BALAPPA TIPPANNA Vs. ASANGAPPA MALLAPPA AND

JUDGEMENT

(1.) The suit out of which this appeal arises was for possession of the suit property. The plaintiff claimed under a gift from one Maritammappa. Defendant No. 2 who alone contested this suit is the brother's wife of the said Maritammappa and who is in possession of the suit property. In her written statement she inter alia stated as follows :

(2.) It should be mentioned that the witnesses examined in support of the plaintiff's case on the question of due execution were only one attesting witness (i.e., Anantarao, Ex. 61) and the grandmother of the plaintiff Mudiyawwa (Ex. 54). The plaintiff also called on Balavantarao Kulkarni who identified Maritammappa before the Sub-Registrar and who signed in token of such identification. The lower Appellate Court placed no reliance on the evidence of either the said attesting witness Anantarar or on the evidence of the grandmother of the plaintiff Mudiyawwa. The said attesting witness was declared hostile and he was allowed to be cross-examined by the plaintiff. This witness stated that the executant did not sign the gift deed in his presence and that the gift deed had been brought to him by Mudiyawwa and he did not ask Maritammappa as to whether he had executed any such deed. The lower Appellate Court held on such evidence, and in my opinion rightly, that this witness did not help the plaintiff in proving the attestation of the gift deed. The said Court, as I have mentioned, also did not rely upon the evidence of Mudiyawwa. As for the evidence of Balavantarao Kulkarni, the lower Appellate Court held that all that the said evidence proved, taking it along with the fact of registration of the document, was that the document was executed by the said Maritammappa. On this state of evidence the lower Appellate Court held that the attestation of the document in question has not been proved. The lower Appellate Court further held that the case of undue influence had been established. For the purpose of disposing of this appeal it would not be necessary for me to go into the question of undue influence. It seems to me that the view taken by the lower Appellate Court, viz. that the attestation of the document in question has not been proved, should be accepted and the suit must fail on that ground.

(3.) The learned advocate for the appellant relied on S. 68 of the Indian Evidence Act, and in particular the proviso thereof, and contended before me that as in this case there is no specific denial of the execution of the document by the person by whom it purports to have been executed, it is not necessary to call any attesting witness to prove the said document. The learned advocate's contention in effect was that the document in such a case, provided it is registered, proves by itself. In other words, his contention was that in such a case it is not necessary to call any evidence to prove the execution and attestation of the said document. I am unable to accept this contention. Section 68 of the Evidence Act reads as follows :