JUDGMENT B.P. Katakey, J. 1. The plaintiffs in Title Suit No. 117/1976 (renumbered as Title Suit No. 4/1979) have preferred this appeal challenging the judgment and decree dated 23.5.1988 (decree signed on 25.5.1988) passed by learned Assistant District Judge (now, Civil Judge), Barpeta, in Title Appeal No. 46/1986 whereby and where-under the appeal preferred by the defendants in the suit has been allowed by setting aside the judgment and decree dated 16.9.1986 passed by learned Munsiff No. 1, Barpeta in the suit. 2. The said Suit has been instituted by the plaintiffs against the predecessor-in-interest of the present respondent Nos. 1(a) to 1(g) and 2(a) to 2(j) as principal defendants and the present respondent Nos. 3 to 8 as proforma defendants praying for declaration of right, title and interest over a plot of land measuring 1 bigha 2 katha in Dag No. 1628 (new) 548 (old) of KP Patta No. 254(new) 91 (old); and 4 kathas 6 Lechas in Dag No. 1660 (new) 476 (old) in the same Patta; as well as in respect of 2 kathas 16 lechas in Dag No. 883 of KP Patta No. 57 (old) 368 (new); totaling land measuring 2 bighas 4 kathas 2 lechas (morefully described in schedule-Ka to the plaint), for confirmation of possession, for issuance of precept to the revenue authority for effecting mutation of the said land in favour of the plaintiffs as well as for perpetual prohibitory injunction, stating inter alia that Durga Malakar, the plaintiffs' grand-father (paternal uncle of plaintiffs' father), who was the owner of the said land executed a Will on 21st Aswin, 1365 (BS Year-1958 AD), which was probated after the death of Durga Malakar on 20.11.1973 and acquired title and thereafter, plaintiffs though filed an application for recording their names in the revenue record (mutation), the same was, however, dismissed due to some anomalies in the patta number, that the principal defendants though had no title and possession over the said land have obtained the mutation thereof without the knowledge of the plaintiffs and threatened to evict the plaintiffs from the land forcibly. The principal defendants contested the suit by filing the joint written statement denying the claim of the plaintiffs in the plaint and stating inter alia that Durga Malakar during his life time relinquished his title over the suit land in favour of his wife Gandhari by a registered deed of Gift on 25.5.1959, who in turn, sold the said land to one Hem Chandra Malakar by a registered deed of sale dated 29.1.1960 and delivered possession thereof. The further case of the defendants in the written statement is that Hem Chandra Malakar exchanged the said land with the land of the defendants' father situated at Pakka Mouza and relinquished the right over the suit land and some other land in favour of the defendants' father and thereafter, in the years 1960 the mutation was granted in the name of the defendants in respect of the suit land and since then they are possessing the said land. The defendants in the written statement further denied the plaintiffs' possession over the suit land. It is also the case of the defendants in the written statement that since the land has already been gifted by Durga Malakar during his life time by a registered deed of gift in favour of his wife, no title can be passed on to the plaintiffs by means of the Will allegedly executed by Durga Malakar in respect of the said land, he having no title over the said land after such deed of gift, even if the said Will was probated. 3. The learned trial Court on the basis of the pleadings and on hearing the learned Counsel for the parties framed the following issues: 1. Whether the Court has got pecuniary jurisdiction to try this Suit? 2. Whether proper Court fee have been paid? 3. Whether the suit is bad for nonjoinder of necessary parties? 4. Whether the plaintiff has got right, title and interest over the suit land? 5. Whether Gandhari, wife of Durga Malakar has saleable interest over the suit land to sell it to one Ham Kanta Malakar? 6. Whether the defendants have acquired valid title over the suit land by means of "exchange" as alleged in the written statement? 7. To what relief, if any the parties are entitled? 8. Whether the suit is barred by limitation? 4. 6. Whether the defendants have acquired valid title over the suit land by means of "exchange" as alleged in the written statement? 7. To what relief, if any the parties are entitled? 8. Whether the suit is barred by limitation? 4. The learned Munsiff on appreciation of the evidences on record, both oral and documentary, vide judgment dated 16.9.1986 decreed the suit of the plaintiffs by declaring the plaintiffs' title over the 'Ka' Schedule land by holding that Gandhari Malakar, the widow of Durga Malakar, after his death, had no saleable interest over the suit land, as the same has been Willed away by her husband and, therefore, the defendants cannot get any right by means of the registered deed of exchange executed by Gandhari Malakar, the Will having been probated. Being aggrieved, the defendants preferred Title Appeal No. 46/1986 before the learned Assistant District Judge (now, Civil Judge), Barpeta, which, however, has been allowed by the learned first appellate Court vide judgment dated 23.5.1988, by setting aside the judgment and decree passed by the learned trial Court in favour of the plaintiffs, by holding that the plaintiffs could not prove that the land which was the subject of the Will and the suit land are the same land as well as that by subsequent conduct of execution of gift deed, Durga Malakar has varied the Will. The said Court, however, has held that defendants/respondents could not prove the gift. The learned appellate Court, therefore, held that the plaintiffs' right, title and interest in respect of the suit land cannot be decreed. The learned lower appellate Court has also held that though the defendants have set up the case that the property was gifted to Gandhari by her husband during his life time, which was in turn, sold to Hem Chandra Malakar by a registered deed of sale and subsequently Hem Chandra exchanged the suit land with another land belonging to the predecessor-in-interest of the defendants by the registered deed of exchange, those have not been proved, though the certified copies of the registered gift deed and the registered sale deed as well as the original registered deed of exchange were filed in the suit. Hence, the present appeal. 5. Hence, the present appeal. 5. This Court initially vide order dated 22.11.1988 admitted the Second Appeal for hearing on the following substantial question of law: Whether the findings of the lower appellate Court are vitiated by erroneous interpretation and misreading of exhibits? 6. During pendency of the Second Appeal, an application under Order XLI, Rule 27 of CPC was filed by the defendants/respondents on 27.8.1996 praying for passing of an order for taking additional evidence to prove the certified copy of the Deed Gift executed by Durga Malakar in favour of his wife Gandhari, which was filed in Title Suit No. 117/1976, on the basis of which this Court passed the order on 28.8.1996 allowing such prayer and directing the learned Munsiff No. 1, Barpeta to record the additional evidence of both the parties to be adduced in regard to the said Gift Deed and to remit the same to this Court such additional evidence to be adduced by the parties. The order dated 28.8.1996 passed by this Court is reproduced below: 28.8.1996: An application under Order 41 Rule 27 of the Code of Civil Procedure has been filed to allow the Respondents/defendants to exhibit the certified copy of the deed of gift by Late Durga Malakar to his wife Gandhari which was filed in Title Suit No. 111/76 pending in the Court of the Munsiff No. 1 at Barpeta. Considering the ends of justice and that it is a vital document I allow this prayer. The office shall send back the case record of the Trial Court to the Munsiff No. 1 at Barpeta, who will record the evidence of both the parties with regard to the proving of the certified copy of the deed of gift and additional evidence, if any to be adduced by both the parties on this point. Both the parties shall appear before the learned Munsiff No. 1 at Barpeta on 30.9.1996 to receive further instruction. Necessary steps will be taken by the defendant to prove this certified copy as required by law. This matter shall be listed again after receipt of the Lower Court's records along with the additional evidence to be recorded by the learned Munsiff. 7. Necessary steps will be taken by the defendant to prove this certified copy as required by law. This matter shall be listed again after receipt of the Lower Court's records along with the additional evidence to be recorded by the learned Munsiff. 7. The records of the said Title Suit was accordingly sent back to the learned Munsiff, which was placed before the said Court on 13.12.1996, when another number has been allotted to the suit being Title Suit No. 12/1997 (which renumbering though was not required to be done). The learned Munsiff ultimately on 7.3.1998 recorded the deposition of two witnesses produced by the defendants/respondents in the matter of proving the said gift deed, who were duly cross-examined by the plaintiffs/appellants. The records of the said suit along with the deposition of the witnesses were thereafter, transmitted to this Court by the learned Munsiff by order dated 7.3.1998 and accordingly, the registry of this Court has received back the record along with the deposition of the said two witnesses. 8. A single bench of this Court heard the arguments of the learned Counsel for the parties on 23.7.1998 and delivered the judgment on 21.8.1998 dismissing the appeal filed by the plaintiffs/appellants by holding that they have failed to establish the title on the basis of the Will (Ext. 3) as rightly held by the learned first appellate Court. In the said judgment, however, the effect of the additional evidence adduced by the defendants/respondents pursuant to the aforesaid order dated 28.8.1996 have not been considered and discussed. 9. Being aggrieved, the plaintiffs/appellants approached the Apex Court in Civil Appeal No. 4813/2000, which has been allowed by the Apex Court vide order dated 30.11.2006 remitting the matter to this Court for reconsideration of the appeal afresh on merit, by setting aside the judgment and decree passed and by observing that the High Court did not consider the question of identification of the suit land in correct perspective in holding that the suit land as described in Schedule 'ka' did not tally with the land which was the subject matter of the Will. The Apex Court also observed that it is open to the High Court to formulate fresh substantial question/questions of law. 10. The Apex Court also observed that it is open to the High Court to formulate fresh substantial question/questions of law. 10. The appeal being placed before this Court on remand and upon hearing the learned Counsel for the parties as well as upon perusal of the materials available on record, the following substantial questions of law have been formulated vide order dated 2.9.2008: 1. Whether the finding of the learned first appellate Court that the suit property is not the part of the property covered by the Will is perverse, being contrary to the evidences on record? 2. Whether the learned first appellate Court was justified in holding that in the absence of any plea by the defendant in the written statement, the suit land was not the part of the land covered by the Will executed by Durga Malakar? 11. None of the parties, however, at that point of time drawn the attention of the Court to the order dated 28.8.1996, which has already been reproduced above, passed under Order XLI Rule 27 CPC allowing the parties to adduce evidence as regards the Gift Deed, on the basis of the application filed by the defendants/respondents before this Court and remitting the matter to the learned Court below for recording the additional evidence, which came to the notice of the Court while preparing for the judgment after conclusion of hearing of argument initially on 18.9.2000, which necessitates placing of the appeal again for hearing on 15.10.2008. The appeal, however, was adjourned till 20.11.2008 on the prayer of the learned Counsel for the parties, on which date keeping in view the evidences on record, more particularly the additional evidence adduced by the parties, following substantial questions of law have also been framed: 1. Whether the defendants/respondents could prove the Gift Deed (Ext. Cha) as required under the law; and 2. Whether the Will executed by Durga Malakar in favour of the plaintiffs has ceased to have any effect after he gifted the property to his wife Gandhari vide Ext. Cha? It appears from the order of the Apex Court dated 30.11.2006 that' the said fact about allowing the application of the defendants/respondents filed under Order XLI, Rule 27 of CPC for recording the additional evidence was also not brought to the notice of the Apex Court. 12. Mr. Cha? It appears from the order of the Apex Court dated 30.11.2006 that' the said fact about allowing the application of the defendants/respondents filed under Order XLI, Rule 27 of CPC for recording the additional evidence was also not brought to the notice of the Apex Court. 12. Mr. Goswami, learned senior counsel for the appellants, relating to the substantial questions of law formulated on 2.9.2008, has submitted that the defendants/respondents having not denied in the written statement filed in the suit that the suit property is covered by the Will (Ext. 30, executed by Durga Malakar, the learned first appellate Court was not right in holding that the suit property is not covered by the Will, more so when there was no issue framed in that regard. It has further been submitted that the finding of the learned trial Court that Ghandhari did not have any legal right to convey the suit land in favour of one Sri Ham Chandra Malakar, from whom the defendants/respondents claim to derive title in furtherance of a Sale Deed executed by Gandhari in favour of Hem Chandra Malakar and subsequent exchange of land by another Deed by Hem Chandra Malakar in favour of the father of defendants/respondents, having not been challenged by the defendants/respondents, which finding has not been disturbed by the learned first appellate Court, which has allowed the appeal filed by the defendants/respondents and set aside the decree passed by the learned trial Court, only on the ground that the suit land described in Schedule 'Ka's did not tally with the land which was the subject matter of the Will, the defendants/respondents now cannot urge that the suit land is not the subject matter of the Will. 13. Relating to the substantial questions of law formulated vide order dated 20.11.2008, it has been submitted by Mr. Goswami, learned senior counsel that to constitute a valid Gift Deed and to claim title on the basis of a Gift, it must be effected by a registered instrument signed for and on behalf of the donor and attested at least by 2 witnesses, as required under Section 123 of the Transfer of Property Act, 1882 and, in the instant case, there being admittedly only one attesting witness to the said document (Ext. Cha) namely Sri Karani Malakar, the defendants/respondents cannot base their title on the said Deed. Mr. Cha) namely Sri Karani Malakar, the defendants/respondents cannot base their title on the said Deed. Mr. Goswami further submits that even the said Deed has not been proved as required under Section 68 of the Evidence Act, as in spite of the opportunity given by this Court vide order dated 28.8.1996 allowing them to adduce additional evidence under Order XLI Rule 27 CPC, they did not prove the said document (Ext. Cha) by examining the attesting witness. It has further been submitted that there is no evidence on record that the attesting witness is not alive. Mr. Goswami, therefore, submits that the decree passed by the learned first appellate Court by affirming the judgment and decree passed by the learned trial Court is required to be set aside. 14. Mr. Sharma, learned senior counsel for the respondents, initially on 18.9.2008 had submitted that since the defendants/respondents have filed the gift deed in the Court, which is available on the records of the learned Courts below, a further opportunity should be given to them to prove the said document, otherwise it will cause miscarriage of justice, Mr Sharma, however, on 26.3.2009 when the appeal was heard again after formulating additional substantial questions of law, for the reasons recorded above, however, has submitted that the gift deed (Ext. Cha) having been acted upon, the plaintiffs/appellants cannot now turn around and contend that no title is passed on the basis of such deed and the same is not a valid document in the eye of law. Mr. Sharma, however, could not demonstrate that the Ext. Cha deed was attested by 2 attesting witnesses as required under Section123 of the Transfer of Property Act and the alone attesting witness to the said deed has been examined to prove the execution, as required under Section 68 of the Evidence Act. 15. I have considered the submissions of the learned Counsel for the parties and perused the materials available on record. 16. The plaintiffs in the plaint have categorically pleaded that Durga Malakar, the original owner of the land described in Schedule 'Ka' executed the Will in respect of the land measuring 2B-4K-2L described in Schedule 'Ka' to the plaint, along with some other land on 21st Aswin, 1365 B.S. (corresponding to 1958 AD) in favour of the plaintiffs, which was probated on 20.11.73 and thus the plaintiffs acquired title over the said land. The defendants/respondents in para-9 of the written statement have admitted that the suit land originally belonged to Durga Malakar, but have contended that the suit land has been gifted to his wife Gandhari by executing a deed of gift dated 25.5.1959, who subsequently sold the land to one Hem Chandra Malakar by a registered deed of sale dated 21.9.1960 and who in turn exchanged the said land with the land belonging to the father of defendants/respondents and relinquished the right over the said land. It has further been pleaded in the written statement that though by concealing the truth the plaintiffs/appellants have obtained the probate, the title of the defendants/respondents cannot be tainted and their right, title and interest cannot be taken away. In the written statement, there is even no whisper challenging the pleadings of the plaintiffs/appellants in the plaint that the suit land described in Schedule 'Ka' to the plaint is part of the subject matter of the Will. 17. Order VIII, Rule 3 CPC requires the defendants to specifically deny the allegation of facts in the plaint and such denial is not to be evasive as stipulated in Rule 4 thereof. Order VIII, Rule 5(1) of CPC provides that every allegation in the plaint, if not denied specifically or by necessary implication, or stated to be admitted in the pleadings of the defendant, shall be taken to be admitted except as against a person under disability. Proviso to Sub-rule (1), however, empowers the Court to require any fact so admitted to be proved, otherwise then by such admission. In the instant case, the suit proceeded on the ground that the suit land described in Schedule 'ka' to the plaint is part of the property Willed away by Ext. 3 and the learned trial Court by judgment and decree dated 16.9.1986 against issue No. 4 has recorded the finding that the Will (Ext. 3) has been probated and after such Will by Durga in respect of the suit property in favour of the plaintiffs, his wife Gandhari cannot have any saleable interest over the suit land and, therefore, cannot transfer the land by way of gift or otherwise. The said finding of the learned trial Court has in fact not been disturbed by the learned first appellate Court. The said finding of the learned trial Court has in fact not been disturbed by the learned first appellate Court. The learned first appellate Court, however, has set aside the judgment and decree passed by the learned trial Court and allowed the appeal preferred by the defendants/respondents, on the ground that though Durga Malakar executed the Will in favour of the plaintiffs/appellants, by his subsequent conduct namely the execution of the gift deed on 25.5.1959 he has varied the Will. The learned lower appellate Court at the same time has also held that the defendants/respondents, however, could not prove the execution and existence of the registered deed of gift so as to make the Will executed by Durga Malakar for the same immovable property ineffective. Having held so, the learned first appellate Court, however, has recorded the finding that the plaintiffs/appellants could not prove that Ext. 'ka' suit land is part of the land willed away by the Will (Ext. 3). Such a finding, in the absence of any denial and on the grounds stated above, cannot be sustained. 18. This leads to the considerstion of the substantial questions of law formulated vide order dated 20.11.2008. Admittedly, the gift deed Ext. Cha has been attested by only one attesting witness namely Karani Malakar and the defendants/respondents in spite of opportunity given by this Court vide order dated 28.8.1996 allowing the application filed by them under Order XLI Rule 27 of CPC did not even examine the said attesting witness to prove the due execution of the gift deed. No evidence has also been laid to the effect that the said attesting witness is hot alive and is not subject to the process of the Court or incapable of giving evidence. 19. Section 123 of the Transfer of Property Act, 1882 provides that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by and on behalf of the donor and attested by at least 2 witnesses. Section 68 of the Evidence Act provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least is 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. Section 68 of the Evidence Act provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least is 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. Proviso to Section 68 stipulates that it shall not be necessary to call an attesting witness in proof of execution of any document, not being a Will, which has been registered in according with the provisions of the Indian Registration Act, 1908, unless the execution of any such document, by the person by whom it purports to have been executed is specifically denied. 20. As noticed above, ext. 'Cha' gift deed has not been attested by two attesting witnesses, as required under Section 123 of the Transfer of Property Act. Moreover, the said document has not been proved as required under Section 68 of the Evidence Act. Hence, the defendants/respondents cannot claim title over the suit land by means of the Ext. 'Cha' Gift Deed. 21. In view of the aforesaid discussion and the findings recorded above, the judgment and decree passed by the learned first appellate Court is set aside. The judgment and decree passed by the learned trial Court is upheld and restored. In the result the appeal stands allowed. However, keeping in view of the facts and circumstances of the case, the parties are directed to bear their own costs, throughout. Send down her records. Appeal allowed