BRIJ RAJ SINGH (DEAD) BY LRS. AND ORS. versus SEWAK RAM AND ANR.

Citation: [1999] 2 S.C.R. 779 · Decided: 22-04-1999 · Supreme Court of India · Bench: K. VENKATASWAMI · Disposal: Appeal(s) allowed

Judgment (excerpt)

BRIJ RAJ SINGH (DEAD) BY LRS. AND ORS. 
v. 
SEW AK RAM AND ANR. 
APRIL 22, 1999 
[K. VENKATASWAMI AND A.P. MISRA, JJ.] 
./ 
Transfer of Property Act. 1882-Ss. 12 3 and 3-Gift deed-Executed by 
the original owner-Presented for registration by a duly authorised power 
A 
B 
of attorney-Duly attested by two witnesses and proved by one of them-
Deed registered as per Registration Act-Held, the requirements of the Act C 
fully complied with-Lower appellate Court and High Court not justified in 
holding that the gift deed was not proved 
Evidence Act, 1872-S. 68-Gift deed-Executed by the original owner 
in favour of appellants-Recovery suit against respondent-tenants-No 
objection regarding execution/attestation raised in the written statement or D 
in the cross examination or even before Trial Court-Suit decreed holding 
that the title was derived under a valid gift deed-Plea raised for the first 
time before/ Jhe appellate Court that the gift deed was not duly proved-
A//owed by both the appellate Court and High Court-Validity of-Held, the 
objection regarding validity of execution/attestation of gift deed is a mixed E 
question of fact and /aw-Thus, cannot be raised for the first time at the 
appellate stage. 
Appellant filed a recovery suit against the respondent-tenants on the 
basis of a gift deed. Respondents contested the suit on the ground that they 
were the owners, and the donor had no right in the suit property to make F 
a gift deed in favour of appellant. The Trial Court decreeu the suit holding 
that the appellant had derived title to the property under a valid gift deed. 
Aggrieved, the respondents filed an appeal and for the first time raised an 
objection that the gift deed was not duly proved in accordance with the 
provisions of the Act and hence cannot confer title on the appellants. The G 
Lower Appellate Court accepting the said objection allowed the appeal, which 
was also confirmed by High Court. Hence the present appeal. 
The appellant eontended that the lower appeJlate court and the High 
Court went wrong in allowing the defendants to raise an objection regarding 
execution or attestation of the gift deed as no such objection was specifically H 
779 
780 
SUPREME COURT REPORTS 
[1999) 2 S.C.R. 
A raised in the written statement not in the cross-examination of the plaintiffs 
witnesses nor even in the arguments before the trial court; the gift deed was 
duly attested by two witnesses on the first page of the document which was 
not noticed by the lower appellate court and the High Court; the attestation 
was d~ly proved by PW-6 who has subscribed his signatures in the gift deed 
B at three places in three different capacities namely, as scribe, as attesting 
witness and as identifying witness before the Registrar. 
The contention of the respondent was that the point regarding execution 
or attestation though raised for the first time before the appellate court is 
permissible as it was only a question of law and thus the Courts below were 
C justified in holding that the gift deed was not duly proved. 
Allowing the appeal, this Court 
HELD : 1.1. The gift deed was executed by the original owner and 
presented for registration by a duly authorised power of attorney and the 
D document was duly attested by two witnesses, out of whom one was examined 
to prove the deed and nothing more is required to satisfy the requirements 
of Section 123 of Transfer of Property Act, 1882 particularly when no 
specific denial was taken to the execution or attestation of the gift deed in 
the written statement or even before the Trial Court. Thus, the lower appellate 
Court and High Court were not justified in allowing the defendants to raise 
E the plea of non-compliance of section 123 of the Act and in holding that the 
gift deed was not proved. [796-G-H; 794-GJ 
F 
1.2. The High Court erred in proceeding that the gift deed was not 
attested by any of the witnesses as required under the Act. PW-6 has 
categorically stated that he has signed as scribe, as witness and as identifying 
witness. His signatures are found at three places. Nothing was elicited from 
this witness to disbelieve his statement in Chief-Examination. It is not denied 
that the deed was registered as per the Indian Registration Act. On the 
original gift deed at the first page by the side of signatures of the donor, two 
witnesses have subscribed their signatures. Section 3 of the Act specifically 
G states that no particular form need to be fol

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