The question of attestation in case of making a gift of immovable property

It is well known that Section 123 of the Transfer of Property Act, which provides for the mode of making a gift of immovable property, inter alia, provides that the registered gift document by the donor must be attested by two witnesses. Section 68 of the Evidence Act, which provides for proof of execution of document, required by law to be attested, says that 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. However, the proviso therein says that it shall not be necessary to call an attesting witness in proof of execution of any decument, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act “unless its execution by the person by whom it purports to have been executed, is specifically denied.” There is also one other section in the Evidence Act, viz., S. 70, which says that the 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. With reference to this S. 70, it has been however held that the admission contemplated in S. 70 is an admission of execution in the manner in which a document required by law to be attested, is to be executed. In other words, the word “execution” in S. 70 designates the whole operation, including signing by the executant and attestation by the witnesses. (Vide E.Su. Na. Sheikh Davood Rowther and Others Vs. N.R.M.N. Ramanathan Chettiar and Others,AIR 1938 Mad 43 : (1938) ILR (Mad) 523 : (1937) 46 LW 610]

In Pichai Pillai Konar Vs. Krishnaswami Konar and Others[(1984) 97 LW 190 : (1984) 2 MLJ 160], , it has also been observed that the fact that a person calls himself a scribe in a certain document does not debar him from being an attesting witness, if he has in fact witnessed the execution.

In Dhruba Sahu (dead) and after him Nalumoni Sahu and Another Vs. Paramananda Sahu[AIR 1983 Ori 24 : (1982) 54 CLT 560], also, it has been held that when a person puts his signature on the document, both as scribe and as attesting witness, the inference is that he functioned both as scribe and as attesting witness. It has been held that when a man places his signature upon a document and at the same time describes himself as writer thereof, the inference is that he signs as the writer and nothing else, but as a matter of fact it can be shown that he signed not only as the writer, but also as witness of the fact that he saw the document executed.

In Balwant Singh Vs. Chatin Sing and Others, it has been also held that where after the execution of the gift deed, thumb impression of the mother of minor donee was obtained thereon in token of acceptance of gift, the gift could be said to be accepted by the mother of the donee. Likewise, in Balwant Singh Vs. Mehar Singh, also it has been held that where a gift deed was signed by the donee, both at the time of execution and when it was presented to the Sub-Registrar for registration, the donee’s signature on the two occasions must be held to have been appended in token of acceptance of the gift.


Cases Referred

Khwaja Mazhar Uddin Vs. Rama Shankar Amist and Others, AIR 1956 All 169
Bindeshri Prasad and Others Vs. Panchayati Akhara Maha Nirbani Goshain, AIR 1936 All 169
E.Su. Na. Sheikh Davood Rowther and Others Vs. N.R.M.N. Ramanathan Chettiar and Others, AIR 1938 Mad 43 : (1938) ILR (Mad) 523 : (1937) 46 LW 610
Chennupati Venkatasubbamma Vs. Nelluri Narayanaswami, AIR 1954 Mad 215 : (1953) 66 LW 841
Pichai Pillai Konar Vs. Krishnaswami Konar and Others, (1984) 97 LW 190 : (1984) 2 MLJ 160
Balwant Singh Vs. Chatin Sing and Others, AIR 1985 P&H 74
Balwant Singh Vs. Mehar Singh, AIR 1974 P&H 130
Dhruba Sahu (dead) and after him Nalumoni Sahu and Another Vs. Paramananda Sahu, AIR 1983 Ori 24 : (1982) 54 CLT 560
Mst. Samrathi Devi Vs. Parasuram Pandey and Others, AIR 1975 Patna 140