Corum-Hon`ble Justice A.P.Misra and Hon`ble Justice Y.K.Sabharwal
ROSAMMAL ISSETHEENAMMAL FERNANDEZ (DEAD) BY LRS. & ORS.
JOOSA MARIYAN FERNANDEZ & ORS.
Suit for partition-Defendant claiming through gift deed-
Plaintiff alleging the document to have been brought fraudulently-Suit decreed by trial court-Execution of gift deed disbelieved-Defendant`s appeal allowed- High Court dismissed plaintiff`s second appeal holding that there was no specific denial by plaintiff and the proviso to Section 68 would apply
Heard learned counsel for the parties.
The short question raised is, whether the High Court
was right to entertain Exhibit B-1 in evidence, in view of
proviso to Section 68 of the Indian Evidence Act.
The short facts are, the appellants filed the suit for
partition of the plaint Schedule property claiming 2/5th
share as parties are Roman Catholic Christians of Latin rite
and as per custom in the community, both daughters and sons
get equal share. The appellant also challenged the
execution of the gift deed Exhibit B-1 and the Settlement
Deed Exhibit B-2. The trial court dismissed the suit with
the finding that the plaintiffs have not proved the
existence of any custom, by which the male and female heirs
share equally to the property of a deceased dying intestate.
The claim of the property is from Jossa Mariyan Fernandez
(deceased). The court held that Jaius Fernandez was not in
a position to execute the documents on the alleged date i.e.
the 12th of November, 1973. Aggrieved by the same, the
appellants filed an appeal. The appellate court, after
permitting to bring on record, two additional documents,
remanded the case back for fresh determination. After
remand the trial court decreed the suit and held that the
custom alleged has been proved and disbelieved the execution
of the said two documents. The respondents appeal by the
appellate court was allowed and the trial court judgment was
set aside. The appellants second appeal was dismissed.
The High Court held the issue of custom has become
irrelevant in view of the decision of this Court that
succession among Christians in Travancore is governed by
Indian Succession Act under which daughter also gets right
to succeed. However, considering the execution of the said
two documents with reference to the gift deed which we are
concerned, in the absence of any of the attesting witness
being examined, the High Court held as there was no specific
denial of this document by the plaintiff hence, proviso to
Section 68 of the Evidence Act will apply.
The High Court records; In fact, in this case there
is no specific denial of the execution of the documents and
it is really a case for setting aside the documents on the
ground of vitiating circumstances and in such a case, it is
difficult to infer a specific denial of the execution of the
documents within the meaning of that proviso.
The finding of the High Court is challenged by the
learned counsel for the appellant. He submits that actually
there is specific denial of the execution of this document
but the High Court has perfunctorily considered this. The
existence of denial is very clear in the pleading itself.
Both the High Court and the appellate court drew this
inference based on the testimony of PW-5. The relevant
portion of the High Court order is quoted hereunder:
Even PW-5 had to admit that he and his brother DW-3
signed in the document on the particular day after the
document was prepared at their office and that Jusa Maryan
Fernandez was present there then.
Similarly, relevant portion of the appellate court
reads as under:
But in cross examination he admitted that Exhibit B-2
is a settlement deed executed by Joos Marian Fernandez and
that the document was also prepared as per the directions of
the executant. DW-3 is the document writer who prepared
both these documents.
It is this part of the testimony which seems to have
favoured the courts to construe that there was no specific
We find the High Court committed error by drawing such
inference. In considering this question, whether there is
any denial or not it should not be casually considered as
such finding has very important bearing on the admissibility
of a document which has important bearing on the rights of
both the parties. In fact the very finding of the High
Court; it is difficult to infer a specific denial of the
execution of the document shows uncertainly and vagueness
in drawing such inference. In considering applicability of
proviso to Section 68 the finding should be clearly specific
and not vaguely or negatively drawn. It must also take into
consideration the pleadings of the parties which has not
been done in this case. Pleading is the first stage where a
party takes up its stand in respect of facts which they
plead. In the present case, we find that the relevant part
of the pleading is recorded in the judgment of the trial
court dated 17th August, 1977 which is the judgment prior to
the remand. The judgment records the pleadings to the
The gift deed No. 1763/73 and settlement deed No.
1764/73 were brought into existence fraudulently without the
knowledge and consent of Jaius Mariyan Fernandus. On the
date of the alleged execution of the above said two
documents Jaius Mariya Fernandus was confined to bed due to
paralysis. At that time he was not in a position to execute
any document. In executing the documents defendants 1 and 2
forged the signature of their father after influencing the
The aforesaid pleading leaves to no room of doubt
about denial of execution of the said documents. The
pleading records, that defendant Nos. 1 and 2 forged the
signature of the father after influencing the sub-registrar.
The denial cannot be more stronger than what is recorded
here. Once when there is denial made by the plaintiff, it
cannot be doubted that the proviso will not be attracted.
The main Part of Section 68 of the Indian Evidence Act puts
an obligation on the party tendering any document that
unless at least one attesting witness has been called for
proving such execution the same shall not be used in
Section 68 of the Indian 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 at
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.
.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 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. The
gift deed accordingly fails and the findings of the High
Court contrary are set aside. In view of this no right
under this document accrue to the concerned respondent over
Schedule A property which is covered by this gift deed.
The High Court order to this extent stand set aside.
The claim of the appellant to the extent of 2/5th share over
Schedule A property succeeds. Accordingly, the present
appeal is partly allowed. Costs on the parties.