REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7528 OF 2019

(ARISING OUT OF SLP (CIVIL) NO. 4382 OF 2019)

GOVINDBHAI CHHOTABHAI PATEL & ORS. .....APPELLANT(S)

VERSUS

PATEL RAMANBHAI MATHURBHAI .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1) Leave granted.

2) The order passed by the High Court of Gujarat on September 5,

2018 in second appeal is the subject matter of challenge in the

present appeal on behalf of the plaintiffs-appellants.

3)The appellants are sons of Chhotabhai Ashabhai Patel

1

who died on

December 6, 2001. During his life time, he purportedly executed a

gift deed dated November 15, 1977 in favour of defendant

Ramanbhai Mathurbhai Patel

2

.

4)The parties went to trial on the following issues:

(i)Whether the plaintiffs prove that the disputed gift deed is

1 for short, ‘Donor’

2 for short, ‘Donee’

1

fabricated?

(ii)Whether the plaintiffs prove that the suit properties are

ancestral properties and late Chhotabhai Ashabhai had no

right to execute the gift deed?

(iii)Whether the plaintiffs prove that the defendant has no right,

title or interest over the said property?

(iv)Whether the plaintiffs prove that they are entitled to get the

relief as prayed for?

(v)Whether the defendant proves that the plaintiffs have no right

to file the present suit?

(vi)What order and decree?

5)The High Court framed five substantial questions of law and after

giving findings on such substantial questions of law, the judgment

and decree passed by the learned Trial Court on February 10, 2014

and the judgment and decree passed by the First Appellate Court

on October 9, 2017 were set aside.

6)The findings recorded by the High Court, inter alia, are that

execution of the gift deed was not specifically denied in the suit

filed. Therefore, it is not necessary for the Donee to examine one

of the attesting witnesses in terms of proviso to Section 68 of the

Indian Evidence Act, 1872

3

. It is also held that the suit property is

not ancestral property. The property was purchased by Ashabhai

Patel, father of the Donor and it is by virtue of Will executed by

Ashabhai Patel, property came to be owned by the Donor in the

year 1952-1953. The High Court, thus, held that the Donor was

competent to execute the gift deed dated November 15, 1977 as

the property was not ancestral in the hands of Donor. The relevant

3 for short, ‘Evidence Act’

2

findings on such questions which arose for consideration in the

second appeal, read as under:

“92. Once again, at the cost of repetition, I state that

Section 68 of the Evidence Act has been thoroughly

misconstrued by the Courts below. The occasion for

applying the rule of exclusion from evidence in Section

68 arises when a party seeking to rely upon a document

requiring attestation, fails to prove it in a given manner.

As observed by me earlier, the party will then not be

able to use it as evidence. But this procedural disability

against use of a document as evidence cannot by any

stretch be regarded as an affirmative finding that the

grounds of attack for avoidance of the deed as claimed

in the original relief or cancellation subsisted. The

plaintiff cannot succeed relying upon the weakness or a

flaw in the case set up by the defendant. The law is

that the plaintiff can succeed in the suit only on the

strength of his own case.

xx xx xx

105. The case of the plaintiffs is very specific.

According to them, the suit properties were purchased

by their grandfather and those properties came to be

devolved upon their father by Testamentary disposition

i.e. on the strength of the will of their grandfather. The

Hindu Law, as it stands today, clearly postulates that if

it is a self-acquired property of the father, it falls into

the hands of his sons not as coparcenary property, but

would devolve on them in their individual capacity.

Where the property is a self-acquired property of the

father, it falls into the hands of his son in his individual

capacity and not as coparcenary property in such case

son’s son cannot claim right in such property.

xx xx xx

108. In view of the above, I hold that the suit properties

devolved upon the father of the plaintiffs could not be

said to be coparcenary property. The properties were

purchased by the grandfather of the plaintiffs, as

pleaded and admitted by the plaintiffs themselves.

Such self-acquired properties of the grandfather came

to be devolved upon the father of the plaintiffs by way

of a ‘will’ i.e. testamentary disposition. In such

circumstances, it could be said that the properties are

3

self-acquired properties of the father of the plaintiffs.

The succession would have been in accordance with

Section 8 of the Hindu Succession Act. When the

properties could be said to be self-acquired properties

of the father of the plaintiffs, then the father could have

definitely transferred those properties by way of a gift

deed.

xx xx xx

114. In view of the above, I hold that the suit properties

were self-acquired properties of the father of the

plaintiffs, and in such circumstances, it was open for the

father of the plaintiffs to execute the gift deed in favour

of the defendant.”

7)Learned counsel for the appellants submitted that the High Court

has exceeded its jurisdiction in second appeal as findings recorded

by the First Appellate Court were not specifically dealt with. It is,

thus, argued that the interference in the second appeal is contrary

to judgment of this Court in Thulasidhara & Anr. v.

Narayanappa & Ors.

4

. It is argued that the appellants have

produced old revenue record and from the documents (Exhibits 107

to 126), the property is proved to be ancestral and such is the

finding recorded by the Trial Court and the First Appellate Court.

Such evidence was not controverted by the Donee. It is argued

that the findings recorded by the High Court that the property

devolved on the Donor by virtue of a Will, therefore, it ceases to be

an ancestral property is contrary to the judgment of this Court in

C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar &

Anr.

5

. The reliance is also placed upon judgment of this Court in

4 (2019) 6 SCC 409

5 AIR 1953 SC 495

4

Shyam Narayan Prasad v. Krishna Prasad & Ors.

6

that self-

acquired property of a grandfather devolves upon his son as

ancestral property.

8)On the other hand, learned counsel for the Donee argued that the

plaintiffs have failed to prove that the property was ancestral

property after admitting that their grandfather has purchased the

property and given it under Will to their father to the exclusion of

other family members. The argument raised by learned counsel for

the appellants that the High Court has exceeded its jurisdiction by

reversing the findings of fact recorded by the First Appellate Court

does not hold good as the very reasoning recorded has been found

to be illegal. It is argued that judgment in C.N. Arunachala

Mudaliar is to the effect that the property bequeathed or gifted to

a son by a Mitakshara father will be treated as self-acquired

property in the hands of Donee.

9)The first and the foremost question required to be examined is as

to whether the appellants have proved that the property in the

hands of Donor was ancestral property.

10)Govindbhai Chhotabhai Patel (PW-1) has stated, vide Exhibit 34,

that the property in question was purchased by his grandfather

Ashabhai Patel and after death of his grandfather, property was

owned by the Donor according to the inheritance since 1952-1953.

The appellants stated in the cross-examination that there was

6 (2018) 7 SCC 646

5

family partition in the year 1964 between the Donor and his two

brothers Chimanbhai Patel and Motibhai Patel. It is, thus, sought to

be argued that since the property was partitioned in 1964,

therefore, the Donor has acquired the property not as self-acquired

property but as ancestral property.

11)We find that a statement in the cross-examination that there was

partition between the Donor and his two brothers will not make the

property ancestral in the hands of Donor. The Will executed by the

father of Donor has not been produced by the appellants to show

as to what was intended by his grandfather when the Will was

executed in favour of Donor. It is admitted fact that grandfather

purchased the property, thus, such self-acquired property came to

be bequeathed to the Donor even as per the judgment relied upon

by the Appellant.

12)This Court in three Judge Bench in C.N. Arunachala Mudaliar

considered the question as to whether the properties acquired by

defendant No. 1 under Will are to be regarded as ancestral or self-

acquired property in his hands. It is a case where the plaintiff

claimed partition of the property in a suit filed against his father

and brother. The stand of the father was that the house property

was the self-acquired properties of his father and he got them

under a Will executed in the year 1912. It was held that father of a

Joint Hindu family governed by Mitakshara law has full and

uncontrolled powers of disposition over his self-acquired immovable

6

property and his male issue could not interfere with these rights in

any way. The Court while examining the question as to what kind

of interest a son would take in the self-acquired property of his

father which he receives by gift or testamentary bequest from him,

it was held that Mitakshara father has absolute right of disposition

over his self-acquired property to which no exception can be taken

by his male descendants. It was held that it was not possible to

hold that such property bequeathed or gifted to a son must

necessarily rank as ancestral property. It was further held that a

property gifted by a father to his son could not become ancestral

property in the hands of the donee simply by reason of the fact

that the donee got it from his father or ancestor.

13)The Court found that such questions have been answered in

different ways by different High Courts. The Calcutta High Court

held that properties become ancestral property in the hands of his

son as if he had inherited it from his father but in other High

Courts, the question is treated as one of construction to be decided

in each case with reference to its facts as to whether the gifted

property was intended to pass to the sons as ancestral or self-

acquired property.

14)The Bombay High Court in Jugmohan Das v. Sir Mangal Das

7

held that if the son takes by devise, the property continues to be

self-acquired in his hands. A man can give away his self-acquired

7 (1886) I.L.R. 10 Bom 528

7

property to whomsoever it pleases, including his own sons and that

property so given would be considered self-acquired in the hands of

the donee. The Court held as under:

“I now come to the question, whether a son, to whom a

father leaves his self-acquired property by will, takes

the estate by devise or by descent. This is a most

important point, perhaps the most important point in

the case. For, if the son takes by devise, the property

would, in my opinion, continue to be self-acquired in his

hands, and a ready means would be afforded by the use

of the testamentary power of checking enforced

partitions…

xx xx xx

The principle is now settled beyond question, that

under Hindu law a man may alienate his property to the

same extent by a will as he might by a gift inter vivos.

In the Tagore Case (Ind. Ap. Sup. Vol. at p. 68) their

Lordships of the Privy Council say: “A gift by will is, until

revocation, a continuous act of gift up to the moment of

death, and does then operate to give the property

disposed of to the persons designated as beneficiaries.

They take, upon the death of the testator, as if he had

given the property in his life-time.”

A bequest by will, therefore, is a gift made in

contemplation of death. It only differs from a gift in the

fact that it takes effect at a future time instead of

immediately. But it must clearly be governed and

controlled by the general rules regarding gift. Now,

there is no doubt that a man can give away self-

acquired property to whomsoever he pleases, including

his own sons; and there is no doubt that property so

given would be considered self-acquired in the hands of

the donee. It would, therefore, follow that property

given by will would equally be self-acquired in the

hands of the devisee.”

15)Such view of the Bombay High Court was accepted by the

Allahabad High Court

8

and the Lahore High Court

9

. This Court in

8 Parsotam v. Janki Bai, ILR 29 All 354

9 Amarnath v. Guran, AIR 1918 Lah 394

8

C.N. Arunachala Mudaliar approved the view of the Bombay

High Court and held as under:

“9. … It was held, therefore, that the father of a joint

Hindu family governed by Mitakshara law has full and

uncontrolled powers of disposition over his self-acquired

immovable property and his male issue could not

interfere with these rights in any way. This statement of

the law has never been challenged since then and it has

been held by the various High Courts in India, and in

our opinion rightly, that a Mitakshara father is not only

competent to sell his self-acquired immovable property

to a stranger without the concurrence of his sons

[Vide Muddun v. Ram, 6 WR 71] but he can make a gift

of such property to one of his own sons to the detriment

of another [ Vide Sital v. Madho, ILR 1 All 394] ; and he

can make even an unequal distribution amongst his

heirs [Vide Bawa v. Rajah, 10 WR 287].

10. So far the law seems to be fairly settled and there

is no room for controversy. The controversy arises,

however, on the question as to what kind of interest a

son would take in the self-acquired property of his

father which he receives by way of gift or testamentary

bequest from him, vis-a-vis his own male issue. Does it

remain self-acquired property in his hands also,

untrammeled by the rights of his sons and grandsons or

does it become ancestral property in his hands, though

not obtained by descent, in which his male issue

become co-owners with him?......

11. In view of the settled law that a Mitakshara father

has right of disposition over his self-acquired property

to which no exception can be taken by his male

descendants, it is in our opinion not possible to hold

that such property bequeathed or gifted to a son must

necessarily, and under all circumstances, rank as

ancestral property in the hands of the donee in which

his sons would acquire co-ordinate interest…”

16)Still further, it was held that the father’s gifts are exempt from

partition. The reason for this distinction is that the theory of equal

ownership between the father and the son in the ancestral property

9

is not applicable to the father’s gifts at all. The Court held as

under:

“12. …But when the father obtains the grandfather's

property by way of gift, he receives it not because he is

a son or has any legal right to such property but

because his father chose to bestow a favour on him

which he could have bestowed on any other person as

well. The interest which he takes in such property must

depend upon the will of the grantor. A good deal of

confusion, we think, has arisen by not keeping this

distinction in mind. To find out whether a property is or

is not ancestral in the hands of a particular person, not

merely the relationship between the original and the

present holder but the mode of transmission also must

be looked to; and the property can ordinarily be

reckoned as ancestral only if the present holder has got

it by virtue of his being a son or descendant of the

original owner. The Mitakshara, we think, is fairly clear

on this point. It has placed the father's gifts under a

separate category altogether and in more places than

one has declared them exempt from partition. Thus in

Chapter I, Section 1, Placitum 19 Mitakshara refers to a

text of Narada which says:

“Excepting what is gained by valour, the wealth

of a wife and what is acquired by science which

are three sorts of property exempt from

partition; and any favour conferred by a father.”

xx xx xx

15. Another argument is stressed in this connection,

which seems to have found favour with the learned

Judges of the Patna High Court who decided the Full

Bench case [Vide Bhagwat v. Mst. Kaporni, ILR 23 Pat

599] referred to above. It is said that the exception in

regard to father's gift as laid down in placitum 28 has

reference only to partition between the donee and his

brothers but so far as the male issue of the donee is

concerned, it still remains partible. This argument, in

our opinion, is not sound. If the provision relating to

self-acquisition is applicable to all partitions, whether

between collaterals or between the father and his sons,

there is no conceivable reason why placitum 28, which

occurs in the same chapter and deals with the identical

topic, should not be made applicable to all cases of

10

partition and should be confined to collaterals alone.

The reason for making this distinction is undoubtedly

the theory of equal ownership between the father and

the son in the ancestral property which we have

discussed already and which in our opinion is not

applicable to the father's gifts at all. Our conclusion,

therefore, is that a property gifted by a father to his son

could not become ancestral property in the hands of the

donee simply by reason of the fact that the donee got it

from his father or ancestor.”

17)This Court further held that on reading of the Will as a whole, the

conclusion becomes clear that the testator intended the legatees

to take the properties in absolute rights as their own self-acquired

property without being fettered in any way by the rights of their

sons and grandsons. In other words, he did not intend that the

property should be taken by the sons as ancestral property.

Consequently, the appeal was allowed and the suit for partition by

the son against his father was dismissed.

18)In other case reported as Pulavarthi Venkata Subba Rao & Ors.

v. Valluri Jagannadha Rao (deceased) by his Heirs & LRs &

Ors.

10

, life estate was given by Valluri Jagannadha Rao to his two

sons, Srivatsankara Rao and Narasimha Rao. There was a condition

that if any of his sons left no son, the sons of his other son would

be entitled to the properties at the end of the life estate. The High

Court held that the properties taken by two sons of Narasimha Rao

under Will were their separate properties and not ancestral

properties as there was no such intention in the Will. This Court

held as under:

10 AIR 1967 SC 591

11

“8. The contention of the judgment-debtors was that

there were two persons who were legatees under the

will. They took the villages not as ancestral properties

but as self-acquired properties, and

the peshkash payable on these two villages must be

divided between them before Section 3(ii), proviso (D)

of the Act was made applicable. The contention on the

side of the decree-holders was that these properties

were held by an undivided Hindu family and the sons of

Narasimha Rao took the properties under the will as

ancestral properties, and the peshkash in respect of the

two villages must be added together for the purpose of

the application of the said proviso. The High Court held

that the properties taken by the two sons of Narasimha

Rao under the will, were their separate properties and

not ancestral properties, as there were no words to

show a contrary intention. The High Court also referred

to the conduct of the respondents in partitioning the

villages and held that the property was held not jointly

but in definite shares. The High Court, therefore, held

that the peshkash in respect of the two villages could

not be aggregated. The High Court, accordingly, broke

up the peshkash in respect of Kalagampudi and the

three-fifth share of Pedamamidipalli into two halves and

held that as each son of Narasimha Rao was required to

pay only his share, the peshkash paid by them

individually did not exceed Rs 500 mentioned in proviso

(D), and that the judgment-debtors were, therefore,

agriculturists. This part of the case was not challenged

before us by the learned Advocate-General of Andhra

Pradesh. Indeed, the decision of the High Court is

supported by C.N. Arunachala Mudaliar v. C.A.

Muruganatha Mudaliar [(1954) SCR 243], in respect of

the character of the property inherited by the two sons

of Narasimha Rao, and this fundamental fact could not

be questioned…..”

19)Learned counsel for the appellants has referred to Shyam

Narayan Prasad. That is a case in which the property in question

was held to be ancestral property by the Trial Court. The plaintiffs

therein being sons and grandson of one of the sons of Gopal

Prasad, the last male holder was found to have equal share in the

12

property. The question examined was whether the property

allotted to one of the sons of Gopal Prasad in partition retains the

character of coparcenary property. It was the said finding which

was affirmed by this Court. This Court held as under:

“12. It is settled that the property inherited by a male

Hindu from his father, father's father or father's father's

father is an ancestral property. The essential feature of

ancestral property, according to Mitakshara Law, is that

the sons, grandsons, and great grandsons of the person

who inherits it, acquire an interest and the rights

attached to such property at the moment of their birth.

The share which a coparcener obtains on partition of

ancestral property is ancestral property as regards his

male issue. After partition, the property in the hands of

the son will continue to be the ancestral property and

the natural or adopted son of that son will take interest

in it and is entitled to it by survivorship.”

20)The question examined in the aforesaid case was in respect of

status of the property after partition. The said question is not

arising in the present case as it is not a question of partition but

testamentary succession in favour of the Donee.

21)In view of the undisputed fact, that Ashabhai Patel purchased the

property, therefore, he was competent to execute the Will in favour

of any person. Since the beneficiary of the Will was his son and in

the absence of any intention in the Will, beneficiary would acquire

the property as self-acquired property in terms of C.N.

Arunachala Mudaliar case. The burden of proof that the property

was ancestral was on the plaintiffs alone. It was for them to prove

that the Will of Ashabhai intended to convey the property for the

benefit of the family so as to be treated as ancestral property. In

13

the absence of any such averment or proof, the property in the

hands of Donor has to be treated as self-acquired property. Once

the property in the hands of Donor is held to be self-acquired

property, he was competent to deal with his property in such a

manner he considers as proper including by executing a gift deed

in favour of a stranger to the family.

22)The other material question is whether the appellants have

specifically denied the execution of the gift deed in terms of proviso

to Section 68 of the Evidence Act, to make it mandatory for the

defendant to examine one of the attesting witnesses to prove the

Gift deed in his favour.

23)Section 68 of the Evidence Act, reads as under:

“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, 1908 (16 of 1908), unless its execution

by the person by whom it purports to have been

executed is specifically denied.”

24)A gift deed is required to be compulsorily attested in terms of

Section 123 of the Transfer of Property Act, 1882. Similar is the

provision in respect of execution of a Will which is required to be

14

attested in terms of Section 63 of the Indian Succession Act, 1925.

Section 68 of the Evidence Act makes it mandatory to examine one

of the attesting witnesses for the purpose of proving of the

execution of Will but such limitation is not applicable in respect of

proof of execution of any document which has been registered in

accordance with provisions of the Indian Registration Act, 1908,

unless the execution is specifically denied.

25)The gift deed (Ex.104) is registered and that all the requirements of

Section 123 of the Transfer of Property Act have been fulfilled, is

the finding of the Trial Court. The learned Trial Court recorded the

following findings:

“However, as far as it is concerned with the gift deed of

Exh-104, in order to prove that Late Chhotabhai

Ashabhai executed this gift deed in favour of the

defendant in fully conscious state, it is necessary as per

section – 123 of the Transfer of Property Act that this

gift deed should be signed by the executer in presence

of the two witnesses that means it should be executed

in the presence of two attesting witnesses. Moreover, it

should be proved that such gift deed is registered.

Looking to the gift deed at Exh – 104, it is an

undisputable fact that it is properly registered before

the Sub Registrar, Padra. It is also an indisputable fact

that (1) Bhikhabhai Ramabhai and (2) Karshanbhai

Dhulabhai have put their signatures in this gift deed as

the attesting witnesses. Thus, it is found that all the

requirements of section 123 of the Transfer of Property

Act have been fulfilled. However, along with this, it is

also necessary to examine the attesting witnesses of

the deed.”

26)The argument of the learned counsel for the appellants is that the

attesting witnesses of the gift deed are Bhikhabhai Ramabhai and

15

Karsanbhai Dhulabhai, whereas Solanki Bhikhabhai Ramabhai and

Vaid Alkaben Vinodchandra are the witnesses at the time of

registration of the document. It is argued that the attesting

witnesses of the document have not been examined which is a

mandatory requirement to prove execution of the gift deed in terms

of Section 68 of the Evidence Act. The High Court has held that the

appellants have not denied specifically the execution of the gift

deed, therefore, it was not necessary for the Donee to examine one

of the attesting witnesses.

27)The issue No. 1 framed by the Trial Court is whether the gift deed is

fabricated. Such issue arises on the basis of averments made in

the plaint wherein, the appellants have admitted the execution of

the gift deed but alleged that Donee has made unsuccessful effort

for grabbing the property. The appellants have, inter alia, pleaded

that Chanchalben, wife of the Donor, died in August, 1997. Thus,

there was no reason for the Donor to execute the gift deed as real

nephews of the Donor were taking complete control of the Donor.

The other ground of challenge was that the attesting witnesses

have no relation with the Donor nor they are friends of the Donor.

It was also alleged that the gift is not for religious reasons or to any

religious trust or institution or for public use nor the consent has

been sought by the Donor from the appellants. The specific

averments in the plaint are as under:

“2) The deceased Chhotabhai Ashabhai who was the

father of plaintiff Nos. 1 to 4 and plaintiff Nos. 1 to 4

were living in USA (America) since many years and the

16

deceased Chhotabhai Patel and the mother of plaintiff

Nos. 1 to 4 Chanchalben wife of Chhotabhai Ashabhai

who had expired in and around August, 1997, and since

August, 1997, deceased Chhotabhai Ashabhai was

living alone thus, taking advantage of his loneliness the

defendant on 15/11/1997 executed one gift deed which

was registered in the office of Sub-Registrar, Padra at

Sr. No. 1004 made unsuccessful efforts for grabbing the

said property thus, the plaintiffs are constrained to file

this suit, on the grounds which are stated as under:

(a) The deceased Chhotabhai Ashabhai was not in any

manner related to the defendant Ramanbhai

Mathurbhai.

(b) The deceased Chhotabhai Ashabhai Patel and his

wife Chanchalben wife of Chhotabhai Ashabhai Patel

were living in America since many years prior to 1997.

(c) Chanchalben the wife of deceased Chhotabhai

Ashabhai had expired during the period of August,

1997, thus, on 15/11/1997, there was no reason for

Chhotabhai to execute the gift deed, not only that but

the real nephews of the deceased Chhotabhai Ashabhai

who were living at Ghayaj were taking complete care of

deceased Chhotabhai Ashabhai, thus, outside their

knowledge, at any time the deceased Chhotabhai had

no reason to execute deed.

(d) In the gift deed dated 15/11/1997, the witnesses

that have signed (1) Bhikhabhai Ramabhai and (2)

Karshanbhai Dhulabhai who were not having any kind of

relations with the deceased Chhotabhai Ashabhai

and/or they were not even related as his friends. There

was no reason of making the gift deed in their

presence.

(e) In the gift deed dated 15/11/1997 the details of the

date of the unregistered Will executed by deceased

Chhotabhai Ashabhai is kept blank and the date and

registration number of the registered Will is also kept

blank, and in this manner, with incomplete details the

gift deed is registered which is made hastily which

supports the facts of the plaintiffs.

(f) In the gift deed dated 15/11/1997 it is clearly evident

that the signature of the deceased Chhotabhai

17

Ashabhai is forged, and in this manner on the basis of

the forged signature the gift deed is registered, in this

regard we are constrained to file the present suit.

(g) The gift deed dated 15/11/1997 which is contrary to

the provisions of law, therefore, also by such gift deed

the defendant does not acquire any rights, interests or

claims on the said property…..”

28)The appellants refer to Will dated December 3, 2001 said to be

executed by the Donor in their favour. But no issue has been

framed in respect of Will propounded by the appellants. In fact, no

attesting witness of the Will has been examined. Therefore, the Will

relied upon by the appellants cannot be said to be proved.

29)The High Court held that the appellants have not led any evidence

that signature of their father on the gift deed was forged as neither

the specimen signature nor writings of their father for the purpose

of comparing the disputed signature on the gift deed have been

attempted. There is no report of an expert in respect of signatures

of the Donor on the gift deed nor any request was made for

sending the document to the Forensic Science Laboratory. The

High Court held as under:

“67. In my view, the plaintiffs have miserably failed to

prove any forgery. If it is the case of the plaintiffs that

the signature of their father on the disputed gift deed is

forged, then the burden is on them to establish and

prove by leading cogent evidence that the signature is

forged by another. A mere doubt or assertion or an

allegation of forgery by itself is not sufficient to even

prima facie draw an inference of fraud. The plaintiffs

tried to rely upon the 'will' said to have been executed

by their late father just two days before his demise in

18

the year 2001. One of the cousins of the plaintiffs took

out the 'will' out of the blue and handed over to the

plaintiffs. The plaintiffs tried to capitalize on this 'will'

because in the said 'will', there is a thumb impression of

the father of the plaintiffs i.e. the testator. The plaintiffs

thereby tried to create a doubt in the mind of the

Courts below that the father was illiterate and was

unable to put his signature. However, if the plaintiffs

wanted to rely upon the 'will', they should have

produced the original and proved the same in

accordance with law by examining one of the attesting

witnesses to the said 'will'. The 'will' has not even been

exhibited, and therefore, there is no question of looking

into the same. The entire approach of the Trial Court

could be said to be erroneous and has led to a serious

miscarriage of justice. I am of the view that the

plaintiffs have practically led no evidence even to prima

facie create a doubt that the signature of their father on

the gift deed is forged. The plaintiffs could have

produced the specimen signature or writings of their

father, if any, for the purpose of comparing the

disputed signature on the gift deed. The Trial Court

could have been asked to seek an opinion of an expert

in this regard by sending the document to the Forensic

Science Laboratory. Nothing of this sort was done. All

that has been asserted in the evidence is that the

father had no good reason to execute the gift deed in

favour of the defendant, more particularly, when the

sons were taking good care of their father. This hardly

could be termed as evidence with regard to fraud or

forgery. The plaintiffs have not even pleaded or

deposed that their father was illiterate and was not able

to put his signature. If the evidence on record is looked

into, then the plaintiffs have in substance just

expressed doubts as regards the signature of their

father.”

30)At this stage, we may reiterate that though the learned Trial Court

has discussed the evidence on record but in view of the finding that

the property is ancestral, no finding was recorded whether the gift

deed is forged or not as per the issue framed. The First Appellate

Court in a short judgment affirmed the finding of the learned Trial

19

Court. The Trial Court has not retuned any finding that the gift

deed is forged. Therefore, the High Court was within its jurisdiction

to decide the Issue No. 1 on the basis of evidence led by the

parties.

31)The appellants challenged the gift deed on account of probabilities

as the witnesses were not related to the family or the friends or

that the gift was not for religious or charitable purposes. The other

challenge was on the ground of forgery or fabrication. The entire

reading of the plaint does not show that there was any specific

denial of execution of the gift deed.

32)The appellants have referred to the judgments in Rosammal

Issetheenammal Fernandez (Dead) by LRs & Ors. v. Joosa

Mariyan Fernandez & Ors.

11

and K. Laxmanan v. Thekkayil

Padmini & Ors.

12

. However, we find that both the judgments are

not applicable to the facts of the present case. In Rosammal, the

appellant had filed a suit for partition and challenged the execution

of the gift deed, settlement deed and the Will. The High Court

found that the execution of the gift deed was specifically denied.

After finding so, the High Court recorded the following findings:

“11. Under the proviso to Section 68 the obligation to

produce at least one attesting witness stands

withdrawn if the execution of any such document, not

being a will which is registered, is not specifically

denied. Therefore, everything hinges on the recording

of this fact of such denial. If there is no specific denial,

the proviso comes into play but if there is denial, the

proviso will not apply. In the present case as we have

11 (2000) 7 SCC 189

12 (2009) 1 SCC 354

20

held, there is clear denial of the execution of such

document by the plaintiff, hence the High Court fell into

error in applying the said proviso which on the facts of

this case would not apply. In view of this the very

execution of the gift deed, Exhibit B-1 is not proved.

Admittedly in this case none of the two attesting

witnesses has been produced. Once the gift deed

cannot be tendered in evidence in view of the non-

compliance of Section 68 of the Indian Evidence Act, we

uphold that the plaintiff has successfully challenged its

execution…”

33)In the facts of the said case, the High Court found that there is

specific denial of execution of the gift deed, therefore, in the

absence of examining one of the attesting witnesses, the gift deed

is not proved.

34)In K. Laxmanan, a suit was filed by daughter claiming estate of

Chathu on the basis of natural succession. The defendant (son of

Chathu) relied upon a gift deed (Ex.B-2) as well as Will in his favour.

The High Court held that both the attesting witnesses were not

examined, therefore, the gift deed and Will are not proved to be

executed. It was found that gift deed was relied upon in the written

statement which was specifically denied in the affidavit filed in

respect of injunction applications. The Court held as under:

“29. Pleadings as we understand under the Code of

Civil Procedure (for short “the Code”) and as is defined

under the provision of Rule 1, Order 6 of the Code

consist only of a plaint and a written statement. The

respondent-plaintiff could have filed a replication in

respect to the plea raised in the written statement,

which if allowed by the court would have become the

part of the pleadings, but mere non-filing of a

replication does not and could not mean that there has

been admission of the facts pleaded in the written

statement. The specific objection in the form of denial

21

was raised in the affidavits filed in respect of the

injunction applications which were accepted on record

by the trial court and moreover the acceptance on

record of the said affidavit was neither challenged nor

questioned by the present appellant.”

35)In the abovesaid case, the plaintiff claimed natural succession

whereas the defendant relied upon gift deed. In the aforesaid

judgments, it has been held as a matter of fact that there was

specific denial of execution of gift deed. But in the present case,

the appellants came out with the plea of forgery and fabrication of

the gift deed which is based on different allegations and proof than

the proof of document attested.

36)Order VI Rule 4 of the Code of Civil Procedure, 1908 warrants that

in all cases in which allegation of any misrepresentation, fraud,

breach of trust, wilful default, or undue influence, the necessary

particulars are required to be stated in the pleadings.

37)In Badat and Co. Bombay v. East India Trading Co.

13

,

considering the provisions of Order VIII Rule 3, it was held that

written statement must deal specifically with each allegation of fact

in the plaint and when a defendant denies any such fact, he must

not do so evasively and answer the points of substance. If his

denial of the said fact is not specific but evasive, the said fact shall

be taken to be admitted.

38)The appellants went to trial on the basis of fabrication of gift deed.

The appellants have admitted the execution of the gift deed but

13 AIR 1964 SC 538

22

alleged the same to be forged or fabricated. However, the

appellants have not been able to prove any forgery in the

execution of the gift deed.

39)Dashrath Prasad Bajooram v. Lallosingh Sanmansingh &

Anr.

14

was dealing with the issue as to whether defendant No. 1

executed the mortgage deed with proper attestation and for

consideration. Considering the proviso to Section 68 of the

Evidence Act, the Court held that word ‘specific’ has to be given

some meaning appearing in proviso to Section 68. The Court held

as under:

“11. That however raises the question whether a mere

general denial of a mtge or not admitting it can be

regarded as a specific denial. It will be observed that

the proviso to Section 68 of the Evidence Act speaks of

a specific denial. Some meaning must be given to the

word ‘specific’. It must mean something over & above a

general denial. Accordingly in my judgment it is not

sufficient to have a mere general denial to; attract the

provisions of S. 68. That was the distinction drawn in

‘Jhillar v. Rajnarain’, AIR (22) 1935 All 781 at p. 784 :

(156 IC 45) & in ‘Laehman Singh v. Surendra Bahadur

Singh’, 54 All 1051 at p. 1058 : (AIR (19) 1932 All 527

FB). But those decisions must in my opinion be held to

have gone too far in view of the decision of their

Lordships of the P.C. in ‘Surendra Bahadur v. Behari

Singh’, AIR (26) 1939 PC 117 : (ILR 1939 KAR 222). In

view of what their Lordships have stated it must now be

accepted that if a party specifically says that he does

not admit a particular fact that amounts to a specific

denial within the meaning of the proviso to Section 68

of the Evidence Act. But the P.C. decision is, in my

opinion, distinguishable.

12. In the P.C. case both execution & attestation were

expressly not admitted. It was not a case of a mere

general denial of the mtge. The written statement there

was in these terms:

14 AIR 1951 Nag 343

23

“The contesting deft. does not admit the

execution & completion of the document sued

on” & at the trial, the P.C. said

“it was contended on behalf of Lachman Singh

that the execution & ‘due attestation’ of the mtge

bond……had not been proved.”

13. The case is in my opinion different when there is no

specific denial or when the fact of execution is not

specifically not admitted but there is a mere general

denial. As I have said, some meaning must be given to

the words ‘specifically denied’. So also some meaning

must be given to the provisions of O. 8 R. 3 of the CPC

which state that

“It shall not be sufficient for a deft. in his written

statement to deny generally the grounds alleged

by the pltf., but the deft. must deal specifically

with each allegation of fact of which he does not

admit the truth……”

40)In Kannan Nambiar v. Narayani Amma & Ors.

15

, the Division

Bench of the Kerala High Court was considering a suit filed by

daughter of a donee claiming share in the property. The gift deed

was admitted in evidence without any objection. The Court held

that specific denial of execution of gift is an unambiguous and

categorical statement that the donor did not execute the

document. The Court held as under:

“14. Ab initio we have to examine whether there is any

specific denial of the execution of the document, in the

pleadings. Before considering whether there is specific

denial we have to consider what is the exact

requirement demanded when the proviso enjoins a

specific denial. ‘Specific’ means with exactness,

precision in a definite manner (See Webster's 3rd New

International Dictionary). It is clear, that something

more is required to connote specific denial in

juxtaposition to general denial. See Dashrath

Prasad v. Lallosing (AIR. 1951 Nag. 343)

15 1984 SCC OnLine Ker 174 : 1984 KLT 855

24

15. We think that specific denial of execution of gift is

an unambiguous and categorical statement that the

donor did not execute the document. It means not only

that the denial must be in express terms but that it

should be unqualified, manifest and explicit. It should

be certain and definite denial of execution. What has to

be specifically denied is the execution of the document.

Other contentions not necessarily and distinctly

referring to the execution of the document by the

alleged executant cannot be gathered, for the denial

contemplated in the proviso.

xx xx xx

18. The question which elicited the above answer gives

a clear understanding of the case of the defendants as

they understood their case. Defendants have no case

that no document was executed by Anandan Nambiar.

Their case is that the document is not valid because it

had been executed under circumstances which would

render the document invalid. There is no specific denial

of the execution of the document. The respondents can

seek the aid of the proviso to S. 68 of the Evidence Act.

No defect in not calling an attesting witness to prove

the document. We do not think that we can ignore Ext.

A1 gift deed on the ground that no attesting witness

has been called for, for proving the gift deed.”

41)The facts of the present case are akin to the facts which were

before the Kerala High Court in Kannan Nambiar. The appellants

have not denied the execution of the document but alleged forgery

and fabrication. In the absence of any evidence of any forgery or

fabrication and in the absence of specific denial of the execution of

the gift deed in the manner held in Kannan Nambiar, the Donee

was under no obligation to examine one of the attesting witnesses

of the gift deed. As per evidence on record, the Donee was taking

care of the Donor for many years. The appellants were residing in

the United States but failed to take care of their parents.

25

Therefore, the father of the appellants has executed gift deed in

favour of a person who stood by him. We find that there is no error

in the findings recorded by the High Court.

42)Thus, we do not find any error in the judgment of the High Court

which may warrant interference in the present appeal and

accordingly, the appeal is dismissed.

.............................................J.

(L. NAGESWARA RAO)

.............................................J.

(HEMANT GUPTA)

NEW DELHI;

SEPTEMBER 23, 2019.

26