KHUSHAL CHAND SWARUP CHAND ZABAK JAINversusSURESH CHANDRA KANHIYALAL KOCHAR AND ANR.

A           KHUSHAL CHAND SWARUP CHAND ZABAJ< JAIN
                                         v.
        SURESH CHANDRA KANHIYALAL KOCHAR AND ANR.

                                OCTOBER 4, 1994

B                (K. RAMASWAMY, S. C. AGRAWAL AND
                        N. VENKATACHALA, JJ.)

          Transfer of Property Act, 1882-Section 123-Gift Deed-Registered
    document-Execution admittecf-Due execution presumed-Beneficial enjoy-
C   ment of property retained by donor for her life time-Valid Gift-Will executed
    subsequently bequeathing property already gifted over is inconsequential.

          One R executed a gift deed dated June 20, 1957 in favour of respon-
    dent. Donor died in year 1966. About five months prior to her death she
    executed a registered Will dated 27th December, 1965 in favour of the
D   appellant bequeathing the self-shared property gifted over to the first
    respondent under the Gift Deed. The appellant filed a suit for declaration
    that he was the owner of the property. The suit was decreed. Appeal filed
    against the judgment was allowed by the High Court holding that the gift
    deed was duly executed by the donor in favour of the respondent and,
E   therefore, the appellant does not get any right under the Will. In the appeal
    by special leave filed against the judgment of the High Court, the appellant
    sought to contend that the gift deed has not been duly proved as the donor
    remained in the possession and enjoyment of the property as the owner
    and therefore, it must be treated to be a Will. Since she had execnted
    another Will dated 27th December, 1965, it must be deemed that the earlier
F   Will stood revoked.

          Dismissing the appeal, this Court

        HELD : 1. It is seen from the pleadings that the execution of the
  document has not been denied. On the other band the recitals in the Will
G executed by the donor establish that she admitted the execution. Once the
  execution of the document has been specifically admitted, the due execu-
  tion under the Registration Act is presumed to have been done as the gift
  is admittedly a registered document. Obviously the beneficial enjoyment
  of the property has been retained by her for her life time. Under these
H circumstances Rajabai having divested of her title of the property after
                                      218
                  K.C.S.C. ZABAKJAIN v. S.K. KOCHAR                   219

due execution and registration of the gift deed, she has been divested of A
her right and interest except her beneficial right to enjoyment of the
property during her life time. Therefore, the Will execnted by her in favour
of the appellant is a document which does not confer any right in the
bequeathed properties on the appellant and is inconsequential.
                                                           [221 ·A, B, D, E)
                                                                            B
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5028 of
1990.

     From the Judgment and Order dated 14.3.88 of the Bombay High
Court in L.P.A. No. 60 of 1984.
                                                                            c
        V.A. Bobde, S. L. Mudaliar and Alamjit S. Nand for the Appellant.

        A.M. Khanwilkar for the Respondents.

        The following Order of the Court was delivered:
                                                                            D
       The unsuccessful plaintiff is the appellant before us. One Raja Bai
 had executed a gift deed dated June 20, 1957 in favour of respodent No.1
Sureshchandra Kanhaiyalal Kochar. She died on 21 May, 1966. About five
months prior to her death she executed a registered Will dated 27th
December, 1965 in favour of the appellant bequeathing the self-shared
property gifted over to the first respondent under the Gift Deed dated June E
20, 1957. Initially the appellant filed the suit against the tenants claiming
possession thereof but when they pleaded the gifting over in favour of
Sureshchandra, the appellant impleaded him as a third respondent who
had pleaded in the written statement that Raja Bai had bequeathed the
property to him under the gift Deed dated June 20, 1957. Thereafter the
appellant has amended the plaint and sought for a declaration that he is F
the owner of the property. The trial court decreed the suit. In First Appeal
No. 174 of 1974 and Letters Patent Appeal No., 60 of 1984 the learned
Single Judge of the High Court and the Division J;!ench had held that the
gift deed was dnly executed by Rajabai in favour of Sureshchandra and,
therefore, the appellant does not get any right under the Will. Accordingly G
they dismissed the suit. Thus, this appeal by special leave.

      Shri Bobde, learned senior counsel for the appellant, sought to
contend that the gift deed has not been duly proved. He also contended
that the donor had not parted with the possession of the prope1ty covered
by the gift deed. On the other hand evidence on record shows that she       H
    220                   SUPREME COURT REPORTS (1994] SUPP. 4 S.C.R.

A remained in possession and enjoyment of the property as the owner.
    Therefore, the gift was not given effect to. In other words it could be
    treated to be a Will. Since she had executed the Will on 27th December,
    1965 it must be deemed that the earlier Will stands revoked, thereby the
    appellant is the owner of the property. We find no force in the first
    contention. The second contention was not raised in the courts below and,
B
    therefore, we cannot permit the learned counsel to raise that contention
    for the first time here without proper pleadings, evidence and considera-
    tion by the courts below.

            It is seen that Chagan Lal one of the attesting witness, was examined
C    on behalf of the appellant. Section123 of the Transfer of Property Act, 1882
     for short 'the Act' postulates that for the purpose of making a gift of
     immovable property, the transfer must be effected by a registered instru-
     ment signed by or on behalf of the donor and attested by atleast two
     witnesses. In Section 3 of the Act 'attestation' has been defined, - in
D    relation to an instrument, it shall be deemed always to have meant attested
    ·by two or more witnesses each of whom has seen the executant sign or
     affix his mark to the instrument, or has seen some other person sign the
     instrument in the presence and by the direction of the executant, or has
     received from the executant a personal acknowledgment of his signature
     or mark, or of the signature of such other person, and each of whom has
E    signed the instrument in the presence of the executant; but it shall not be
     necessary that more than one of such witnesses shall have been present at
     the same time, and no particular form of attestation shall be necessary.

          Section 68 of the Evidence Act prescribes proof of execution of the
F document required by law to be attested. It says that 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 by an attesting witness alive and subject to the process
    of the Court and capable of giving evidence, Provided that it shall not be
    necessary to call the attesting witness in proof of execution of any docu-
G   ment, not being a Will, which has been registered in accordance with the
    provisions of the Indian Registration Act, unless its execution by the person
    by whom it purports to have been executed is specifically denied.

         It is seen from the pleadings that the execution of the document hads
H   not been denied. On the other hand the recitals in the Will executed by
                 KC.S.C. ZABAKJAIN v. S.K KOCHAR                      221

  Rajabai establish that she admitted the execution. However, she stated A
  therein that it has been obtained by fraud and mis-representation. Fraud
  and mis-representation have been specifically dealt with and rejected by
  the learned Single Judge of the High Court as well as by the Division
  Bench. Once the execution of the document has been spedfically admitted,
  the due execution under the Registration Act is presumed to have been B
  done as the gift is admittedly a registered document. Moreover in this case,
  as seen from paragraph 7 of the judgment of the High Court, one of the
  attesting witness has been examined on behalf of the appellant who ad-
  mitted in the cross-examination that he attested the document. Son of
  another attesting witness and also the son of the scribe of the document
  have also been examined on behalf of the respondent. That evidence was C
  considered and the High Court found that the document has been duly
  proved. Under these Circumstances it must be concluded that due execu-
  tion of the gift deed has been proved by the respondent. It is no doubt
  clear from the evidence that Rajabai retained the possession of the proper-
  ty. Obviously the beneficial enjoyment of the property has been retained D
. by her for her life time. Under these circumstances Rajabai having divested
  of her title to the property after due execution and registration of the gift
  deed, she has been divested of her right and interest except her beneficial
  right to enjoyment of the property during her life time. Therefore, the Will
  executed in favour of the appellant is a document which does not confer
  any right in the bequeathed properties on the appellant and is inconse- E
  quential. The appeal is, therefore, dismissed with costs.

 A.G.                                                   Appeal dismissed.