VAMAN RAO, J. ( 1 ) THIS second appeal is directed against the judgment rendered by the I Additional district Judge, Krishna District at machilipatnam, dated 12-10-1987 in A. S. No. 69 of 1981 under which the judgment and decree of the Court of the Principal district Munsiff, Avanigadda, dated 31-3-1981 passed in O. S. No. 107 of 1978 decreeing the suit of the plaintiff for declaration of title and possession has been confirmed. ( 2 ) THE appellant herein is defendant no. 3, who died during pendency of the appeal and appellants 2 to 4 have been brought on record as his legal representatives. Respondent No. l herein is the plaintiff, respondent No. 2 herein is defendant No. 4 and respondent No. 3 herein is defendant No. 2 in the suit. The first appellant in A. S. No. 69 of 1981 on the file of the I Additional District Court, who was defendant No. l in the suit, has not been impleaded in this appeal stating that he was not a necessary party. The plaintiff filed the suit for declaration and possession of the plaint schedule property and for recovery of past mesne profits at the rate of Rs. 25/ per month and future mesne profits at the same rate. ( 3 ) THE case of the plaintiff is that late pindiganti Subba Rao, the younger brother of the first defendant, was the absolute owner of the plaint schedule properties consisting of house-site measuring 99 sq. yards with a tiled house and 2. 9 2/4 sq. yards. The said Subba Rao died intestate on 8-4-1964. The mother of the said Subba rao predeceased him. Hence his wife anasuyamma succeeded the entire property including the plaint schedule properties under the provisions of Hindu succession Act and took possession of the same as absolute owner. The said anasuyamma adopted the plaintiff as her son on 2-3-1972 with all legal formalities. A registered adoption deed was also executed in token of the adoption by Anasuyamma and the natural mother and father of the plaintiff on 2-3-1972 itself. Subsequently, on 12-3-1972 the said Anasuyamma also executed a registered gift deed in favour of the plaintiff in respect of her half share in the plaint schedule property and in 39 cents of land bearing R. S. No. 147/4 of Challapalli village and put the plaintiff in possession of the same on the same day. Subsequently, on 12-3-1972 the said Anasuyamma also executed a registered gift deed in favour of the plaintiff in respect of her half share in the plaint schedule property and in 39 cents of land bearing R. S. No. 147/4 of Challapalli village and put the plaintiff in possession of the same on the same day. The gift deed was duly accepted by the plaintiff. Since then the plaintiff has been in exclusive possession and enjoyment of the suit property. The plaintiff leased out the plaint schedule property to one Pital Sambasiva rao and he has been living with his natural parents at Challapalli. It is stated that even if the adoption for any reason, is not valid and legal, the plaintiff and defendant No. 4 jointly became absolute owners of the properties and they are jointly entitled for possession of the same. Defendants have no manner of rights in the property. Defendants high handedly got vacated the plaintiff from the plaint schedule property forcibly evicting his tenant in middle of february, 1978 from the tenant and occupied the same. When questioned, the defendants did not give any satisfactory reply. Hence a police complaint was lodged, but of no avail. Hence a registered notice dated 14-3-1978 was issued to the defendants demanding delivery of possession. The defendants gave a false reply setting up the Will deed said to have been executed by Pindiganti Subba Rao in favour of the first defendant. Hence the suit. ( 4 ) DEFENDANTS 1 to 3 filed a written statement contesting the suit. It is admitted that late Pindiganti Subba Rao, younger brother of the first defendant, was the absolute owner of the plaint schedule properties. It is, however, denied that the said Subba Rao died intestate and issueless. It is stated that Subba Rao executed a Will deed (Ex. B-1) in favour of the first defendant bequeathing his property viz. , 39 cents of land and house-site on 29-1-1961. The said Subba Rao died on 27-4-1961. On his death, the first defendant became the owner of the plaint schedule properties It is denied that the mother of Subba Rao predeceased her son. She died after the death of Subba Rao. It is denied that the wife of Subba Rao viz. , Anasuyamma, the second plaintiff in the suit succeeded to the entire properties of late Subba Rao including the suit properties. She died after the death of Subba Rao. It is denied that the wife of Subba Rao viz. , Anasuyamma, the second plaintiff in the suit succeeded to the entire properties of late Subba Rao including the suit properties. It is denied that Anasuyamma, second plaintiff herein, who is the wife of late Subba Rao, adopted the first plaintiff and that in token of the said adoption, executed a registered adoption deed on 2-3-1972. It is stated that the adoption was not legal as the first plaintiff had crossed the prescribed age for adoption under law as on the date of adoption. It is thus pleaded that the adoption is illegal and void and cannot be recognized in law. It is also denied that the adoptive mother (Anasuyamma, the second plaintiff) executed a registered gift deed in favour of the first plaintiff in respect of her half share in the plaint schedule property and 39 cents of land in R. S. No. 147/4 of challapally village and that the first plaintiff was in possession of the same and that the gift deed was accepted by the first plaintiff. It is asserted that the first defendant has been in possession and enjoyment of the suit properties from the date of death of Subba Rao. The plaintiff no. 1 and his alleged adoptive mother have nothing to do with the plaint schedule properties. It is stated that the second plaintiff left her husband Subba Rao three years prior to his death and went away to bhimadolu and other places and led immoral life there and did not take care of her husband, who was not doing well. The second plaintiff did not even attend to the death ceremonies of her husband. The first defendant alone performed the obsequies and ceremonies with his own funds. It is denied that the first plaintiff leased out the suit schedule properties to Pital Sambasiva rao. Payment of house-tax by the first plaintiff is also denied. The question of defendants 1 to 3 occupying the suit schedule properties does not arise, inasmuch as they were already in possession of the same. ( 5 ) IT may be mentioned here that subsequently, the plaintiff amended the plaint and sought alternative relief of possession. Defendant No. 3 filed additional written statement, which was adopted by defendants 2 and 3. ( 5 ) IT may be mentioned here that subsequently, the plaintiff amended the plaint and sought alternative relief of possession. Defendant No. 3 filed additional written statement, which was adopted by defendants 2 and 3. In the additional written statement the averments made in the amended plaint that even if the adoption of the plaintiff was not legal and valid, plaintiffs 1 and 2 jointly became absolute owners of the plaint schedule properties and are jointly entitled for possession of the same, was disputed. It is stated that the plaintiffs never became the owners of the plaint schedule properties and they are not entitled to possession of the same. It may be pointed out that under orders dated 15-11-1983 passed during pendency of the first appeal before the learned Additional District Judge in LA. Nos. 2084 of 1983 and 2085 of 1983, the 4th defendant in the suit (Anasuyamma) has been transposed as the second plaintiff in the suit. ( 6 ) THE trial Court framed appropriate issues and on the basis of evidence adduced in the case, the trial Court held that the execution of the will deed Ex. B-1 by late subba Rao in favour of the first defendant is not proved, and that the adoption of the first plaintiff by the 4th defendant, who was subsequently transposed as the second plaintiff, was not legal, inasmuch as the first plaintiff adoptee has crossed the maximum age prescribed for adoption. However, the trial Court decreed the suit holding that the first plaintiff had acquired title to the suit schedule properties under the gift deed and also by adverse possession, but dismissed the relief for past and future mesne profits. ( 7 ) DEFENDANTS 1 and 3 filed the first appeal before the I Additional District judge, Krishna District at Machilipatnam in a. S. No. 69 of 1991 impleading the plaintiff no. 1 Pindiganti Venkata Subba Rao as the 1st respondent, the second plaintiff anasuyamma as respondent No. 2 and defendant No. 2 P. Purnachandra Rao as the third respondent. ( 8 ) THE first appellate Court framed appropriate points for consideration. (1) Whether the will Ex. B-1, dated 28-1-1961 is true and valid? (2) Whether the adoption of the first plaintiff by the second plaintiff is valid under law? (3) Whether the gift deed Ex. A-4 executed by the second plaintiff- in favour of first plaintiff is valid? ( 8 ) THE first appellate Court framed appropriate points for consideration. (1) Whether the will Ex. B-1, dated 28-1-1961 is true and valid? (2) Whether the adoption of the first plaintiff by the second plaintiff is valid under law? (3) Whether the gift deed Ex. A-4 executed by the second plaintiff- in favour of first plaintiff is valid? (4) Whether the plaintiffs are entitled for declaration and possession as prayed for?the first appellate Court held that the will ex. B-1 has not been proved. It held that the factum of adoption was true, but the same was invalid under law. However, the first appellate Court held that the first plaintiff acquired title to the suit properties under the gift deed Ex. A-4. It also held that the first plaintiff succeeded in showing that he acquired title at any rate by adverse possession for more than 12 years. It held that though no specific plea of acquisition by adverse possession was taken as the question of adverse possession was raised in the trial Court and sufficient evidence has been adduced, the finding on the question of adverse possession is justified. On this basis, the appeal was dismissed and the judgment and decree of the trial Court were confirmed. It is this judgment, which is now challenged in this second appeal. ( 9 ) IT may be mentioned that the plea of execution of will Ex. B-1 by late Subba Rao in favour of the first defendant has been negatived by both the Courts below. ( 10 ) SRI T. Veerabhadraiah, learned counsel for the appellants challenges these judgments, firstly by contending that the finding in respect of execution of the will ex. B-1 by late Subba Rao is perverse and has been rendered without consideration of the evidence on record and as such, it is liable to be reversed in second appeal. The second contention raised by the learned counsel for the appellants is that the gift deed Ex. A-4 has not been proved by calling at least one attesting witness and that in view of the provisions of Section 68 of the evidence Act, it must be held that the document has not been proved in accordance with law. The second contention raised by the learned counsel for the appellants is that the gift deed Ex. A-4 has not been proved by calling at least one attesting witness and that in view of the provisions of Section 68 of the evidence Act, it must be held that the document has not been proved in accordance with law. The third contention is that the gift deed, even if it is held to be proved, does not confer any title on the first plaintiff, inasmuch as the gift was made specifically on the ground that the first plaintiff was the adopted son of the donor and inasmuch as, the adoption has been held to be invalid, the conveyance under the gift also fails. ( 11 ) IN regard to the first contention about the execution of the will Ex. B-1 by late subba Rao being perverse, both the Courts below found that the first defendant has not succeeded in proving the execution of the will Ex. B-1. Both the Courts below thoroughly examined the oral evidence on behalf of the first defendant in respect of the execution of the will Ex. B-1. D. W. 4 is said to be attestor of the will Ex. B-1. Defendant no. 1 examined himself as D. W. 2, who also deposed that on the basis of the will he has been in possession of the suit schedule properties. D. W. 3 is said to be the person who drafted the will Ex. B-1. The judgment of the first appellate Court would disclose that the evidence in respect of the execution of the will by late Subba Rao has not been accepted taking into consideration the following circumstances. (1) The Will Ex. B-1 is said to have been executed on 29-1-1961, but never saw the light of the day till it was filed in the Court on 1-4-1980. (2) In fact for the first time, a mention of the will was made in the reply issued on behalf of the first defendant to the suit notice Ex. A-8, dated 22-3-1978 issued on behalf of the first plaintiff. Thus, there was no mention of the will any where for 17 years after the alleged execution. (2) In fact for the first time, a mention of the will was made in the reply issued on behalf of the first defendant to the suit notice Ex. A-8, dated 22-3-1978 issued on behalf of the first plaintiff. Thus, there was no mention of the will any where for 17 years after the alleged execution. (3) As admitted during cross examination of the first defendant {d. W. 2), defendants 1 and 3 did not take any steps in pursuance of the said will either for mutation of their names or for any other purposes. (4) Though there is a specific averment in the plaint that the will mentioned in the reply sent on behalf of the defendants to the notice issued on behalf of the first plaintiff, was a forged one, it was not filed by the defendants with their written statement on 31-7-1978. It was filed in the Court for the first time on 1-4-80 during the evidence of the first defendant (D. W. 1 ). (5) Though defendants 1 to 3 claimed to have obtained possession of the properties on the basis of the will ex. B-1, there was no evidence that they dealt with the properties as their own by way of payment of municipal property tax etc. , and the first defendant, who is the father of the 3rd defendant, during his evidence as D. W. 2 admitted that he did not pay any tax so far in respect of the land of his brother. Defendant No. 1 as D. W. 2 stated that Subba Rao was an illiterate person. But the Court below has referred to an admitted document, registration extract of the sale deed ex. A-53, dated 15-2-1963 executed by a third party, where late Subba rao attested the document and signed. When confronted with this evidence during his further cross- examination D. W. 2 admitted that late Subba Rao was able to sign and that due to heart trouble he could not sign and affixed his thumb impression on the will Ex. B-1. Apart from these features, the first appellate court discussed all the contentions in support of execution of the will Ex. B-1 and came to a firm conclusion as a question of fact that the first defendant did not succeed in proving the execution of the will Ex. B-1. B-1. Apart from these features, the first appellate court discussed all the contentions in support of execution of the will Ex. B-1 and came to a firm conclusion as a question of fact that the first defendant did not succeed in proving the execution of the will Ex. B-1. ( 12 ) THE first appellate Court also found that there were suspicious circumstances under which the alleged will Ex. B-1 was brought into existence. He also relied on the contradictory versions appearing in the evidence of D. Ws. 2,3 and 4 in regard to the execution of the said document. By no stretch of imagination can this finding be described as perverse or in disregard of evidence on record. Therefore, this contention has no force. ( 13 ) THE second contention of the senior counsel, Mr. Veerabadraiah appearing for the appellant is that the gift deed - Ex. A-4 relied upon by the plaintiff has not been proved in accordance with Section 68 of the evidence Act inasmuch as an attesting witness to the said document has not been called as a witness to prove the execution. To appreciate the arguments on this aspect, it would be convenient to extract Section 68 of the Evidence Act. "68. Proof of execution of document required by law to be attested: 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 be 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 an attesting witness in proof of the execution of any, document not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, XVI of 1908 unless its execution by the person by whom it purports to have been executed is specifically denied. " ( 14 ) THE contention of the learned counsel for the app ellant is that the trial court erred in holding that there was no specific denial of the execution of this gift deed and on that ground the trial Court erroneously held that there was no need to call an attesting witness to prove the gift deed. " ( 14 ) THE contention of the learned counsel for the app ellant is that the trial court erred in holding that there was no specific denial of the execution of this gift deed and on that ground the trial Court erroneously held that there was no need to call an attesting witness to prove the gift deed. It is obvious that the gift in view of section 123 of the Transfer of Property Act, requires to be made by a registered document and attested by at least two witnesses and as such Section 68 of the evidence Act is applicable to such documents. There appears to be some misappreciation of the scope and intent of section 68 of the Evidence Act by the Courts below. ( 15 ) AS far as the defendants are concerned, para 4 of the written statement of defendant No. 3 discloses that the execution of the gift deed has been specifically denied by them. But the denial by the defendants is of no significance. A reading of Section 68 of the Evidence Act would reveal that if the document is required by law to be attested (as is the case in respect of the gift deed), it cannot be used in evidence until it has been proved by calling at least one attesting witness. The proviso to Section 68 of the Evidence Act contemplates that the need to call an attesting witness to prove such a document stands dispensed with if the document in question has been registered in accordance with the provisions of the Indian registration Act. But, this exemption from calling an attesting witness is not available in the case where the execution of the document by the person by whom it purports to have been executed has been specifically denied. ( 16 ) THE learned additional District Judge who heard the first appeal came to the conclusion that in this case the exemption from calling at least one attesting witness in proof of the gift deed is available on the ground that its execution has not been specifically denied by the defendants. On facts, this is an erroneous observation inasmuch as, as noted above as far as defendants 1 to 3 are concerned, there is a specific denial by them in their written statement of the execution of the gift deed by defendant No. 4. On facts, this is an erroneous observation inasmuch as, as noted above as far as defendants 1 to 3 are concerned, there is a specific denial by them in their written statement of the execution of the gift deed by defendant No. 4. The learned Additional district Judge failed to notice that what is relevant under proviso to Section 68 of the evidence Act is the denial by the executant of the document not by the defendants in the suit as is obvious from the words in the proviso unless its execution by the person by whom it purports to have been executed is specifically denied". In this case, the gift deed-Ex. A-4 is not purported to have been executed by the defendants and as such whether they admitted its execution or denied it is immaterial for the applicability of proviso to Section 68 of the Evidence Act. ( 17 ) IN fact, the whole controversy and discussion on this aspect appears to be completely off the mark. In this case, the plaintiff claims title to the property to the extent of defendant No. 4 s share on the basis of the gift deed Ex. A-4 executed by defendant No. 4. The defendant No. 4 was very much alive as on the date when the gift deed fell for consideration. In fact she has been examined as P. W. 3 and categorically admitted the execution of ex. A-4. When the executant admits execution of the document conveying certain property, it is not open to third parties to challenge the said execution unless the conveyance is challenged on the ground that the executant has no power to convey the property in question. However, where the controversy as to execution of certain document arises after the death of the executant or where the executant is not available either to admit or to deny its execution, the third parties may have a right to question the execution of the document on the ground that in the absence of the questioned document certain rights would accrue to them in the said property. ( 18 ) THE admission of its execution by the person who had executed it shall be sufficient proof of its execution as against him even though the document is required to be attested and has been attested in view of Section 70 of the Evidence Act. ( 18 ) THE admission of its execution by the person who had executed it shall be sufficient proof of its execution as against him even though the document is required to be attested and has been attested in view of Section 70 of the Evidence Act. In this case, inasmuch as D. W. 4 herself has admitted the execution of Ex. A-4, gift deed, it must be held to have been sufficiently proved. ( 19 ) THUS, considering the facts of the case, the execution of the gift deed Ex. A-4 by defendant No. 4, subsequently transposed as P. W. 2, in favour of plaintiff no. 1 cannot be a matter of dispute at all. ( 20 ) AT any rate, the learned first appellate Judge has discussed the evidence with regard to the execution of Ex. A-4 by defendant No. 4 particularly the evidence of p. W. 7 and held that execution of Ex. A-4 has been proved even though no attesting witness is called on the ground that proviso to Section 68 of the Evidence Act is attracted. In view of this, the contention of the learned Counsel for the appellant sri Veerabadriah cannot be countenanced, ( 21 ) THUS, taking any view of the matter, there is no manner of doubt that adjudication of disputes in this case has to proceed on the basis that defendant No. 4, subsequently transposed as plaintiff No. 2, has executed the gift deed in favour of the plaintiff. ( 22 ) THE next contention of the learned counsel for the appellant Sri Veerabadraiah is that even if Ex. A-4 gift deed is assumed to have been executed by defendant No. 4 (transposed as plaintiff No. 2), it is invalid on the ground that conveyance of the property under the gift deed was specifically made on the ground that plaintiff No. l is her adopted son and inasmuch as both the Courts below held that the adoption is invalid, as a consequence the disposition under the gift deed shall also fail. The contention is that the designation of the donee under the gift deed as adopted son is not merely descriptive and that adoption is the reason for the execution of the gift deed ( 23 ) THE learned Counsel for the appellant relies on the judgments of a division Bench of this Court in the case of satyanarayanamnrthy vs. Ramamma and the judgment of the Supreme Court in the case of S. Panchaksharamma vs. Chinnabbayi. In both these cases, the disposition of the properties in question was under will, which came up for consideration after the death of the testator. In both the cases on facts, it was held that the disposition of the property in favour of legatee was on the ground that he was the adopted son of the testator and that adoption was the reason for making the disposition of the property and inasmuch as the adoption itself failed in both the cases, it was held that the disposition of the property and inasmuch as the adoption itself failed in both the cases, it was held that the disposition of the properties under the will deeds in question also failed. Thus, it was held that the disposition of the property under the will was conditional on the legatee being the adopted son of the testator. In the above cited judgment of this Court, it was held as follows:"the fundamental principle of construction of the terms of the will, just like any other document, is that the intention of the testator should be gathered from the language of the will and the surrounding circumstances. The question that falls to be decided in each case is whether the designation of a legatees as adopted son is descriptive of the person to take under the will, or whether the adoption is the reason or the motive or the condition of the gift. Though decided cases supply a guide and a correct perspective for construing a will, a decision necessarily turns upon the peculiar wording of a particular will and the circumstances surrounding the execution of the will. " ( 24 ) THE Supreme in the above cited case observed:"the question involved in this appeal is whether the disposition of the properties to the plaintiff is as a persona designate or by reason of his fulfilling a particular legal status, namely, the adopted son of the testator. " ( 24 ) THE Supreme in the above cited case observed:"the question involved in this appeal is whether the disposition of the properties to the plaintiff is as a persona designate or by reason of his fulfilling a particular legal status, namely, the adopted son of the testator. The question in such a case is really one of intention of the testator which must be ascertained from the language of the various clauses of the will and the surrounding circumstances of the execution of the will. " ( 25 ) AS stated in the above decisions, what is required to be seen is whether a particular conveyance under a document or disposition of property under a will in favour of a person was made solely for the reason that he was the adopted son of the executant of the document or whether the intention was to convey or bequeath the property irrespective of the fact of such adoption. Thus, the Courts are required to ascertain the intention of the executant of the document where the executant of the document is no more. It is obvious that such intention by necessity has to be ascertained from the recitals in the document and the surrounding circumstances. This is so because the executant of the document is not available to shed light on his or her intention. ( 26 ) BUT, in this case, the executant of the gift deed Ex. A-4 was very much alive at the relevant time and as already noted she was examined as P. W. 3 and affirmed conveyance under Ex. A-4 gift deed as is obvious from her deposition that "10 days later I relinquished my rights in schedule property and land in favour of P. W. 4 under ex. A-4". ( 27 ) NORMALLY, the disposition of the property under a will if it has been properly proved in accordance with law and conveyance of title under a gift deed if proved in accordance with law shall take effect. The person who seeks to challenge such disposition or conveyance on the ground that such conveyance or disposition was conditional on certain facts and the legatee or donee did not satisfy those conditions and as such the disposition or the conveyance fails lies on the person who seeks to challenge the disposition or conveyance. The person who seeks to challenge such disposition or conveyance on the ground that such conveyance or disposition was conditional on certain facts and the legatee or donee did not satisfy those conditions and as such the disposition or the conveyance fails lies on the person who seeks to challenge the disposition or conveyance. In this case, no evidence has been adduced on behalf of defendant No. 1 on this aspect. In fact, when the executant of ex. A-4 was examined as P. W. 3, it was not even suggested to her that the conveyance made by her was conditional on the donee being her adopted son. In fact, this question does not arise where the executant of the document was alive at the relevant time and had not take any steps for cancellation of the document or to nullify the conveyance. Thus; the conveyance of title under Ex. A-4 in this case by defendant No. 4 (transposed as plaintiff No. 2) in favour of plaintiff No. l cannot be questioned at all. ( 28 ) AT any rate, even from the recitals in the gift deed Ex. A-4, it is apparent that defendant No. 4 purports to have gifted the property in favour of plaintiff No. 1 due to love and affection. Thus, taking any view of the matter, the conveyance of the property in favour of plaintiff No. l under Ex. A-4 stands unaffected. The first appellate Court has also sought to justify the findings in favour of plaintiff No. l on the basis of perfection of his title by adverse possession. ( 29 ) IT is difficult to conceive how the plaintiff No1 can claim acquisition of title by adverse possession against defendant no. 4 the original owner when he is claiming title to it under the gift deed executed by her which she has not denied. There was no occasion for plaintiff No. l to claim possession adverse to defendant no. 4, who has been transposed as plaintiff no. 2. At any rate, in view of the finding on ex. A-4, there is no need to record any finding on the question of acquisition of title by adverse possession. ( 30 ) IN view of this, the judgment and decree of the first appellate Court declaring the plaintiff as the owner of the suit schedule properties and for possession has to be upheld. A-4, there is no need to record any finding on the question of acquisition of title by adverse possession. ( 30 ) IN view of this, the judgment and decree of the first appellate Court declaring the plaintiff as the owner of the suit schedule properties and for possession has to be upheld. ( 31 ) IN the result, the appeal is dismissed but under the circumstances without costs.