1. The defendants in O.S. No. 605 of 1982, District Munsif's court, Nagarcoil, who are mother and son, have filed this second appeal against the judgment of the learned Subordinate Judge, Nagarcoil, reversing that of the learned District Munsif and granting a decree in favour of the plaintiff declaring that she is entitled to one third share in the suit property and directing a division of the same in addition to ascertainment of her share in the income.
2. The suit property admittedly belonged to the mother of the first appellant and her sister, the respondent. After the death of the mother in 1976, the father of the first appellant and the respondent executed a gift deed on 27.6.1979 in favour of the second appellant giving the entire property to him. The said gift deed was attested by the respondent. Alleging that she was not aware of the gift deed until the defendants put forward the same, in reply to a demand for partition made by her after the death of the father, the respondent filed the suit, out of which this appeal arises, for a declaration that the gift deed was not valid and binding with reference to her one-third share and for division of other property. The respondent also alleged that her signature was obtained in the gift deed in a fraudulent manner without informing her of the nature and contents of the document.
3. The appellants resisted the suit and contended that the respondent was fully aware of the nature and contents of the document and she had attested the same only by way of giving her consent to the transfer of the property in favour of the second appellant.
4. The trial court accepted the contentions of the defendants and dismissed the suit. On appeal, the learned Subordinate Judge has come to a different conclusion and granted a decree in favour of the plaintiff. The learned Subordinate Judge has found as a fact that the appellant was not aware of the contents of the document and that she did not know that she would be losing her one-third share in the property by witnessing the document. On the basis of the said finding of fact, the learned Subordinate Judge negatived the plea of estoppel put forward by the defendants and held that the plaintiff was entitled to claim her one-third share in the suit property.
5. In the second appeal, the substantial question of law framed by the appellants reads as follows:
Whether the lower appellate court is right in getting over the settled law of estoppel by attestation on the ground that the plaintiff has not joined the gift deed as a co-executant nor admitted the details of the transaction before Sub-Registrar?
6. Learned Counsel for the appellants strenuously contended that once a person attests a document, by which his right to the property is conveyed in favour of another person, then the attestor is estopped in law from contending against the title of the person in whose favour the document is executed. In support of the said contention, Learned Counsel referred to as many as 17 decisions, a list of which is furnished below:
Vadrev Ranganayakamma Y. Vadreva Bullluramiya (1880) 5 Calcutta L.R. 439 (P.C.); Kandaswami V. Nagalinga I.L.R. (1913) 36 Madras 564 (D.B.) : 23 M.L.J. 301; Narayana v. Rama I.L.R (1915) 38 Mad. 396 : 25 M.L.J. 219; Lakhpathi v. Rambodh, Singh I.L.R. (1915) 37 Allahabad 350; Nanda Lal Dhur Biswan v. Jagat Kishore Achayya Chowdhuri A.I.R 1916 P.C. 110 31 M.L.J. 563 : 43 I.A. 249; Gurdyaidas v. Nathu (1919) 50 I.C. 274; Krishnaji v. Markandeyatukaram (1922) 42 M.L.J. 436 : 15 L.W. 486 : A.I.R. 1922 P.C. 20; Nayakammai v. Munnaswamy Mudaliar (1924) 20 L.W. 222 : A.I.R. 1924 Mad.849. Sarkar Barnard and Co. v. Alak Manjary Kuari A.I.R. 1925 P.C. 89; Bhagwan v. Ujagar (1928) 27 L.W. 672 : A.I.R. 1928 P.C. 20: 54 M.L.J. 254. Janakirarn Sital Ram Firm v. The Chota Nagapur Bancer Assn. Ltd. I.L.R. (1936) 15 Patna 721; Krishna Govindan v. Chimma Chellamma ; Ramaswamy Gounder v. Anantha Padmanabhan (1971) 84 L.W. 176; Jaganatha Pillai v. Kunjithapatham Pillai 85 L.W. 112 : ; Jayarama Chandra Iyer v. Thulasi Ammal (1975) 88 L.W. 549 : A.I.R. 1976 Mad. 1 Ethirajammal v. Lakshmi Devi : 91 L.W. 590; Singanallur Municipality v. Vasantha Mulls Ltd. (1977) 90 L.W. 37 (N.R.C.).
Learned Counsel was fair enough to say that some of the decisions referred to by him were against him; but he had referred to them in order to give a complete list of the authorities upto date, though the number of decisions cited is somewhat large, the principle laid down in all the decisions is the same. After analysing all those decisions, I find that they lay down the proposition that if it is shown to the court that an attesting witness was a consenting party to a particular transaction, he would be estopped from questioning the effectiveness of the said transaction, on a later occasion on the ground that he was not a party thereto, though some of the decisions proceed on the footing that there is a sort of usage in this part of the country to obtain the signature of a party as an attesting witness whenever his consent is required for the said transaction. In all these cases, an inference has been drawn from all the facts and circumstances of the cases that the attesting witnesses therein were really consenting to the transaction in question. In fact, the Privy Council had occasion to refer to the so called usage in Pandurang Krishnaj v. Kundaya Thukaram (1922) 42 M.L.J. 436 : 15 L.W. 486 : A.I.R. 1922 P.C. 20 and observed as follows.
Before their Lorships consider the circumstances in which that attestation took place, they think it is desirable to emphasise once more that attestation of a deed by itself estops a man from denying nothing whatever excepting that he has witnessed the execution 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 Biswas v. Jagath Kishore Chowdri (1916) 31 M.L.J. 563 : (1916) L.R. 48 I.A. 249 : 4 L.W. 458 L.A.I.R. 1916 P.C. 110, that an attestation may take place in circumstances which would show that the witness did in fact know all the contents of the document, but no such knowledge ought to be inferred from the mere fact of the attestation.
The Privy Council further observed-
If in fact, there be a practice, as is suggested from the evidence, that when the consent of parties to transactions is required, it can be obtained by inducing them by one means or another, to attest the signature of the executing parties, the sooner that practice is discontinued, the better it will be for the straightforward dealing essential in ail business matters.
7. In spite of the said decision of the Privy Council, there are some cases decided by this Court in which attestation has been held to bind the attestor on the basis of the law of estoppel - evidence Ramaswami Gounder v. Ananthapadmanabha Iyer (1971) 84 L.W. 176; Jayarama Chandra Iyer v. Thulasi Ammal (1975) 88 L.W. 549 and Narayanasami Padayachi v. Sambanda Mudaliar (1977) 90 L.W. 37 (S.N.) But in all these cases it was found 6n the facts that the person who attested the document was a consenting party.
8. Though a Division Bench of this Court in Jagannatha Pillai v. Kunjithapatham Pillai has approved the decision in Ramaswami Gounder v. Ananthapadmanabha Iyer (1971) 84 L.W. 176 the Division Bench has also pointed out that mere attestation proved no more than that the signature of an executing party has been attached to a document in the presence of the attesting witnesses. The division Bench quotes the observations made by the Privy Council in Raj Lukhee Dobea v. Gokool Chander Chowdry (1867) 13 M.I.A. 209, as follows:
Their Lordships cannot affirm the proposition that the mere attestation of such an instrument by a relative necessarily imports concurrence. It might, no doubt, be shown by other evidence that when he became attesting witness, he fully understood what the transaction was, and that he was a concurring party to it, but from the mere subscription of his name that inference does not necessarily arise.
9. In Ethirajammal v. Lakshmidevi (1978) 91 L.W. 590 a single Judge of this Court refused to apply the principle of estoppel on the facts of that case as he took the view that there was no conscious abandonment or release of the interest of the attestor.
10. In my view, the correct position of law is stated by a Division Bench of the Kerala High Court in Govindan v. Chellamma . Their Lordships held that there can be no doubt that an attesting witness can be shown to have fully understood the particular transaction so that his attestation may support the inference that he was a consenting party. It was also observed by their Lordships that the question, is really one of fact and should be determined with reference to the circumstances. Their Lorships relied upon the decisions of the Privy Council in Sarkar Barnard and Co. v. Alaakmanjari A.I.R. 1925 P.C. 89. Bhagwan Singh v. Ujagar Singh A.I.R. 1928 P.C. 20 : 27 L.W. 672 : 54 M.L.J. 254. In the former case, the Privy council had to consider a converse situation where a person put his signature to a document not in the capacity as a witness but as signifying his approval of the transaction, and it was held that he was not an attesting witness. In the latter case, the Privy Council held that the attestation of a deed by itself estops a man from denying nothing whatever except that he witnessed the execution of the deed and by itself it does not show that he consented to the transaction which the document effects.
10. On the facts of the present case, I find that the lower appellate Court has after considering the evidence on record come to the conclusion that the plaintiff was not aware of the contents of the gift' deed executed by her father and she could not be said to be a consenting party to the transaction. In view of the said finding of fact, the principle of estoppel urged by Learned Counsel for the appellants cannot apply to the present case.
11. I would not have written this long judgment but for the insistence of Learned Counsel that the matter requires deep consideration. Though I was quite clear in my mind that the finding of fact arrived at by the learned Subordinate 3udge stood in the way of the application of the doctrine of estoppel, I went through the decisions cited by Learned Counsel for the appellant and came to the above conclusion
12. In the result, the second appeal falls and is dismissed.