This Second Appeal is preferred by the plaintiff. His suit to set aside a summary order passed in E. A. 2158/45 in O. S. 389/45 and to recover possession of the suit land from the defendants etc., was dismissed by the Subordinate Judge, Guntur in appeal against the judgment of the District Munsif of Guntur decreeing the suit. The facts necessary to appreciate the points arising in this Second Appeal may be briefly narrated.
The plaintiff claiming to be a donee from one Ramayya filed O. S. 389/45 in the Court of the District Munsif Guntur for ejectment and for arrears of rent against a lessee whose lease expired on 4-7-1945. After obtaining the decree, the plaintiff went to take possession of the property in execution thereof. Defendant 3 putting forward a lease from Defendant 2 caused him obstruction. He unsuccessfully moved the Court for the removal of obstruction. This led him to institute the present suit.
2. Defendant 2 is the widow of one Nagayya the brother of Ramayya who was the donor of the plaintiff, defendant 1 being the widow of his donor. The gift is evidenced by Ex. A-4 dated 24-5-1943. Two years later, Ramayya the settlor sought to revoke the document on the ground that he was not being maintained as arranged between the parties under the document. A few days thereafter the settlor died. A suit was filed by the widow of Ramayya for a declaration that the gift in favour of the present plaintiff was inoperative as it stood revoked and also for the reason that it was obtained by undue influence. This suit was dismissed as the donor could not validly cancel the document. The present suit is filed on the assumption that the whole family property belonged to Ramayya as Nagayya predeceased him.
3. Various defences were raised to the action among which were that there was a division between Ramayya and Nagayya prior to the latters death at which the suit property was allotted to Nagayyas share, that ever since that date it had been in possession and enjoyment of Nagayya and subsequently his widow defendant 2 through her lessees and that the gift deed was ineffective as it was revoked by the donor before his death.
4. The trial Court agreeing with the contentions of the plaintiff granted a decree. In its opinion the gift was still in force and the plea of partition was not substantiated. On appeal the subordinate Judge set aside the decision of the trial Court disagreeing with it on every finding including the existence of a valid gift deed in favour of the plaintiff.
5. In this appeal, the correctness of the judgment under appeal is canvassed. It is first urged by Mr. Kotayya that the view of the appellate Judge that the document cannot be said to have been proved as any one of the attesting witnesses was not examined as required by S. 68, Evidence Act is erroneous. It is his case that there was sufficient compliance with the provisions of S. 68, Evidence Act as the scribe of the document gave evidence that it was executed by the donor and voluntarily and that it was duly attested.
6. I am inclined to agree with this submission. Section 68, Evidence Act recites :
"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. ** **"
Undeniably one attesting witness was alive at the relevant time. The question for consideration is whether the non-examination of one of the persons who subscribed his signature as an attesting witness results in the document being excluded from evidence. In my opinion, the proof contemplated in this section can be furnished by the scribe of the document who could speak to the execution of it and it is not essential that it should be proved only by at least one of the attesting witnesses.
7. This question has come up for judicial review in a number of cases. In - Parama Siva Udayan v. Krishna Padayachi, 1918 Mad 491 (AIR V 5) (A), it was laid down that the writer of a document who signed his name as a scribe can be treated as an attesting witness if he had seen the executant signing the document. There are earlier decisions which have taken the same view - "Veerappaudayan v. Muthu Karuppa, 24 Mad LJ 534 (B), and - Ayyasami Iyengar v. Kylsam Pillai, 1915 Mad 1052 (1) (AIR V 2) (C).
It is true in cases where the scribe signed the memo before the document was actually executed, it would mean he did not witness the execution and it would not satisfy the requirements of that section if such a person is examined as an attesting witness. An illustration of this is furnished by - Badri Prasad v. Abdul Karim, 35 All 254 (D). Thus, it depends greatly upon the facts of each case, whether a scribe is also an attesting witness or not. In the instant case, the writer of the document signed the same as a scribe after the attesting witnesses had affixed their signatures which implies that he has seen the executant sign his name.
As already stated, he deposed that he saw not only the executant affixing his signature but the attestation as well. The rule stated in - Ranu v. Laxmanrao, 33 Bom 44 (E), is in accordance with the principle adumbrated above. It was stated there that an attesting witness is a "witness who has seen the deed executed and who signs it as a witness". On this discussion it follows that the gift deed Ex. A-4 was duly proved.
8. It was then contended by Mr. Ramanarsu for the respondents that as the condition of the gift taking effect was the donee maintaining the donor, the latter could revoke the document under S. 126, Transfer of Property Act since the donee had neglected to maintain the donor. I do not think S. 126, Transfer of Property Act has any application to a case of this description. Section 126 provides that
"the donor and donee may agree that on the happening of any specified event which does not depend upon the will of the donor a gift shall be suspended or revoked, but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor is void wholly or in part as the case may be. A gift may also be revoked in any of the cases in which, if it were a contract it might be rescinded."
9. The present case cannot be brought within the ambit of the section firstly for the reason that there is no agreement between the parties that the gift should be either suspended or revoked; and secondly this should not depend on the will of the donor. Again, the failure of the donee to maintain the donor as undertaken by him in the document is not a contingency which could defeat the gift under Ex. A-4.
All that could be said is that the default of the donee in that behalf amounts to want of consideration. Section 126 itself provides against the revocation of a document of gift for failure of consideration. If the donee does not maintain the donor as agreed to by him, the latter could take proper steps to recover maintenance etc. It is not open to a settlor to revoke a settlement at his will and pleasure and he has to get it set aside in a Court of law by putting forward such pleas as bear on the invalidity of gift deed.
10. It was next urged by counsel for the respondents that in any event effect should not be given to it as it was obtained by fraud or undue influence. This plea, in my opinion, is not available to a third party like defendant 2 or one claiming under him like defendant 3. Defendant 1 is precluded from raising this question as the earlier adjudication operates as res judicata against her.
It follows that the plaintiffs could rely upon, Ex. A-4 as a source of title. But, this will not entitle the plaintiff either to have the summary order set aside or to recover the suit property unless the issue regarding partition between Nagayya and Ramayya is decided in his favour.
11. In proof of the case of defendants 2 and 3 that there was partition between the brothers at which this item fell to the share of Nagayya, apart from oral evidence, they called in aid Ex. B-12 a partition list. The ground of attack against this document was two-fold. One was that this was not a genuine document and the other was that even if it were genuine it was inadmissible in evidence for want of registration. This document was impounded in the trial Court but as it was thought that it was not a genuine document the question of its admissibility for want of registration was not gone into by the District Munsif.
On appeal the learned Judge came to the opposite conclusion on the question of the genuineness of Ex. B-12. He also felt that notwithstanding the in admissibility of this document the partition was proved by overwhelming evidence. In the opinion of the learned Judge the partition between Nagayya and Ramayya at which the suit property was allotted to the share of Nagayya was established and as this property was bequeathed to his wife by Nagayya under a will Ex. B-1 her lessees possession could not be disturbed by the plaintiff and therefore the suit was liable to be dismissed.
12. This view of the learned Judge is attacked by Mr. Kotayya counsel for the appellant. It is argued by him that Ex. B-12 an unregistered document being inadmissible in evidence for want of registration oral evidence could not be adduced to prove partition. For this position reliance was placed on a ruling of the Full Bench of the Madras High Court in - Ramayya v. Achamma, 1944 Mad 550 (AIR V 31) (F).
According to learned Counsel the cited case is authority for his contention that the result of the non-registration of the document was that the property remained as the joint family property and that Ramayya the sole surviving member of the family was entitled to the property and that Nagayyas widow Subbamma could not lay any claim thereto. The basis for this proposition is the passage at p. 551 of the report :
"As the property in suit admittedly had belonged to the joint family the change in its character must be proved. As the agreement for partition cannot be proved the Court can only regard the property as still belonging to the joint family."I do not think the rule stated in the passage extracted above is pertinent to the present case. In the Full Bench case, it only transpired, in the course of the case that a partition had taken place and in that connection a document was drawn up and signed by the parties but the document was not produced. The Courts proceeded on the assumption that such a document came into existence. The position will be different if the document is filed in Court.
It is true that it cannot be used for proving division by metes and bounds, but it could surely be used for the purpose of ascertaining whether there was a division in status or not. There is clear authority for this position in - Subba Rao v. Mahalakshmamma, 1930 Mad 883 (AIR V 17) (G). This was referred to with approval by the Full Bench in 1944 Mad 550 (AIR V 31) (F). The same view was taken by Patanjali Sastri, J. in - Veeraraghava Rao v. Gopalarao, 1942 Mad 125 (AIR V 29) (H), which was confirmed in Letters Patent appeal and which opinion found favour with the Full Bench in preference to the one expressed by Kumaraswamy Sastry and Venkatasubba Rao, JJ. in - Ramuchetty v. Panchammal, 1926 Mad 402 (AIR V 13) (I).
13. In these circumstances, even if this document should be regarded as deed of partition and is inadmissible in evidence for proving division by metes and bounds its terms could certainly be looked into to decide whether there was a division in status or not. This however need not detain me as the document does not seem to be one which purports to partition the properties and therefore does not come within the mischief of S. 17(1)(b), Registration Act which requires non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish whether vested or contingent to the value of Rs. 100/- or upwards in or to immoveable property" to be registered.
In order to come within the scope of the sub-section the document should operate or at least purport to operate to create or declare etc., some right, title or interest in any property. In other words the deed by itself should either create or declare any right, title or interest in the property. If, on the other hand, it contains a recital of what had already taken place the penalty for non-compliance with the requirement cannot be governed by that section.
There is a clear distinction between a mere recital of a fact and something which in itself creates title in any person. If the document is of the latter category it is compulsorily registrable under the above provision of law and failure to do so will result in the exclusion of that document from evidence. To put it in another way it is only in cases where the document constitutes a bargain between the parties that it should be registered. If it is intended to evidence a past transaction it is excluded from the operation of that section.
Mr. Kotayya cited a ruling of the Punjab High Court in - Lehana Singh v. Rulia, 1953 Punj 48 (AIR V 40) (J), as containing a contrary view. But a reading of that decision shows that it is far from giving any assistance to the appellant. That was a case in which a compromise embodied in a document arrived at between the parties by itself caused a change of relation to the property which was divided amongst all the parties and not a mere record of a past completed transaction.
In fact the learned Judges referred to - Sakharam Krishnaji v. Madan Krishnaji, 5 Bom 232 (K), and - Bageshwari Charan Singh v. Jagar Nath Kuari, 1932 PC 55 (AIR V 19) (L), and distinguished them from the case before them on the ground that it was
"not one which can be called recital of past transaction but it in itself created rights in immoveable property which is covered by S. 17". That case therefore is inappropriate in the present enquiry.
14. The view taken by me is reinforced by decided cases of the various High Courts and also of the Privy Council. 5 Bom 232 (K), contains the proposition stated above. A passage from the judgment of West, J. is apposite in this context.
"Thus a deed of partition, which causes a change of legal relation to the property divided amongst all the parties to it, is a declaration in the intended sense; a letter containing an admission, direct or inferential, that a partition once took place, does not declare a right within the meaning of the section.
15. The test propounded by Venkatasubba Rao and Abdur Rahman, JJ. in - Bapayya v. Ramakrishnayya, 1938 Mad 568 (AIR V 25) (M), is whether the documents constitute the bargain between the parties or it was merely a record of an already completed transaction and whether there is sufficient dissociation of the transaction from the document. The learned Judges referred to earlier rulings which have taken the same view. The pronouncements of the Privy Council in 1932 PC 55 (AIR V 19) (L), accord with the principle enunciated in the above-mentioned cases.
Their Lordships of the Judicial Committee after referring to a number of rulings of the Indian Courts which have taken the view indicated above remarked that that they had no doubt that "this track of decision is right" and "though the word declare might be given wider meaning they are satisfied that the view originally taken by West, J. is right. This view was reaffirmed in subsequent case by the Privy Council in - Subramnian v. Lutchman., 1923 PC 50 (AIR V 10) (N).
16. Applying this principle in mind, I have to examine the terms of the document. At the outset, it may be mentioned that the document is styled as a partition list. This may not be decisive in deciding whether this is really a partition document or a record of partition that took place some time back. The recitals in the document also indicate that it bad reduced to writing something that had already occurred. It states that these properties were allotted to the share of Nagayya.
It does not give any indication that under this document any rights were created in any party. Mr. Kotayya argues that even if it relates to a past transaction it has the effect of declaring the rights of the parties so as to attract the provisions of S. 17.
I do not think that the word "declare" has such a wide connotation as attributed to it by Mr. Kotayya. The declaration contemplated in that section should be in PRAESENTI. It does not cover a statement of fact relating to a past event.
17. Apart from the recitals in the document there is abundant oral evidence that the partition took place at least a month before Ex. B-12 was brought into existence. The lower appellate Court accepted this evidence. Sitting in second appeal, it is not open to me to differ from the lower appellate Court in regard to that matter.
The result of this discussion is that Ex. B-12 is not a document which requires registration by reason of S. 17(1)(b) and is admissible for proving not only division in status but for the purpose of showing that there was a division by metes and bounds and the suit property was allotted to defendant 2s husband. If so, defendant 2 is certainly entitled to it and defendant 3 who claims under her has a right to be in possession of the property during the lease period and the plaintiff cannot ask for any relief in respect thereof. The second appeal is therefore dismissed without costs in view of the fact that the appellant has succeeded on the question of validity of Ex. A-4. No leave.
18. In the view I have taken above the leave asked for withdrawing the appeal with liberty to file a fresh suit has to be refused. The petition is therefore dismissed.