JUDGMENT :- This is a defendants second appeal arising out of a suit filed by the plaintiff for specific performance of a contract of sale dated 1-3-1964 and for possession of the plots involved therein. A claim was also made for the recovery of Rs. 300/- as damages and for pendente lite and future damages at the rate of Rs. 100/- per month. 2. The plaintiffs case was that he was a Bhumidhar in possession of the land in dispute measuring 2 Bighas 18 Biswas and 10 Biswansis situated in village Kalal Kheria, District Agra. He was in urgent need of Rs. 3,000/- in Dec. 1963 and had requested the defendants for an advance on the security of his bhumidhari plots. The defendants agreed to advance the loan but insisted that the plaintiff shall execute a sale deed instead of a mortgage deed with respect to the above plots. The defendants also agreed to execute an agreement to reconvey the property to the plaintiff on payment of Rs. 2,900/-. Accordingly the plaintiff executed the sale deed dated Dec. 6, 1963 and the defendants executed an agreement for reconveying the property to the plaintiff on 1st of March, 1964. Under the terms of agreement for reconveyance the defendants were to sell the land in suit for a sum of Rs. 2,900/- out of which they had received Rs. 100/- as advance and the balance of Rs. 2,800/- they would receive at the time of presentation of the sale deed for registration, the defendants were to reconvey the land in suit whenever required to do so by the plaintiff within a period of 5 years from the date of the agreement. In case the plaintiff failed to get the sale deed executed within the said period of 5 years the amount of advance would stand forfeited and he would not be entitled to get back the property. If, however, the defendants failed to execute the sale deed then the plaintiff would be entitled to get it executed through the Court. The said agreement was registered on 9-6-1964. The plaintiffs case was that the defendants did not agree to reconvey the property as desired by the plaintiff in the month of April and May, 1968. Hence the suit. 3. The defendants contested the suit. The said agreement was registered on 9-6-1964. The plaintiffs case was that the defendants did not agree to reconvey the property as desired by the plaintiff in the month of April and May, 1968. Hence the suit. 3. The defendants contested the suit. They denied the allegations and asserted that since the plaintiff needed the money, he had sold the plots in question for valuable consideration. The defendants did not agree nor did they execute any agreement of reconveyance on 1-3-1964 in favour of the plaintiff. The plaintiff has forged the thumb impression of the defendants on a fictitious document. The defendants also did not receive the sum of Rs. 100/-as advance under said agreement. It was pleaded in the alternative that the alleged agreement being without consideration was illegal and not enforceable in law. The plaintiff was, therefore, not entitled to any decree for specific performance of the contract nor for damages. 4. The Trial Court on a consideration of the record and the circumstances of the case decreed the plaintiffs suit for specific performance of the agreement of reconveyance dated 1st of March, 1964. The Trial Court directed the delivery of possession to the plaintiff and also decreed Rs. 300/- as damages besides Rs. 100/- per month as damages payable on 1-3-1969, till the date of delivery of possession. The lower appellate court has dismissed, the appeal of the defendant and confirmed the decree passed by the Trial Court. Hence this Second Appeal. 5. I have heard the learned Counsel for the parties at considerable length and have also scrutinised the evidence on record. Counsel for the appellant submitted that the deed of reconveyance dated 1st of March 1964 has not been proved in accordance with law in as much as no attesting witness has been produced in proof of the signature of the executant. He has argued that mere execution of agreement of re-conveyance on 9th of June 1964 does not establish the execution of the same by the plaintiff. (sic) In support of his submission he has also relied upon some cases which I shall deal with hereinafter. 6. I have carefully scrutinised the deed of re-conveyance dated 1st of March 1964. It is duly a registered document. The registration was effected on 9th June 1964. The document has been thumb marked by Nawal Singh, Defendant appellant and Ram Swaroop. 6. I have carefully scrutinised the deed of re-conveyance dated 1st of March 1964. It is duly a registered document. The registration was effected on 9th June 1964. The document has been thumb marked by Nawal Singh, Defendant appellant and Ram Swaroop. It has also been attested by Bhopat S/o. Shri Mulay and Tunda S/o. Chunni. both of whom have thumb marked the document. Both the Court s below after scrutinising the evidence on the record have come to the conclusion that the deed of re-conveyance was thumb marked by the executants. It is true that Nawal Singh had denied the execution of the document, but on a fair reading of the statement of Panchiya (P.W. 2) who is an illiterate villager and also the statement of Man Mohan (P.W. 1) scribe of the document there can be no doubt that the deed of re-conveyance was executed by Nawal Singh in their presence. I am not inclined to agree with the submission of the appellants counsel to the contrary. In my opinion the findings recorded by the Court below that the said document dated 1st of March 1964 was executed by Nawal Singh and Ram Swaroop has to be accepted. I do not find any illegality or perversity in this finding to set it aside in the exercise of second appellate jurisdiction. The Plea of the defendant that he did not execute the deed of re-conveyance is a false one and has been rightly rejected by the Court below. 7. It is obvious from the Perusal of the document that the deed of the reconveyance which was registered on 9-6-1964 was attested by the two witnesses Bhopat and Tunda. Neither of these witnesses have been produced. The question of law raised by the appellants counsel referred to above is: whether it was necessary to produce these attesting witnesses in order to prove the execution of the said document by Nawal Singh. 8. Neither of these witnesses have been produced. The question of law raised by the appellants counsel referred to above is: whether it was necessary to produce these attesting witnesses in order to prove the execution of the said document by Nawal Singh. 8. Reference is made in this Connection to the definition of the word "Attestation" as contained in Section 3 of the Transfer of Property Act which is to the following effect; "attested", in relation to an instrument, means and 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 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." 8A. Relying upon the definition it is urged that at least one attesting witness should have been produced to say that he had seen the executant sign or affix his mark to the instrument. It is argued trial he must specifically point out the mark and say that this is the mark which has been made by the executant. In support of this argument further reliance is placed on a Division Bench decision reported in AIR 1928 All 303 Salaik Chand v. Mst. Tamiz Bano, where it has been observed by Sulaiman, J. as follows:- "The execution of a document cannot be deemed proved as required by the Evidence Act merely because it is proved in the sense of the definition of proved. That definition of the word proved must be read along with S.67 of the Act. That section requires that there must be specific evidence that the signature purporting to be that of the executant is in the handwriting of the executant. Until this is proved, the Court cannot proceed to consider whether execution is proved. In other words. Section 67 makes proof of execution of a document something mare difficult than proof of matter other than the execution of a document." 9. Until this is proved, the Court cannot proceed to consider whether execution is proved. In other words. Section 67 makes proof of execution of a document something mare difficult than proof of matter other than the execution of a document." 9. The aforesaid Division Bench case has been explained later on by Justice Bennett in Riazul Nisa v. Puran Chand (AIR 1944 Oudh 40). While considering the question in hand Justice Bennett has observed as follows:- "Because a witness is unable to point to the signature on a document of the person whose signature he purports to have attested it does not necessarily follow that he has failed to prove that signature within the meaning of Ss.67 and 68. According to the definition of "attested" in S.3, T.P. Act. it is only necessary for the persons attesting to have seen the other person sign or affix his mark on the instrument in his presence, or to have received from the executant a personal acknowledgment of his signature or mark. If either of these conditions is satisfied then there is valid attestation, and there is nothing in the Evidence Act which indicates that it is necessary for the attesting person in order to prove execution to point to the signature or mark made by the executant. That this is not necessary is clear from the fact that a person can attest merely on receiving acknowledgment from the executant of his signature or mark. Such an attesting witness is competent to prove execution as well as any other attesting witness, though he might not be able to point to the signature or mark of the executant. The definition of "proved" in the Evidence Act applies to such cases." 10. Judging in the light of the law as explained above, I have scrutinised the evidence on the record. Apart from the finding of the Trial Court which I have endorsed above, I may also point out that Man Mohan (P.W. 1) the scribe of the document has stated that in agreement Ex.1 was written in his hand and it was executed by Nawal Singh and Ram Swarup appellant. He further stated that he obtained the thumb mark of the parties on the said document. He also testified that the said agreement was got registered in his presence and the executants were present at that time. He further stated that he obtained the thumb mark of the parties on the said document. He also testified that the said agreement was got registered in his presence and the executants were present at that time. He further deposed that the draft of the agreement was prepared according to the dictation of the appellant and that after it was scribed it was read over to them. In the face of this specific statement I fail to understand how it can be argued that the thumb marks of the executant on the agreement have been proved merely because the witnesses did not specifically point to the said thumb impression on the document. In my opinion therefore, the execution of the deed of reconveyance has been satisfactorily explained by the plaintiff and his witnesses. 11. The Counsel for the respondent has argued that the deed of re-conveyance does not require attestation at all, and therefore, it is not necessary to produce the attesting witnesses for proving the same. In this connection he has referred to various legislations in order to point out that there are some documents which require registration others require attestation and there are yet others which require both attestation and registration. He has referred to Section 59 of the T. P. Act in connection with mortgage and has pointed out that a mortgage could be affected only by a registered instrument signed by a mortgagor and attested by at least two witnesses when the principal money secured is Rs. 100/- or upwards. My attention has also been drawn to Section 123 of the Transfer of Property Act in connection with a gift of immoveable property. In this section such transfer can be affected by a registered instrument signed by a donor and attested by at least two witnesses. Section 63(c) of the Succession Act has also been referred and it has been brought to my notice that in the case of execution of a Will it merely requires attestation by two witnesses. No registration is necessary. Section 54 of the Transfer of Property Act has thereafter been placed before me to explain that in the case of a sale of immoveable property of the value of one hundred rupees and upward, the same can be effected only by a registered instrument. 12. No registration is necessary. Section 54 of the Transfer of Property Act has thereafter been placed before me to explain that in the case of a sale of immoveable property of the value of one hundred rupees and upward, the same can be effected only by a registered instrument. 12. Thereafter reliance has been placed on the definition of a contract for sale, which runs as under: "A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property." 13. Learned Counsel submits that the deed of re-conveyance is merely a contract for sale of immoveable property. He points out the difference between a contract for sale and contract of sale by making a reference to the Division Bench decision of this Court reported in AIR 1950 All 632 , Sahadeo Singh v. Kuber Nath Lal. It has been observed therein as follows (at p. 635) : "There is well understood distinction between a contract to sell or for sale. The former is an executed contract and the later is an executory contract Sale creates a jus in rem as it passes ownership immediately when it has been executed while a contract to sell is jus ad rem, for it only creates an obligation attached to the ownership of property not amounting to an interest therein....... The criterion to decide whether there is a sale or merely a contract for sale is whether another deed would be required to pass the title or ownership. Under the Transfer of Property Act there must be deed transferring ownership of immovable property which is not in the vendors possession. If there is only a contract for sale, no ownership would be transferred unless another deed for sale is executed. A contract for sale simply gives a right to the contractee to a deed of sale." 14. Having regard to the enunciation of the law and the circumstances stated above it is clear that a deed of reconveyance can be safely termed as a contract for sale. It does not create any interest in the property and requires execution of another document for transfer of title. 15. Having regard to the enunciation of the law and the circumstances stated above it is clear that a deed of reconveyance can be safely termed as a contract for sale. It does not create any interest in the property and requires execution of another document for transfer of title. 15. In that view of the matter the deed of reconveyance would not fall within the meaning of mischief of S.17 (1) (b) or (c) of the Registration Act and as such does not require to be registered. Neither would such a document require attestation. Therefore, S.68 of the Evidence Act would not be applicable to such a document, since it does not require to be attested it is true that in the instant case the document has been registered as well as attested but when these formalities are not required by law to be performed in order to render the said document a valid document, registration and attestation of such a deed can only be considered to be a surplusage. In this situation non-production of attesting witness to prove the execution of the deed of reconveyance cannot be fatal and will not entitle the court to discard the evidence as not proved in accordance with law. The single Judge decision relied upon by the appellants counsel and reported in AIR 1980 All 395 , Ram Ratan Misra v. Smt. Bittan Kaur is not applicable to the facts of the present case. That was a case in which the document was required by law to be attested. In those circumstances it was held by this Court that the document which is required by law to be attested should be proved by one of the attesting witnesses. "The contention that the plaintiff was certain that the attesting witness had been won over and would not give evidence in her favour is not a sufficient ground for the consideration of other evidence in proof of the execution of the document." 16. On the other hand the citation relied upon by the respondents counsel in AIR 1966 All 515 , Ram Kishore v. Ambika Prasad it was held by late Justice S.S. Dhavan. J. that : "If a document is not required to be attested but the parties get it attested by witnesses this superfluous act does not attract the provisions of Section 68." 17. I am in respectful agreement with the aforesaid view. J. that : "If a document is not required to be attested but the parties get it attested by witnesses this superfluous act does not attract the provisions of Section 68." 17. I am in respectful agreement with the aforesaid view. This view is further supported by S.72 of the Evidence Act concerning the proof of documents not required by law to be attested. Sec.72 of the Evidence Act is to the following effect : "An attested document not require by law to be attested may be proved as if it was unattested." 18. In this view of the matter, I am of the opinion that the evidence of the plaintiff and that of the scribe of the deed of the reconveyance was sufficient in law to prove the execution of the deed in question by the defendants. Of course it is always open to a Court to consider this evidence and to come to a Conclusion that the same was not convincing enough to prove execution. It is also open to the Court below as has been done in the present case to accept that evidence as sufficient proof and to hold that the execution of the deed of reconveyance has been satisfactorily established in law. 19. For the reasons given above, I agree with the findings recorded by the subordinate courts and I dismiss this appeal with costs throughout. Appeal dismissed.