Dixit, J.:—

This appeal raises a pure question of law and the suit giving rise to the appeal was filed under the following circumstances.

The property in suit which consists of 16 parcels of land with a house standing on one of them belonged to one Jayxam, husband of defendant No. 1. He had no issue, had grown old and was in indifferent health. Sundrabai (the plaintiff) appears to be related to Jayram. The plaintiff's husband Sonba was doing business in Bombay. Jayram appears to have pressed Sonba and his wife to go to, and stay with, him in order to manage Jayram's property.

On August 15, 1938, Jayram and his wife Ramabai (defendant No. 1) passed in favour of the plaintiff a deed of gift of his property.

Subsequently disputes seem to have arisen between the plaintiff and defendant No. 1, Jayram having died some time after the deed of gift. The plaintiff relying upon the gift filed in 1941 the present suit against defendant No. 1 and her tenants (defendants Nos. 2 to 7) asking for possession of some of the lands and constructive possession of others. There was also a prayer for injunction.

Defendant No. 1 who was the main contending defendant admitted the execution of the deed of gift but she contended that the deed was passed in the circumstances which rendered the gift-deed void and that as the gift-deed was attested by only one witness, it had not complied with the provisions of s. 123 of the Transfer of Property Act and the same could not be enforced.

The learned trial Judge raised several issues two of which need be noticed in this place. The first issue was “Does defendant No. 1 prove that the signature of herself and her husband on the gift-deed were taken in the circumstances alleged? Is not the gift-deed properly attested?” and he answered the issue by saying that defendant No. 1 did not prove the same and on the second part of the first issue he held that the gift-deed was not attested as required by s. 123 of the Transfer of Property Act. The second issue was “If so, can the gift-deed be acted upon and would it be binding on defendant No. 1?” and he answered the issue by saying that the gift-deed was not binding and not operative. In view of that conclusion of his, he dismissed the plaintiff's suit and on appeal by the plaintiff that decision was confirmed. The learned appellate Judge held that the lower Court was right in holding that the plaintiff had failed to prove that the document (exhibit 39) was attested as required by law. The plaintiff appeals.

It is argued on behalf of the plaintiff that the lower Courts were wrong in holding that the document was not attested by two witnesses as required by law.

Before dealing with this question I will turn to the material parts of the deed of gift. In this appeal we are not concerned with any question about the true construction of the document. We are only concerned with the question as to whether the document was duly attested. It is, therefore, best to begin with the concluding part of the document. The deed of gift is written by Shivram Sakharam Kubal, “inhabitant of Vengurla, to-day at Parule”. Then there is a place for attestation and one of the attestors is Laxman Jagannath Samant. There is a line for another attestation but there is actually no attestation. Then there are the signatures, that is to say, the mark of left-hand thumb of Jay ram as also the mark of the left-hand thumb of Ramabai, both the signatures being written by Laxman Jagannath Samant. Below that is this statement:—

“Received private attendance fee of Rs. 10 ten only on 13th August 1938 and credited to Government on the same date.”

Below that appear (1) thumb mark (2) thumb mark, apparently of Jayram and Ramabai without having been so described. And just above these two thumb marks is the statement that “(1) Jayram Anant Samant and (2) Ramabai bhratar Jayram Anant Samant, agriculture (and) house-hold work, Goud Brahmin (ages) 75/55, Parule, the executants of this document admit the execution of the document and affix their thumb mark.” There are words with a rubber stamp

Below these two thumb marks this is what is stated:—

“Hari Dadaji Desai (occupation) agriculture, (residing) in Parule, is known to the Sub-Registrar and states that he personally knows the executants Nos. 1 and 2 of the above document and identifies them.”

Then follows the signature of Hari Dadaji Desai and the date and below that is the-signature of the Sub-Registrar, Venguxla, and then there is the recital “Registered under No. 262 at pp. 184 to 190 of Vol. 224 of Book No. I, dated 22nd August 1938, Sub-Registrar, Vengurla.” It is in relation to this document that I have to decide as to whether the document can be said to be duly attested.

Now, the gift in order to be valid must conform to the provisions of s. 123 of the Transfer of Property Act. It provides that

“For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.”

Therefore, the three requirements to constitute a valid gift are (1) due execution, (2) due attestation, and (3) due registration. The expression “attested” is defined in s. 3 of the Act. In this connection it will be helpful to consider the material portion of the oral evidence in the case. Ramabai (exhibit 38) in her evidence says that Sonba told her that the deed was for her benefit and asked to put her thumb on it. Sundrabai (exhibit 40) in her evidence says that the gift-deed was executed in the house of Jayram, that the Sub-Registrar had been there, that after the writing of the gift-deed, Jayram handed it on to her, that Jayram and defendant No. 1 put their thumb on the gift-deed in her presence and that she accepted the gift and took the gift-deed and handed it over to the Sub-Registrar. Shivram (exhibit 41) who is the writer of the deed says that the Sub-Registrar and the witness had gone to Parule, that the Sub-Registrar was one Saswadkar, that the witness wrote the deed at the dictation of Ramabai and Jayram, that Jayram and Ramabai put their thumb on exhibit 39 in his presence, that the thumbs were attested by one Laxman Jagannath Samant in his presence and that Laxman Jagannath also signed exhibit 39 as a witness in his presence. It may be noted that this witness does not refer to the presence at this stage of Hari Dadaji Desai. Then the evidence of the attesting witness Laxman Jagannath Samant (exhibit 43) is this. He says that Ramabai and Jayram had passed it to Sundrabai, that Ramabai and Jayram had put their thumbs on the gift-deed in his presence, that he had attested the thumbs as asked by Jayram and Ramabai and that he had also signed on exhibit 39 as an attesting witness. It may again be noted that at this stage he does not refer to the presence of Hari Dadaji Desai. Then the evidence of Hari Dadaji Desai (exhibit 44) is this. He says that he knows Sundrabai and Ramabai and knows Jayram, and that Jayram and Ramabai have put their thumb on exhibit 39. It is apparent from what I have said above that the only person who had signed as an attesting witness is Laxman Jagannath Samant and the place for the second attestation is left blank. Learned Counsel for the appellant concedes that Laxman Jagannath Samant is the only attesting witness. But it is said that the Sub-Registrar must be considered to be an attesting witness and further that Hari Dadaji Desai, an identifying witness, must also be considered or deemed to be an attesting witness. In the present case the Sub-Registrar has not been examined. Hari Dadaji Desai has been examined and his evidence I have already referred to. Now, after the document is executed, at the time when it is to be presented to the Sub-Registrar certain formalities have got to be observed. This refers to an inquiry before registration by a registering officer which, is-indicated s. 34 of the Indian Registration Act. According to s. 34(3)(b) the registering officer shall thereupon satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document and after he is so satisfied the Sub-Registrar has then to follow the procedure laid down in s. 58 and s. 59 of the Indian Registration Act. Section 59 refers to the particulars to be endorsed on documents admitted to registration. And s. 58 provides:—

“The registering officer shall affix the date and his signature to all endorsements made under ss. 52 and 58, relating to the same document and made in his presence on the same day.”

Now, in the present case Hari Dadaji Desai appears only as an identifying witness and the document shows that he had identified the executants. His signature appears just below the two thumb marks made by Jayram and Ramabai when they admitted the execution of the document. It does not appear from the evidence that Hari Dadaji Desai was present when Laxman Jagannath Samant, the attesting witness, attested the document. The question then is whether Hari Dadaji Desai can be regarded or can be deemed to be an attesting witness. As the Sub-Registrar has not been examined it is, I think, unnecessary to consider whether the Sub-Registrar can be regarded as an attesting witness, assuming that he can be so regarded in law. On the face of the document the document appears to have been attested by only one attesting witness, and the requirement of s. 123 of the Transfer of Property Act is not clearly fulfilled. But if the Sub-Registrar and Hari Dadaji Desai can be regarded or can be deemed to be as attesting witnesses as learned Counsel contends, then it is clear that the document can be said to have been properly attested. But for reasons which I am about to mention, neither the Sub-Registrar nor Hari Dadaji Desai can, in this case, be regarded as attesting witnesses. As I have already said, s. 123 of the Transfer of Property Act contemplates three things (1) due execution, (2) due attestation, and (3) due registration. In the present case there is no dispute as regards the first and the third requirements. The point at issue is with respect to the second requirement; and if due execution and due attestation must precede due registration then it is not possible to hold that the Sub-Registrar and the identifying witness can properly be regarded as attesting witnesses. Besides, when a witness attests a document he does so with the consciousness that he witnesses the execution of a document. In the present case having regard to the evidence to which I have already referred the only attesting witness when the two executants affixed their signatures was Laxman and so, apart from authority, I hold that Hari Dadaji Desai cannot be said to be an attesting witness so as to comply with the provisions of s. 123 of the Transfer of Property Act.

However, the view which I take in the matter is supported by authority. It has been so held in a decision of the Allahabad High Court reported in Laxman Singh v. Surendra Bahadur Singh. The head note in that case is as follows:

“The signatures of the Sub-Registrar and of the witnesses identifying the executant at registration are not sufficient attestation of a mortgage deed for the purposes of the Transfer of Property Act, even assuming that the Sub-Registrar and identifying witnesses did receive from the executant a personal acknowledgment of his signature or mark, and that they did sign in the executant's presence.

“The mere fact that a person sees, or receives an acknowledgment of, the execution of a document and signs it does not make him an attesting witness, unless he signs with the idea of bearing testimony to the execution and with the idea further of permitting himself to be cited as a witness to prove the execution.

“Although the registering officer receives a personal acknowledgment from the executant of that fact of his executing the document, and puts his signature under a statement that the executant admitted the execution, he does not sign as an attesting witness. The identifying witnesses sign the endorsement on the document only in token of the fact that they have identified the executant before the Sub-Registrar, and do not sign as attesting witnesses.”

Learned Counsel has relied very strongly upon the case reported in Virappa Chettiar v. Subramania Ayyar. This case has been referred to in the Full Bench decision of the Allahabad High Court to which I have just referred and the Full Bench did not approve of the principle laid down in Veerappa Chettiar v. Subramania Ayyar In this Court there is a decision reported in Harkisandas v. Dwarkadas, which shows that this Court followed the decision in Lachman Singh v. Surendra Bahadur Singh, in preference to the decision in Veerappa Chettiar v. Subramania Ayyar And there is one more decision (unreported) in Timmavva v. Channava Mr. Justice Lokur after noticing the conflict of authority agreed with the view taken in Harkisandas v. Dwarkadas which accepted the view taken in Lachman Singh v. Surendra Bahadur Singh in preference to Veerappa Chettiar v. Subramania Ayyar. Therefore, the signatures of the Sub-Registrar and Hari Dadaji are not sufficient attestation as required by s. 123.

But assuming that the signatures constitute due attestation I may now refer to a decision of the Privy Council in Surendra Bahadur Singh v. Behari Singh. A part of the head note in that case is worth quoting:

“Assuming that it would be legitimate to look at the proceedings relating to the registration of a morgtage deed for the purpose of proving the due execution and attestation thereof, it is necessary, in order to comply with the provisions of the Transfer of Property Act, 1882, to prove that the Registrar and the identifying witnesses had signed the endorsement in the presence of the executant and that the admission of execution was made in the presence of the witnesses. Signatures of the Registrar and the identifying witnesses cannot, in the absence of proof of the abovementioned facts, amount to due execution and attestation of the mortgage-deed within the provisions of the Transfer of Property Act.

“Particulars which are endorsed on documents which are admitted for registration under s. 58 of the Indian Registration Act, 1908, do not include statements as to the aforesaid facts which are necessary for proving the due attestation of a mortgage deed according to the provisions of the Transfer of Property Act.”

The case in Lachman Singh v. Surendra Bahadur Singh, was a case relating to a mortgage and the present case deals with a deed of gift. But there is no difference between s. 58 and s. 123 on the question of due attestation. It may be mentioned that in that case, Their Lordships of the Privy Council did not actually settle the conflict between the decision in Lachman Singh v. Surendra Bahadur Singh and the decision in Veerappa Chettiar v. Subramarina Ayyar and at p. 1054 this is what is stated:—

“If it had been intended to rely on the proceedings of the registration as showing that the provisions of the Transfer of Property Act as to due execution and attestation of the mortgage-deed were complied with, evidence should have been given on behalf of the plaintiff to prove the necessary and material facts.”

So that the endorsemet by itself is not sufficient to prove due attestation within the meaning of s. 123. Evidence must be given to prove the necessary and material facts and in the present case the Sub-Registrar has not been examined and though Hari Dadaji Desai has been examined his evidence does not justify the conclusion that he can properly be regarded as an attesting witness. To quote his evidence once again, this is what he says:—

“I know Sundrabai and Ramabai and know Jayram. I see exhibit 39. Jayaram and Ramabai have put their thumb on exhibit 39.”

“I know Sundrabai and Ramabai and know Jayram. I see exhibit 39. Jayaram and Ramabai have put their thumb on exhibit 39.

Now Jayram and Ramabai had put their thumbs at two places, first when they executed the document and secondly when they admitted the execution before the Sub-Registrar. As to whether the witness refers to the thumbs first put by them or to the thumbs put by the executants when they admitted the execution before the Sub-Registrar, the evidence is vague and I am unable to say that this evidence can properly be interpreted to mean that the witness referred to the thumb marks when the executants executed the document. It is to be remembered that Hari Dadaji Desai has signed immediately below the signatures of Jayram and Ramabai when they admitted the execution of the document before the Sub-Registrar and in these circumstances and having regard also to the evidence of Sundrabai, Shivram and Laxman, when Hari Dadaji Desai refers to the thumb marks on exhibit 39 he really refers to thumb marks of the executants when they admitted the execution before the Sub-Registrar. Besides, the learned appellate Judge was not impressed with the evidence of Hari Dadaji Desai. This is what he says (p. 2).

“Now, it does not appear clearly from the evidence of this witness that the two thumb impressions referred to by him were the first two thumb impressions put by the executants in token of having executed the document or whether the thumb-impressions referred to by him were the two subsequent thumb impressions made by the executants in the presence of the Sub-Registrar in token of their acknowledgment of the execution of the document. The probability is that the witness refers to the subsequent two thumb marks.”

I am in agreement with this view. I have referred in some detail to the oral evidence only for the purpose of pointing out the material evidence in the case in order to satisfy myself if Hari Dadaji Desai can properly be regarded as an attesting witness. Hari Dadaji in his evidence does not say that Jayram and Ramabai admitted the execution of the document in his presence. He merely says that Jayram and Ramabai have put their thumb on exhibit 39. There is, therefore, no compliance with the requirements of s. 123.

For all these reasons I hold that the document (exhibit 39) has not been attested as required by law.

The result is that the appeal fails and must be dismissed.

On the question of costs learned Counsel for the appellant says that in the peculiar circumstances of the case there should be no order as to costs. Mr. Walawalkar for the first defendant objects and I think naturally. The plaintiff fails in this proceeding on a technical point and not on the merits of the disputes. Apparently there has been conflict of opinion between the High Courts on the question raised in the appeal though this Court in Harkisandas v. Dwarkadas has taken as correct the view propounded in Lachman Singh v. Surendra Bahadur Singh. However, having regard to the peculiar circumstances of the case the fair order will be that there will be no order as to Costs of this appeal.

Decree confirmed.

J.G.R