The learned single Judge placed reliance on the decision of a single Judge of this Court, Ismail, J., as he then was, in the case of Ramaswamy
Gounder, Chinnasami Gounder alias Chinna Gounder Vs. Anantapadmanabha Iyer, : wherein the learned judge referred to decisions rendered by
learned single Judges in two old cases viz., Sathasiva Iyer, J. in Kandasamy v. Nagalinga ILR (1912) 36 Mad. 564 and Narayana v. Rama ILR
(1915) 38 Mad. 396 and that of Kumaraswami Sastri, J., in the case of Nayakammal v. Munnaswamy Mudaliar (1924) 20 L.W. 222. Sathasiva
Iyer, J. in the case of Kandasamy referred to the ""ordinary course of conduct of Indians in this presidency"" and held that attestation must be treated
prima facie as a representation by the attestor that the title and other facts relating to title recited in the document are true and that they will not be
disputed. The learned judge also observed that in his long experience as judicial officer, if the attestor has an existing interest in the property dealt
with in the document attestation was always made in order to bind him as to the correctness of the recitals. Kumaraswami Sastri, J., in the case of
Nayakammal, observed that ""it is the commonest thing in this country for attestations to be obtained from persons having a possible interest in the
property with the object of binding them later on"" and that ""I have rarely come across a case where a person having an interest present or
contingent has attested the deed without enquiring into its contents"".
Those observations made by the learned judges cannot be treated as having laid down a proposition of law that all attestors of all documents
must be imputed with knowledge of the contents thereof and even when such contents are adverse to the interest of the attestors so that the
attestors are estoped from questioning the same solely by reason of the fact of their having attested the document. Observations based on personal
perceptions and experience of individual Judges cannot be elevated to the status of Rules of law. Custom and usage are always a matter of
evidence and strict proof
Those observations are also clearly inconsistent with the law that had been laid down by the Privy Council in the case of Pandurang Krishnaji
and cannot be regarded as having laid down such inconsistent law. Moreover, whatever may have been the practice in the years 1912 or 1924,
the same cannot be regarded as the practice even eighty years later, when the awareness of the requirements of law is far greater than what it was
eighty years ago. Further, on principle it is not possible to hold that attestation of a signature is to be deemed as acceptance of the contents of the
document which has been executed by the signatory whose signature is attested by the attestor. There should be something more than mere
attestation to impute such knowledge of the contents so as to bind the attestors.
We have already noticed that in this case there is no material at all to show that the mother who attested the partition deed was aware of the
contents thereof or had accepted the same. When she was examined as D.W.1 in this case, she specifically stated that she had no knowledge of
the contents of the partition deed and that she came to know of it only when the suit was filed in the year 1984.
The title of the plaintiff''s mother, therefore, was wholly unaffected by the recitals in the partition deed to which she was not a party and that
partition deed did not have the effect of divesting her of her title and vesting the same in her husband. The mother also cannot be regarded as the
benamidar of her husband, as there is no material at all to show that she had accepted her position as benamidar and there is no decree of any
Court declaring the title of the father as the owner despite the fact that the title deeds and the entries in the Municipal records stood in the name of
the mother. The subsequent family arrangement does not improve the matter in any way as the father who himself did not have title to the property
prior to the partition could not have parted with the same in favour of his son. The mother had at all times remained the owner of the property. She
had dealt with the property as hers as evidenced by the petition filed by her against the tenant in the year 1982. It is also evident from her
deposition that her actions had the implicit support and acceptance of her husband as they were living together at all times.
The plaintiff cannot assert title to the property on the strength of the family arrangement and the partition deed that preceded it. The plaintiff has
failed to establish his title. The plaintiff not being entitled to the declaration sought, no question of granting any consequent relief arises for
consideration.
The appeal is allowed and the judgments and decrees of the trial Court and of the appellate Court are set aside. The suit filed by the plaintiff is
dismissed.