TMI Blog2019 (9) TMI 1681X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - 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. 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? - HELD THAT:- 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 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 executio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [for short, 'Evidence Act'] . 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 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 thor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperties 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 and Anr. v. Narayanappa and Ors. (2019) 6 SCC 409. 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 and Anr. AIR 1953 SC 495. The reliance is also placed upon judgment of this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [Parsotam v. Janki Bai, ILR 29 All 354] and the Lahore High Court [Amarnath v. Guran AIR 1918 Lah 394] . This Court in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtition. 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 partition and should be confined to collaterals alone. The reason for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nesses. 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 deceased Chhotabhai Patel and the mother of Plaintiff Nos. 1 to 4 Chanchalben wife of Chhotabhai Ashabhai who had expir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onor 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 and Ors. v. Joosa Mariyan Fernandez and Ors. (2000) 7 SCC 189 and K. Laxmanan v. Thekkayil Padmini and Ors. (2009) 1 SCC 354. 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions 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. AIR 1964 SC 538, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '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 Order 8 Rule 3 of the Code of Civil Procedure 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 and Ors. 1984 SCC OnLine Ker 174 : 1984 KLT 855, 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 sp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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