JUDGMENT : A.K. RATH, J. 1. Defendant no.1 is the appellant against a confirming judgment. 2. Plaintiffs-Respondents 1 to 4 instituted the suit for declaration of title in respect of Schedule-C land, recovery of possession, declaration that gift deed dated 26.11.1959 is null and void and Schedule-B land is the joint family property of the parties. 3. One Jagannath Patel died leaving behind five sons, namely, Ram Krishna, Ude, Ram Rai, Janardan and Shyamsundar. Ram Rai died leaving behind his wife-Padmabati and daughter Ghasiana-plaintiff no.4. Thereafter, Janardan, younger brother of Ram Krishna, married to Padmabati, according to the prevailing caste and custom of the society. Out of their wedlock, three daughters, namely, plaintiffs 1 to 3 were born. Ghasiana, daughter of Ramkrishna, was brought up in the house of Janardan. She was treated like daughter of Janardan. Case of the plaintiffs was that Janardan was separated from other two brothers in mess and property. He was in possession of Schedule-A land exclusively towards his share. In Mutation Case No.593 of 1950-51, his name was mutated in respect of Schedule-A land. He was in joint possession of Schedule-B land. Padmabati executed a deed of release in favour of the plaintiffs. Plaintiffs are entitled to the property left by Janardan. Subsequently they came to know that Ganapati-defendant no.1 has got an unregistered gift deed purported to have been signed by Janardan in respect of Schedule-C land. In the settlement operation, when he tried to record the land in his name, plaintiffs objected to the same. The Assistant Settlement Officer recorded Schedule-A land in favour of the plaintiffs, but recorded the note of possession that Schedule-C land is a part of Schedule-A land. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra. 4. Defendants 1 and 2 filed a written statement pleading, inter alia, that Janardan was separated from the joint family. He got his share separated by amicable arrangements. He had no title over Schedule-B land. Janardan had gifted some land to the plaintiffs. He was in possession the land. Rest land remained with him. Defendant no.1 was cultivating a portion of the land. Janardan executed a Will, Ext.F, in respect of Schedule-C land in favour of defendant no.1 in presence of the witnesses on 26.10.1959. After his death, defendant no.1 is in possession of Schedule-C land. 5. He was in possession the land. Rest land remained with him. Defendant no.1 was cultivating a portion of the land. Janardan executed a Will, Ext.F, in respect of Schedule-C land in favour of defendant no.1 in presence of the witnesses on 26.10.1959. After his death, defendant no.1 is in possession of Schedule-C land. 5. On the inter se pleadings of the parties, learned trial court struck ten issues. Both the parties led evidence, oral and documentary. Learned trial court decreed the suit holding that there was no evidence on record that Janardan executed Ext.F. Attesting witnesses are alive. But then, they have not been examined. Janardan had not executed Ext.F with free will. There was no proof that he had sound and disposing mind at the time of execution of Ext.F. Plaintiffs are illiterate women. Ext.F was not read over and explained to them. The stamp paper of Ext.F was purchased in the year 1952. Ext.F has not been probated. Defendant no.1 trespassed into Schedule-A and B land in the year 1975. There was no evidence that defendant no.1 was in possession of Schedule-C land. Schedule-B land is the joint family property of the plaintiffs and defendants 1 and 2. Unsuccessful plaintiffs filed Title Appeal No.3 of 1979 before the learned District Judge, Sundargarh, which was eventually dismissed. It is apt to state here that during pendency of the appeal, appellant no.1 and respondent nos.3 and 4 died; whereafter their legal heirs have been substituted. 6. The second appeal was admitted on the substantial questions of law enumerated in ground nos.1, 2 and 4. The same are - "1. For that in the absence of any evidence to show that C schedule property had fallen to the share of Janardan, it should have been held that the plaintiffs had failed to establish their title and as such, the suit should have been dismissed. 2. For that due execution of the document Ext.F having not been denied, the court below has committed an illegality in holding that the defendants were required to prove due attestation of the document. It is submitted that in view of Sec.68 of the Indian Evidence Act it was not necessary to prove attestation. 4. 2. For that due execution of the document Ext.F having not been denied, the court below has committed an illegality in holding that the defendants were required to prove due attestation of the document. It is submitted that in view of Sec.68 of the Indian Evidence Act it was not necessary to prove attestation. 4. For that even assuming though not conceding that attestation was required to be proved, in view of the evidence of D.W.1 and D.W.7 which clearly shows that the executant had executed Ext.F in presence of the witnesses and the witnesses had signed the document in presence of the executant, it should have been held that due attestation of the document has been proved. 7. Heard Mr. Gautam Mishra on behalf of Mr. A.K. Nanda, learned counsel for the appellants and Ms. Sagarika Sahoo on behalf of Mr. Ashok Mukharji, learned Senior Advocate for the respondents. 8. Mr. Mishra, learned counsel for the appellants submitted that Ext.F was marked without objection. A petition under Order 18 Rule 4 CPC was filed for summoning the attesting witnesses and the same was rejected by order dated 20.11.1978. Ext.F is a Will. The same does not require probate. Learned court below committed patent illegality in holding that in absence of probate of Ext.F, the same was not acceptable in law. In the facts and circumstances of the present case, the court below ought to have accepted Ext.F to be a Will. He further submitted that an application was filed for summoning the attesting witness before the learned appellate court. But then, the same was hastily rejected. The approach of the learned appellate court has resulted in gross miscarriage of justice. He further submitted that the finding of the court below that the probate is required is contrary to the decision laid down by this Court. Learned court below ought to have accepted Ext.F to be the Will and proceeded to decide the matter on merit. To buttress the submission, he placed reliance on the decisions of this Court in the case of Sarat Chandra Mohanty v. Chandramani Bewa, (1972) 37 CutLT 445 and Amruta Pasayat and another v. Tama Pasayat, (2018) 1 CurLR 196. 9. Per contra, Ms. Sahoo learned counsel for respondents 1 to 4 submitted that both the courts concurrently held that execution of Ext.F had not been proved. 9. Per contra, Ms. Sahoo learned counsel for respondents 1 to 4 submitted that both the courts concurrently held that execution of Ext.F had not been proved. Defendant no.1 had failed to prove that Janardan had sound and disposing mind at the time of execution of Ext.F. Defendant no.2 had not preferred any appeal. Thus defendant no.2 has no claim over Schedule-C land. Learned trial court rendered a finding that Schedule-B land is the joint property of plaintiffs. Defendants 1 and 2 had not challenged the same in the appeal. The same has become final and conclusive. She further submitted that evidence from both the sides was closed on 7.11.1978. Argument was heard on 17.11.1978. On 18.11.1978, defendant no.1 filed a petition under Order 18 Rule 17-A CPC to examine the attesting witnesses. The trial court is justified in rejecting the application. The application was filed at a belated stage. Learned court below has rightly rejected the petition for additional evidence. No case was made out for adducing additional evidence. Ext.F was not proved. Ext.F is not a Will. Her alternative submission is that even if Ext.F is construed to be a Will, defendant no.1 cannot derive any title on the strength of the same without probate. Ext.F is a conditional gift. The gift deed requires registration. The admitted case is that Schedule-C land belongs to Janardan. Finding of the learned trial court that in Schedule-C land, defendant no.2 has no claim is final since defendant no.2 has not filed appeal before the learned District Judge. 10. Ext.F has been scribed in an unstamped paper. On a conspectus of Ext.F, it is evident that Janardan Patel had executed the "Antima Dutta Patra". "Dutta Patra" means 'gift'. The recitals of Ext.F would clearly indicate that the same is a conditional gift deed. 11. 'Gift' has been defined Under Sec.122 of the Transfer of Property Act ("T.P Act"). Sec. 123 of the T.P Act provides transfer how effected. Sec.123 of the T.P Act, which is relevant, is quoted hereunder: "123. Transfer how effected : For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument singed by or on behalf of the donor, and attested by at least two witnesses. Sec. 123 of the T.P Act provides transfer how effected. Sec.123 of the T.P Act, which is relevant, is quoted hereunder: "123. Transfer how effected : For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument singed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered." 12. On a bare reading of Sec.123 of the T.P Act, it is evident that the transfer must be effected by a registered instrument singed by or on behalf of the donor, and attested by at least two witnesses. Ext.F is an unregistered document. Even if attesting witnesses had been examined, the same would have no effect. Thus reliance placed on Ext.F is totally misplaced. The substantial questions of law are answered accordingly. 13. The decisions cited by the learned counsel for the appellants are distinguishable on facts. In Sarat Chandra Mohanty, this Court held that proviso to Sec.68 of the Evidence Act indicates that in the absence of specific denial, it would not be necessary to call an attesting witness in proof of execution of the document. There is no quarrel over the proposition of law. 14. In Amruta Pasayat, this Court held that the bar contained in part VIII making the provision to obtain a probate of the will as the condition precedent to claim the right as a legatee under the Will has no applicability for the natives of Sundargarh. But in the instant case, Ext.F is an unstamped gift deed. 15. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.