An attesting witness of a sale deed is not bound by the contents of the sale deed - He can always deny its contents

PUNJAB AND HARYANA HIGH COURT

Before :- M.M. Kumar, J. 

Regular Second Appeal No. 1201 of 2003. D/d. 3.7.2003

Ramesh Chander - Appellants Versus Budha Singh - Respondent

For the Appellants :- Shri B.R. Mahajan, Advocate.

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JUDGMENT M.M. Kumar, J. - This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging concurrent findings of facts recorded by both the Courts below holding that plaintiff- appellants have failed to prove that the portion of the compound was in joint ownership of Khazan Singh and defendant respondent Budha Singh.
It has also been held that plaintiff-appellants failed to examine their vendor Khazan Singh and which would lead to an adverse inference against them. It has been categorically found that defendant-respondent Budha Singh alongwith his brother is exclusive owner of the compound shown as ABCD in red colour in the site plan Ex. P.1 and plaintiff-appellants have no right, title or interest in this petition. Accordingly, they are not entitled to interfere in this portion of the compound.
2. Shri B.R. Mahajan, learned counsel for the plaintiff-appellants has argued that registered sale deeds Ex. P.1 and P.2 dated 19.7.1990 were signed by defendant-respondent Budha Singh as an attesting witness and once he has appended his signature he is bound by its contents also. According to the recitals in the sale deed Ex. P.1 and P.2 even the stair case is part of the sale transaction and is shown to be sold to the plaintiff-appellant. Therefore, the learned counsel submitted that the stair case would also be deemed to be transferred by the sale deeds Ex. P.1 and P.2.
3. I have thoughtfully considered the submissions made by the learned counsel and am of the view that there is no merit in this appeal. The afore-mentioned submission has been considered by the ld. Addl. District Judge in the impugned judgment. Relying upon a Division Bench judgment of this Court in the cases of Ram Gopal v. L. Mohan Lal and others, AIR 1960 Pb. 226 and other judgments in the cases of Pandurang Krishnaji v. M. Thukaram, and others, AIR 1922 PC 20 and Si-raj Ud-Din v. Mr. Rahiman and others, AIR 1938 Lah. 978, the ld. Addl. District Judge held as under :

"Plaintiffs Ramesh Chander and Sheh Lata are simply relying upon the recital in the sale deeds Ex. P.1 and Ex. P.2 wherein it has been written that the shop alongwith the stair case is sold to the plaintiffs. It may be mentioned here that in Ex. P.1, Budha Singh was neither party nor attesting witness. However, in Ex. P.2, Budha Singh was the marginal witness, but he was not aware of the fact that Khazan Singh had also included stair case, which is situated in the property of Budha Singh, in the sale deed vide which Khazan Singh sold the shop in question to the plaintiffs Ramesh Chander and Sneh Lata and he simply attested this sale deed. By merely attesting sale deed, defendant Budha Singh cannot be held bound by the contents of the sale deed. It has been held by the Division Bench of our own Hon'ble High Court in case Ram Gopal v. L. Mohan Lal and others, AIR 1960 Pb. 226 that mere attestation of a deed does not by itself impute to the attesting witness any knowledge of its contents. So as to make out a case of estoppel against said attesting witness. It has been held by the Privy Council in Pandurangkrishanji v. M. Thukaram and others, AIR 1922 PC 20 that attestattion does not work estoppel under section 115 of the Evidence Act. Attestation of a deed by itself estops a man from denying nothing whatsoever excepting that he has witnessed the execution of the deed. It conveys, neither directly nor by implication any knowledge of the contents of the documents 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. The same view has been taken by our own Hon'ble High Court in case Sri-raj Ud-Din v. Mr. Rahiman and others, AIR 1938 Lah. 978 that non parties to transaction are not bound by it even if they are relatives of transferor and have not protected against it or attested the deed as a marginal witness. So it does not work as estoppel against them. The attesting witness signing the document, where there is no proof of his knowledge of their contents nor is he consenting party to transactions embodied therein. Onus lies on the persons who rely on documents to prove such knowledge and consent. Here, in this case, plaintiffs/appellants Ramesh Chander and Sneh Lata failed to prove on record that Budha Singh defendant had knowledge of the contents of the sale deed Ex. P.2, which he has simply attested as marginal witness without any such specific proof or knowledge of the contents of this sale deed Ex. P.2. Budha Singh who was only marginal attesting witness of this sale deed Ex. P.2 cannot be held bound by the contents of this sale deed."

4. There are concurrent findings of facts that Budha Singh is a marginal witness on the sale deed Ex. P.2 dated 19.7.1990. However, merely on the basis of being marginal witness, defendant-respondent canot be held bound by the convenants or recitals made in the sale deeds. Such sale deeds can be evidence of due execution and defendant-respondent Budha Singh who have signed the same as an attesting witness could prove that fact but he cannot be held bound by its contents. In the case of Chandrakantaben v. Vadilal Bapalal Modi, 1989(2) RRR 408 (SC) : AIR 1989 SC 1269, their Lordships of the Supreme Court have held that an attesting witness of a document is not presumed to be aware of its contents. The observations of their Lordships in this regard reads as under :

"Reliance has been placed on the attestation of Bapalal, the father of the executants. Two days earlier i.e. on 22.10.1954 he had executed a release deed, Ext. 222 giving up his right in the family properties for a sum of money named therein. He was already staying in Vrindavan for sometime past and proposed to spend rest of his life there. The release deed however, did not contain any list of properties and the document, therefore, is not of any help to either side. So far the agreement Ext. 167 is concerned, it has not been stated by anybody that Bapalal went through its contents or that somebody read the same to him before he attested it. There is no presumption that an attesting witness of a document must be assumed to be aware of its contents. What is significant, however, is that it was executed in 1954 when the defendant No. 6 was in adverse possession to the exclusion of defendant No. 1 and the other members of the family, and Jayantilal did not join the document and his brothers chose to get the signature of his minor son." (emphasis added)

Similar principles were laid down by the Privy Council in Pandurang's case (supra) to hold that the attestation by a witness does not work as an estoppel against him. He can always deny its contents but may not be able to deny its execution. The views of the Privy Council reads as under :

"And then further issue is raised as to whether he attested with knowledge and consented to the transfer. Before their Lordships consider the circumstances in which that attestation took place, they think it is desirable to emphasize once more that attestation or a deed by itself estops a man denying nothing what ever excepting that he has witnessed the execution of the deed. It conveys, neither directly nor 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. Jagat Kishore Acharya Chowdhuri, AIR 1916 PC 110 that an attestation may take place in circumstances which would show that the witness did in fact know of the contents of the document but no such knowledge ought to be inferred from the mere fact of the attestation." (emphasis added)

5. In view of the principles laid down by the Supreme Court as well as by the Privy Council the argument raised by Mr. Mahajan is devoid of merit and is thus liable to be rejected. The view taken by the Courts below is correct on facts and law. Therefore, the instant appeal is liable to be dismissed.
For the reasons recorded above, this appeal fails and same is dismissed.

Appeal dismissed.

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