TMI Blog2000 (8) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... aughters 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 Joosa 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf. 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 Joosa Mariyan Fernandez was present there then. 5. 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 Joosa Mariyan 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. 6. It is this part of the testimony which seem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute any document. In executing the documents defendants 1 and 2 forged the signature of their father after influencing the sub-registrar. 9. 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 12. 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. - - TaxTMI - TMITax - Indian Law ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
