TIMMAVVA DUNDAPPA BUDIHAL Vs. CHANNAVA APPAYA KANASGERI

JUDGEMENT

(1.) THIS appeal arises from a somewhat unfortunate dispute between the plaintiff and her father. The plaintiff has been a widow since her childhood and it is her case that she was brought up by her father and treated with great affection. In 1936 her father made a gift to her of the property in suit and in that behalf executed a registered document on August 21, 1936. Almost immediately after the deed was executed the father apparently changed his mind and would not allow the plaintiff to take possession of the property conveyed to her under the deed or to enjoy it peacefully. That is why the plaintiff was driven to file the present suit on the deed of gift executed in her favour. Originally the plaintiff had asked for an injunction on the ground that she was in possession of the property in question at the date of the suit. Subsequently, however, she made an alternative claim for possession and gave up her claim for injunction.

(2.) THE claim made by the plaintiff on the deed of gift was resisted by her father, defendant No.1, on three main grounds. He alleged that the deed of gift had been executed by him as a result of undue influence practised on him by the plaintiff's friend Rangappa; that the property which had been conveyed under the deed of gift was not his separate property but that it belonged to the joint and undivided family of himself and his nephew who was defendant No: 2 to this suit and the deed of gift executed by him was therefore invalid under Hindu law. He also pleaded that the document on which the plaintiff relied had not been properly executed. Pending the hearing of the suit in the trial Court the father died, and his widow was brought on the record.

(3.) BESIDES, the admission mentioned in Section 70 must, in our opinion, be an admission about the due execution of the document which would include an admission as to its proper attestation. The statement made by the executant before the Sub-Registrar at the time when the document was offered for registration could not be regarded as an admission about its due attestation. Under the Registration Act the Sub-Registrar is required to satisfy himself that the document is executed by the party whose signature it purports to bear and that the person offering it for registration is shown to his satisfaction to be its executant or his representative, assignee or agent. It is no part of his duty to consider the further question as to whether the document has been duly attested. In this view even if the statement made by the executant before the Sub-Registrar be regarded as one to which Section 70 of the Indian Evidence Act applies, that statement would be insufficient because it would not be an admission of the type contemplated by Section 70.It may be pointed out that this point was argued before Mr. Justice Lokur in another form. It was suggested before him that in a purshis, exhibit 82, filed on behalf of the defendants the execution of the document had been admitted, and it was contended that since the said admission had been made in the proceedings in the suit itself, it was unnecessary to prove its attestation by separate evidence. Mr. Justice Lokur, however, held, agreeing with the conclusions of the Courts below, that the statement contained in exhibit 82 did not amount to any admission at all. In view of the plea specifically made by defendant No.1 in his written statement that conclusion is obviously right. The result is that the appellant has got to prove due attestation of the document since she is not able to bring her case within Section 70 of the Evidence Act.