Karuppiah Mooppanar vs Muthukaruppan Servai

Maharajan, J.—This is an appeal against the judgment of the District Judge of Tirunelveli setting aside the judgment and decree of the

District Munsif, Tenkasi, in O. S. No. 65 of T968, and remanding the suit for fresh disposal in accordance with law. The respondent,

Muthukaruppan Servai, who was the plaintiff in the trial Court, instituted the suit against appellant -- defendant, Karuppiah Mooppanar, for

partition and separate possession of his one-fourth share in the suit property and for recovery of future mesne profits. The plaintiffs case was that

the property originally belonged to Madasami Mooppanar, his father, and that upon the death of Madasami Mooppanar, his four sons Pechimuthu

Mooppanar, Rukka Mooppanar, Velliappa Mooppanar and himself became entitled to the suit property and that during the plaintiff''s absence

away at Bickramasingapuram, the defendant had unauthorisedly put up a thatched house on the suit property. It was in these circumstances, says

the plaintiff, that he instituted the suit for partition of his one-fourth share.

In the written statement the defendant contended that be had purchased the whole of the suit property from the plaintiff and his three brothers

for Rs. 50/- under a registered sale deed Ex. B-4 dated 14-2-1957. The plaintiff denied execution of Ex. B-4. The trial court framed 6 issues,

examined the plaintiff as P. W. 1, and the defendant as D. W. I and marked nine exhibits in the course of the trial. Upon a discussion of the oral

and documentary evidence, the trial Court answered all the issue against the plaintiff after holding affirmatively that the plaintiff and his three

brothers had conveyed title to the suit property in favour of the defendant validly under Ex. B-4., a registered deed of sale dated 14-2-1957. In

support of this Ending the learned District Munsif relied on the following circumstances.

While P. W. 1, the plaintiff, was in the witness box, he was confronted with the signature of the executant found in Ex. B-4. The plaintiff felt

forced to admit that the signature in Ex. B-4 is his. Further, Ex. B-4 purports to bear the signature of the plaintiff admitting execution before the

registering officer. What is worse, on the same day as Ex. B-4, two other sale deeds, Exs. B-l and B-2 were admittedly executed and registered

by the plaintiff and his three brothers in the same Registrar''s office. Taking this disastrous admission of the plaintiff in conjunction with his admission

that the signature in Ex. B-4 is his, the learned District Munsif came to the conclusion that the plaintiff has jointly executed Ex. B-4 alone with his

three brothers in favour of the defendant on 14-2-1957 and that the plaintiff''s suit for partition was not maintainable without a prayer for

cancellation of the above sale deed. He further held that the plaintiff was estopped from claiming any right in the suit property after having sold it

away under Ex. B-4. There was also the evidence of D. W. 1., the defendant, relating to the execution of Ex. B-4 and the presentation of the same

by the executants before the Registrar at the time of the registration. The learned District Munsif also took into account the fact that the plaintiff had

no consistent case. In Ex. A-1, a notice sent before suit to the defendant, the plaintiff had claimed the entire property as his own, whereas in the

plaint his claim shrank to one-fourth share therein. It was in the light of the circumstances stated above that the trial court dismissed the suit with

costs. 4. The plaintiff preferred an appeal against this judgment of dismissal to the District Court, Tirunelveli, and the first appellate Court, upon a

very narrow and hypertechnical view of the legal position, came to the conclusion that there was a legal obligation upon the defendant to prove Ex.

B-4 by calling at least one of the attestors thereto and that inasmuch as he had failed to do so, Ex. B-4 could not be used as evidence in view of

the mandatory provision of Section 68 of the Evidence Act. Section 68 of the Evidence Act runs as follows:

If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose

of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been

registered in accordance with the provisions of the Indian Registration Act 1908, unless its execution by the person by whom it purports to have

been executed is specifically denied.

The learned appellate Judge says that even in his rejoinder to the defendant''s notice before suit, the plaintiff had denied execution of Ex. B-4 and

therefore the proviso to Section 68 does not avail the defendant, who, under the main Section 68, is bound to call at least one attesting witness to

prove Ex. B-4. It was contended on behalf of the learned counsel for the defendant that u/s 70 of the Evidence Act admission of a party to an

attested document of its execution by himself shall be sufficient proof of its execution as against him though it be a document required by law to be

attested. The defendant''s counsel further contended that there was such an admission of execution of Ex. B-4 in this case, because P. W. 1., the

plaintiff, had admitted before the trial Court as follows;

I have signed in Exhibit B-4 sale deed and before the Sub Registrar. In the second page of Exhibit B-4 I have signed."" According to the learned

counsel for the defendant, this was an admission by the plaintiff of execution of Ex. B-4 and therefore the defendant was relieved u/s 70 of the

Evidence Act of the obligation to call at least one attesting witness to prove its execution. This was repelled by the counter argument of the first

appellate court that the plaintiff''s admission of his signing Ex. B-4 did not really tantamount to admission of his execution. It is, however, contended

by Mr. Natarajan before me that neither Section 68 nor Section 79 of the Evidence Act would have any application to the facts of this case. He

contends, and in my view rightly, that Ex. B-4, the sale deed is not a document required by law to be attested. There is nothing in the Transfer of

Property Act which requires a sale deed to be attested. Section 59 of the Transfer of Property Act says :

Where the principal money secured is one hundred rupees or upwards a mortgage other than a mortgage by deposit of title deeds can be effected

only by a registered instrument signed by the mortgagor and attested by at least two witnesses.

Contrast the language of Section 59 of the Transfer of Property Act with that of Section 54 of the same Act, which says that a transfer of

ownership in exchange for a price, in the case of tangible immovable property of the value of one hundred rupees and upwards can be made only

by a registered instrument, There is nothing whatsoever in this section requiring a sale deed to be attested. It would, therefore, follow that a sale,

though attested, does not depend upon attestation for its validity. It would therefore be unnecessary to ''prove it by calling an attesting witness. As

observed in Sarkar''s Law of Evidence, Ninth Edition, Page 566.

Sale deeds, bonds, etc., do not come within the rule and they may be proved by the evidence of any other witness who saw execution, though he

is not an attesting witness.

In fact, Section 72 of the Evidence Act says :

An attested document not required by law to be attested may be proved as if it was unattested.

It is true that Ex. B-4 though not required by law to be attested, has been attested by two witnesses But then, u/s 72, it is not obligatory on the part

of the person pro-pounding the document to examine the attesting witness. The testimony of the attesting witness is not the only evidence by which

a sale deed can be established. It can be done by other kinds of evidence. The learned District Judge was therefore wrong in holding that Ex. B-4

is a document required by law to be attested and that it could not be used as evidence because the defendant hits failed to call at least one attesting

witness for the purpose of proving its execution. As I have already said, there is ample evidence on record from which the trial Court could

justifiably hold that execution of Ex. B-4 was proved to its satisfaction. Apart from the evidence of D. W. 1, the vendee under Ex. B-4, there was

the admission of P. W. 1 that the signature on Ex. B-4 was his and that he had executed and registered two other sale deeds Exs. B-1 and B-2 on

the same day as Ex. B-4. I may also add that the learned District Munsif compared the admitted signatures of the plaintiff with the signature in Ex.

B-4 and satisfied himself that the evidence relating to the execution of Ex. B-4 was acceptable. As the entire basis of the remand order passed by

the first appellate Court is vitiated by an error of law, I set aside the remand order, allow this appeal with costs and direct the first appellate Court

to restore A. S. No. 198 of 1969 to its file and dispose it of on the merits in the light of the observations made in this judgment.