GOVINDBHAI CHHOTABHAI PATEL & ORS. versus PATEL RAMANBHAI MATHURBHAI on 23 September 2019

SUPREME COURT REPORTS

[2019] 13 S.C.R.

A

GOVINDBHAI CHHOTABHAI PATEL & ORS.

v.

PATEL RAMANBHAI MATHURBHAI

(Civil Appeal No. 7528 of 2019)

B

SEPTEMBER 23, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Hindu Law – Self-acquired property bequeathed by the fatherin favour of the son – Nature of such property in the hands of theCson – Appellants-plaintiffs are sons of the Donor (since deceased)– During his life time, the Donor purportedly executed gift deed infavour of the defendant-donee – Trial Court recorded finding thatthe property was ancestral – Upheld by the First Appellate Court –High Court held that the property was not ancestral in the hands ofthe Donor and hence, he was competent to execute the gift deed –DOn appeal, held: Admittedly, the grandfather of the appellantspurchased the property, and such self-acquired property came tobe bequeathed by him to the Donor through Will – Thus, thegrandfather of the appellant was competent to execute the Will infavour of any person and since the beneficiary of the Will was hisson (the Donor) thus, in the absence of any intention in the Will,Ebeneficiary would acquire the property as self-acquired property –Appellants stated in the cross-examination that there was familypartition in 1964 between the Donor and his two brothers – Astatement in the cross-examination that there was partition betweenthe Donor and his two brothers will not make the property ancestralFin the hands of the Donor – Burden of proof that the property wasancestral was on the plaintiffs (appellants) alone – It was for themto prove that the Will of their grandfather intended to convey theproperty for the benefit of the family so as to be treated as ancestralproperty – In the absence of any such averment or proof, the propertyin the hands of Donor has to be treated as self-acquired – Once theGproperty in the hands of Donor is held to be self-acquired, he iscompetent to deal with it in manner he considers proper includingby executing gift deed in favour of a stranger to the family – Further,appellants admitted the execution of the gift deed but alleged it tobe forged/fabricated – In the absence of any evidence of forgery/

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GOVINDBHAI CHHOTABHAI PATEL & ORS. v. PATELRAMANBHAI MATHURBHAI

fabrication and specific denial of the execution of the gift deed, theDonee was under no obligation to examine one of the attestingwitnesses of the gift deed – As per evidence on record, the Doneewas taking care of the Donor for many years – Appellants wereresiding in the United States but failed to take care of their parents – Therefore, the father of the appellants executed gift deed in favourof a person who stood by him – No error in the findings recordedby the High Court– Transfer of Property Act, 1882– s.123 – IndianSuccession Act, 1925 – s.63 – Evidence Act, 1872 – s.68 – Code ofCivil Procedure, 1908 – s.100 and Or. VI, r.4.

Evidence Act, 1872 – s.68 – Appellants-plaintiffs are sons ofthe Donor (since deceased) – During his life time, the Donorpurportedly executed gift deed in favour of the defendant-donee –Trial Court recorded finding that the property was ancestral –Upheld by the First Appellate Court – High Court held that theproperty was not ancestral in the hands of the Donor and hence,he was competent to execute the gift deed – Held: s.68 makes itmandatory to examine one of the attesting witnesses for the purposeof proving of the execution of Will but such limitation is notapplicable in respect of proof of execution of any document whichhas been registered in accordance with provisions of the 1908 Act,unless the execution is specifically denied – In the present case, theentire reading of the plaint does not show that there was any specificdenial of execution of the gift deed – Thus, in view of the absenceof specific denial of the execution of the gift deed, the Donee wasunder no obligation to examine one of the attesting witnesses of thegift deed– Indian Registration Act, 1908.

Dismissing the appeal, the Court

Conclusion

Dismissing the appeal, the Court

HELD: 1.1 PW-1 has stated, vide Exhibit 34, that theproperty in question was purchased by his grandfather and afterdeath of his grandfather, property was owned by the Donoraccording to the inheritance since 1952-1953. The appellantsstated in the cross-examination that there was family partition inthe year 1964 between the Donor and his two brothers. It is,thus, sought to be argued that since the property was partitionedin 1964, therefore, the Donor has acquired the property not asself-acquired property but as ancestral property. A statement inthe cross-examination that there was partition between the Donor A

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Aand his two brothers will not make the property ancestral in thehands of Donor. The Will executed by the father of Donor has notbeen produced by the appellants to show as to what was intendedby 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 DonorBeven as per the judgment relied upon by the Appellant. Thegrandfather of the appellants 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 ofany intention in the Will, beneficiary would acquire the propertyCas self-acquired property in terms of C.N. Arunachala Mudaliarcase. The burden of proof that the property was ancestral was onthe plaintiffs alone. It was for them to prove that the Will intendedto convey the property for the benefit of the family so as to betreated as ancestral property. In the absence of any such avermentor proof, the property in the hands of Donor has to be treated asDself-acquired property. Once the property in the hands of Donoris held to be self-acquired property, he was competent to dealwith his property in such a manner he considers as properincluding by executing a gift deed in favour of a stranger to thefamily. A gift deed is required to be compulsorily attested in termsEof Section 123 of the Transfer of Property Act, 1882. Similar isthe provision in respect of execution of a Will which is requiredto be attested in terms of Section 63 of the Indian SuccessionAct, 1925. Section 68 of the Evidence Act makes it mandatory toexamine one of the attesting witnesses for the purpose of provingof the execution of Will but such limitation is not applicable inFrespect of proof of execution of any document which has beenregistered in accordance with provisions of the IndianRegistration Act, 1908, unless the execution is specifically denied.[Paras 10, 11, 21 and 24][160-E-G; 166-F-H; 167-A, E-F]

1.2 The appellants refer to Will dated December 3, 2001Gsaid to be executed by the Donor in their favour. But no issuehas 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 saidto be proved. [Para 28][170-C]H

1.3 Though the learned Trial Court has discussed theevidence on record but in view of the finding that the property isancestral, no finding was recorded whether the gift deed is forgedor not as per the issue framed. The First Appellate Court in ashort judgment affirmed the finding of the learned Trial Court.The Trial Court has not returned any finding that the gift deed isforged. Therefore, the High Court was within its jurisdiction todecide the Issue No.1 on the basis of evidence led by the parties.The entire reading of the plaint does not show that there was anyspecific denial of execution of the gift deed. [Paras 30, 31][171-E-G]

1.4 Order VI Rule 4 of the Code of Civil Procedure, 1908warrants that in all cases in which allegation of anymisrepresentation, fraud, breach of trust, wilful default, or undueinfluence, the necessary particulars are required to be stated inthe pleadings. The appellants went to trial on the basis offabrication of gift deed. The appellants have admitted the giftdeed but alleged the same to be forged or fabricated. However,the appellants have not been able to prove any forgery in theexecution of the gift deed. [Paras 36, 38][173-D-G]

1.5 The facts of the present case are akin to the facts whichwere before the Kerala High Court in Kannan Nambiar. Theappellants have not denied the execution of the document butalleged forgery and fabrication. In the absence of any evidence ofany forgery or fabrication and in the absence of specific denial ofthe execution of the gift deed in the manner held in KannanNambiar, the Donee was under no obligation to examine one ofthe attesting witnesses of the gift deed. As per evidence on record,the Donee was taking care of the Donor for many years. Theappellants were residing in the United States but failed to takecare of their parents. Therefore, the father of the appellantsexecuted gift deed in favour of a person who stood by him. Thereis no error in the findings recorded by the High Court. Thus, noerror found in the judgment of the High Court which may warrantinterference in the present appeal. [Paras 41, 42][176-B-E]

Shyam Narayan Prasad v. Krishna Prasad & Ors. (2018)7 SCC 646 : [2018] 5 SCR 36 – distinguished.

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ARosammal Issetheenammal Fernandez (Dead) by LRs& Ors. v. Joosa Mariyan Fernandez & Ors. (2000) 7SCC 189 : [2000] 2 Suppl. SCR 336; K. Laxmanan v.Thekkayil Padmini & Ors. (2009) 1 SCC 354 : [2008]16 SCR 1117 – held inapplicable.

BC.N. Arunachala Mudaliar v. C.A. MuruganathaMudaliar & Anr. AIR 1953 SC 495 : [1954] SCR 243– relied on.

Dashrath Prasad Bajooram v. Lallosingh Sanmansingh& Anr. AIR 1951 Nag 343; Kannan Nambiar v.CNarayani Amma & Ors. 1984 KLT 855 – approved.

Thulasidhara & Anr. v. Narayanappa & Ors. (2019) 6SCC 409; Jugmohan Das v. Sir Mangal Das (1886)I.L.R. 10 Bom 528; Parsotam v. Janki Bai, ILR 29 All354; Amarnath v. Guran, AIR 1918 Lah 394; PulavarthiDVenkata Subba Rao & Ors. v. Valluri Jagannadha Rao(deceased) by his Heirs & LRs & Ors. AIR 1967 SC591 : [1964] SCR 310; Badat and Co. Bombay v. EastIndia Trading Co. AIR 1964 SC 538 : [1964] SCR 19– referred to.

Case Law Reference

GOVINDBHAI CHHOTABHAI PATEL & ORS. v. PATELRAMANBHAI MATHURBHAI

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7528of 2019.

From the Judgment and Order dated 05.09.2018 of the High Courtof Gujarat at Ahmedabad in Second Appeal No. 211 of 2018

Mukul Rohatgi, Sr. Adv., A. R. Gupta, Aditya Gupta, Ms. DevanshiPopat and Prateek K Chadha, Advs. for the Appellants.

Nakul Dewan, Sr. Adv., Pradhuman Gohil, Mrs. Taruna SinghGohil, Ms. Ranu Purohit and Shiva P., Advs. for the Respondent.

The Judgment of the Court was delivered by HEMANT GUPTA, J.

1. Leave granted.

2. The order passed by the High Court of Gujarat on September5, 2018 in second appeal is the subject matter of challenge in the presentappeal on behalf of the plaintiffs-appellants.

3. The appellants are sons of Chhotabhai Ashabhai Patel[1] whodied on December 6, 2001. During his life time, he purportedly executeda gift deed dated November 15, 1977 in favour of defendant RamanbhaiMathurbhai Patel[2].

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

(i) Whether the plaintiffs prove that the disputed gift deed isfabricated?

(ii) Whether the plaintiffs prove that the suit properties areancestral properties and late Chhotabhai Ashabhai had no right to executethe 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 therelief as prayed for?

(v) Whether the defendant proves that the plaintiffs have no rightto file the present suit?

(vi) What order and decree?

1 for short, ‘Donor’

2 for short, ‘Donee’

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5. The High Court framed five substantial questions of law andafter giving findings on such substantial questions of law, the judgmentand decree passed by the learned Trial Court on February 10, 2014 andthe judgment and decree passed by the First Appellate Court on October9, 2017 were set aside.

B6. The findings recorded by the High Court, inter alia, are thatexecution of the gift deed was not specifically denied in the suit filed.Therefore, it is not necessary for the Donee to examine one of theattesting witnesses in terms of proviso to Section 68 of the IndianEvidence Act, 1872[3]. It is also held that the suit property is not ancestralproperty. The property was purchased by Ashabhai Patel, father of theCDonor and it is by virtue of Will executed by Ashabhai Patel, propertycame 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 datedNovember 15, 1977 as the property was not ancestral in the hands ofDonor. The relevant findings on such questions which arose forDconsideration in the second appeal, read as under:

“92. Once again, at the cost of repetition, I state that Section 68of the Evidence Act has been thoroughly misconstrued by theCourts below. The occasion for applying the rule of exclusionfrom evidence in Section 68 arises when a party seeking to relyEupon a document requiring attestation, fails to prove it in a givenmanner. As observed by me earlier, the party will then not be ableto use it as evidence. But this procedural disability against use ofa document as evidence cannot by any stretch be regarded as anaffirmative finding that the grounds of attack for avoidance of thedeed as claimed in the original relief or cancellation subsisted.FThe plaintiff cannot succeed relying upon the weakness or a flawin the case set up by the defendant. The law is that the plaintiffcan succeed in the suit only on the strength of his own case.

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105. The case of the plaintiffs is very specific. According to them,the suit properties were purchased by their grandfather and thoseproperties came to be devolved upon their father by Testamentarydisposition 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 G

H3 for short, ‘Evidence Act’

self-acquired property of the father, it falls into the hands of hissons not as coparcenary property, but would devolve on them intheir individual capacity. Where the property is a self-acquiredproperty of the father, it falls into the hands of his son in hisindividual capacity and not as coparcenary property in such caseson’s son cannot claim right in such property.

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108. In view of the above, I hold that the suit properties devolvedupon the father of the plaintiffs could not be said to be coparcenaryproperty. The properties were purchased by the grandfather ofthe plaintiffs, as pleaded and admitted by the plaintiffs themselves.Such self-acquired properties of the grandfather came to bedevolved upon the father of the plaintiffs by way of a ‘will’ i.e.testamentary disposition. In such circumstances, it could be saidthat the properties are self-acquired properties of the father ofthe plaintiffs. The succession would have been in accordancewith Section 8 of the Hindu Succession Act. When the propertiescould be said to be self-acquired properties of the father of theplaintiffs, then the father could have definitely transferred thoseproperties by way of a gift deed.

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114. In view of the above, I hold that the suit properties were self-acquired properties of the father of the plaintiffs, and in suchcircumstances, it was open for the father of the plaintiffs to executethe gift deed in favour of the defendant.”

7. Learned counsel for the appellants submitted that the HighCourt has exceeded its jurisdiction in second appeal as findings recordedby the First Appellate Court were not specifically dealt with. It is, thus,argued that the interference in the second appeal is contrary to judgmentof this Court in Thulasidhara & Anr. v. Narayanappa & Ors.[4]. It isargued that the appellants have produced old revenue record and fromthe documents (Exhibits 107 to 126), the property is proved to be ancestraland such is the finding recorded by the Trial Court and the First AppellateCourt. Such evidence was not controverted by the Donee. It is arguedthat the findings recorded by the High Court that the property devolvedon the Donor by virtue of a Will, therefore, it ceases to be an ancestral 4 (2019) 6 SCC 409

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Aproperty is contrary to the judgment of this Court in C.N. ArunachalaMudaliar v. C.A. Muruganatha Mudaliar & Anr.[5]. The reliance isalso placed upon judgment of this Court in Shyam Narayan Prasad v.Krishna Prasad & Ors.[6] that self-acquired property of a grandfatherdevolves upon his son as ancestral property.

B8. On the other hand, learned counsel for the Donee argued thatthe plaintiffs have failed to prove that the property was ancestral propertyafter admitting that their grandfather has purchased the property andgiven it under Will to their father to the exclusion of other family members.The argument raised by learned counsel for the appellants that the HighCourt has exceeded its jurisdiction by reversing the findings of factCrecorded by the First Appellate Court does not hold good as the veryreasoning recorded has been found to be illegal. It is argued that judgmentin C.N. Arunachala Mudaliar is to the effect that the propertybequeathed or gifted to a son by a Mitakshara father will be treated asself-acquired property in the hands of Donee.

D9. The first and the foremost question required to be examined isas to whether the appellants have proved that the property in the handsof Donor was ancestral property.

10. Govindbhai Chhotabhai Patel (PW-1) has stated, vide Exhibit34, that the property in question was purchased by his grandfatherEAshabhai Patel and after death of his grandfather, property was ownedby the Donor according to the inheritance since 1952-1953. Theappellants stated in the cross-examination that there was family partitionin the year 1964 between the Donor and his two brothers ChimanbhaiPatel and Motibhai Patel. It is, thus, sought to be argued that since theFproperty was partitioned in 1964, therefore, the Donor has acquired theproperty not as self-acquired property but as ancestral property.

11. We find that a statement in the cross-examination that therewas partition between the Donor and his two brothers will not make theproperty ancestral in the hands of Donor. The Will executed by the fatherGof Donor has not been produced by the appellants to show as to whatwas intended by his grandfather when the Will was executed in favourof Donor. It is admitted fact that grandfather purchased the property,thus, such self-acquired property came to be bequeathed to the Donoreven as per the judgment relied upon by the Appellant.

5 AIR 1953 SC 495H6 (2018) 7 SCC 646

6 (2018) 7 SCC 646

5 AIR 1953 SC 495H6 (2018) 7 SCC 646

6 (2018) 7 SCC 646

12. This Court in three Judge Bench in C.N. Arunachala Mudaliarconsidered the question as to whether the properties acquired bydefendant No. 1 under Will are to be regarded as ancestral or self-acquired property in his hands. It is a case where the plaintiff claimedpartition of the property in a suit filed against his father and brother. Thestand of the father was that the house property was the self-acquiredproperties of his father and he got them under a Will executed in theyear 1912. It was held that father of a Joint Hindu family governed byMitakshara law has full and uncontrolled powers of disposition over hisself-acquired immovable property and his male issue could not interferewith these rights in any way. The Court while examining the question asto what kind of interest a son would take in the self-acquired property ofhis father which he receives by gift or testamentary bequest from him, itwas held that Mitakshara father has absolute right of disposition over hisself-acquired property to which no exception can be taken by his maledescendants. It was held that it was not possible to hold that suchproperty bequeathed or gifted to a son must necessarily rank as ancestralproperty. It was further held that a property gifted by a father to his soncould not become ancestral property in the hands of the donee simply byreason of the fact that the donee got it from his father or ancestor.

13. The Court found that such questions have been answered indifferent ways by different High Courts. The Calcutta High Court heldthat properties become ancestral property in the hands of his son as if hehad inherited it from his father but in other High Courts, the question istreated as one of construction to be decided in each case with referenceto its facts as to whether the gifted property was intended to pass to thesons as ancestral or self-acquired property.

14. The Bombay High Court in Jugmohan Das v. Sir MangalDas[7] held that if the son takes by devise, the property continues to beself-acquired in his hands. A man can give away his self-acquired propertyto whomsoever it pleases, including his own sons and that property sogiven would be considered self-acquired in the hands of the donee. TheCourt held as under:

“I now come to the question, whether a son, to whom a fatherleaves his self-acquired property by will, takes the estate by deviseor by descent. This is a most important point, perhaps the mostimportant point in the case. For, if the son takes by devise, the 7 (1886) I.L.R. 10 Bom 528

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property would, in my opinion, continue to be self-acquired in hishands, and a ready means would be afforded by the use of thetestamentary power of checking enforced partitions…

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The principle is now settled beyond question, that under Hindulaw a man may alienate his property to the same extent by a willas 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: “Agift by will is, until revocation, a continuous act of gift up to themoment of death, and does then operate to give the propertydisposed of to the persons designated as beneficiaries. They take,upon the death of the testator, as if he had given the property inhis life-time.”

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A bequest by will, therefore, is a gift made in contemplation ofdeath. It only differs from a gift in the fact that it takes effect at afuture time instead of immediately. But it must clearly be governedand controlled by the general rules regarding gift. Now, there isno doubt that a man can give away self-acquired property towhomsoever he pleases, including his own sons; and there is nodoubt that property so given would be considered self-acquired inthe hands of the donee. It would, therefore, follow that propertygiven by will would equally be self-acquired in the hands of thedevisee.”

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15. Such view of the Bombay High Court was accepted by theAllahabad High Court[8] and the Lahore High Court[9]. This Court in C.N.Arunachala Mudaliar approved the view of the Bombay High CourtFand held as under:

“9. … It was held, therefore, that the father of a joint Hindufamily governed by Mitakshara law has full and uncontrolledpowers of disposition over his self-acquired immovable propertyand his male issue could not interfere with these rights in anyway. This statement of the law has never been challenged sincethen and it has been held by the various High Courts in India, andin our opinion rightly, that a Mitakshara father is not only competentto sell his self-acquired immovable property to a stranger without G

8 Parsotam v. Janki Bai, ILR 29 All 354

9 Amarnath v. Guran, AIR 1918 Lah 394

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the concurrence of his sons [Vide Muddun v. Ram, 6 WR 71] buthe can make a gift of such property to one of his own sons to thedetriment of another [ Vide Sital v. Madho, ILR 1 All 394] ; andhe can make even an unequal distribution amongst his heirs [VideBawa v. Rajah, 10 WR 287].

10. So far the law seems to be fairly settled and there is no roomfor controversy. The controversy arises, however, on the questionas to what kind of interest a son would take in the self-acquiredproperty of his father which he receives by way of gift ortestamentary bequest from him, vis-a-vis his own male issue. Doesit remain self-acquired property in his hands also, untrammeledby the rights of his sons and grandsons or does it become ancestralproperty in his hands, though not obtained by descent, in which hismale issue become co-owners with him?......

11. In view of the settled law that a Mitakshara father has right ofdisposition over his self-acquired property to which no exceptioncan be taken by his male descendants, it is in our opinion notpossible to hold that such property bequeathed or gifted to a sonmust necessarily, and under all circumstances, rank as ancestralproperty in the hands of the donee in which his sons would acquireco-ordinate interest…”

16. Still further, it was held that the father’s gifts are exempt frompartition. The reason for this distinction is that the theory of equalownership between the father and the son in the ancestral property isnot applicable to the father’s gifts at all. The Court held as under:

“12. …But when the father obtains the grandfather’s property byway of gift, he receives it not because he is a son or has any legalright to such property but because his father chose to bestow afavour on him which he could have bestowed on any other personas well. The interest which he takes in such property must dependupon the will of the grantor. A good deal of confusion, we think,has arisen by not keeping this distinction in mind. To find outwhether a property is or is not ancestral in the hands of a particularperson, not merely the relationship between the original and thepresent holder but the mode of transmission also must be lookedto; and the property can ordinarily be reckoned as ancestral onlyif the present holder has got it by virtue of his being a son or A

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descendant of the original owner. The Mitakshara, we think, isfairly clear on this point. It has placed the father’s gifts under aseparate category altogether and in more places than one hasdeclared them exempt from partition. Thus in Chapter I, Section1, Placitum 19 Mitakshara refers to a text of Narada which says:

“Excepting what is gained by valour, the wealth of a wife andwhat is acquired by science which are three sorts of propertyexempt from partition; and any favour conferred by a father.”

B

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15. Another argument is stressed in this connection, which seemsto have found favour with the learned Judges of the Patna HighCourt who decided the Full Bench case [Vide Bhagwat v. Mst.Kaporni, ILR 23 Pat 599] referred to above. It is said that theexception in regard to father’s gift as laid down in placitum 28 hasreference only to partition between the donee and his brothersbut so far as the male issue of the donee is concerned, it stillremains partible. This argument, in our opinion, is not sound. Ifthe 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 inthe same chapter and deals with the identical topic, should not bemade applicable to all cases of partition and should be confined tocollaterals alone. The reason for making this distinction isundoubtedly the theory of equal ownership between the fatherand the son in the ancestral property which we have discussedalready and which in our opinion is not applicable to the father’sgifts at all. Our conclusion, therefore, is that a property gifted bya father to his son could not become ancestral property in thehands of the donee simply by reason of the fact that the donee gotit from his father or ancestor.”

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17. This Court further held that on reading of the Will as a whole,Gthe conclusion becomes clear that the testator intended the legatees totake the properties in absolute rights as their own self-acquired propertywithout being fettered in any way by the rights of their sons andgrandsons.In other words, he did not intend that the property should betaken by the sons as ancestral property. Consequently, the appeal wasallowed and the suit for partition by the son against his father wasHdismissed.

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 ifany of his sons left no son, the sons of his other son would be entitled tothe properties at the end of the life estate. The High Court held that theproperties taken by two sons of Narasimha Rao under Will were theirseparate properties and not ancestral properties as there was no suchintention in the Will. This Court held as under:

“8. The contention of the judgment-debtors was that there weretwo persons who were legatees under the will. They took thevillages not as ancestral properties but as self-acquired properties,and the peshkash payable on these two villages must be dividedbetween them before Section 3(ii), proviso (D) of the Act wasmade applicable. The contention on the side of the decree-holderswas that these properties were held by an undivided Hindu familyand the sons of Narasimha Rao took the properties under the will

as ancestral properties, and the peshkash in respect of the twovillages must be added together for the purpose of the applicationof the said proviso. The High Court held that the properties takenby the two sons of Narasimha Rao under the will, were theirseparate properties and not ancestral properties, as there wereno words to show a contrary intention. The High Court alsoreferred to the conduct of the respondents in partitioning the villagesand held that the property was held not jointly but in definite shares.The High Court, therefore, held that the peshkash in respect ofthe two villages could not be aggregated. The High Court,accordingly, broke up the peshkash in respect of Kalagampudiand the three-fifth share of Pedamamidipalli into two halves andheld that as each son of Narasimha Rao was required to pay onlyhis share, the peshkash paid by them individually did not exceedRs 500 mentioned in proviso (D), and that the judgment-debtorswere, therefore, agriculturists. This part of the case was notchallenged before us by the learned Advocate-General of AndhraPradesh. Indeed, the decision of the High Court is supported byC.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar[(1954) SCR 243], in respect of the character of the property A

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Ainherited by the two sons of Narasimha Rao, and this fundamentalfact could not be questioned…..”

19. Learned counsel for the appellants has referred to ShyamNarayan Prasad. That is a case in which the property in question washeld to be ancestral property by the Trial Court. The plaintiffs thereinBbeing sons and grandson of one of the sons of Gopal Prasad, the lastmale holder was found to have equal share in the property. The questionexamined was whether the property allotted to one of the sons of GopalPrasad in partition retains the character of coparcenary property. It wasthe said finding which was affirmed by this Court. This Court held asunder:

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“12. It is settled that the property inherited by a male Hindu fromhis father, father’s father or father’s father’s father is an ancestralproperty. The essential feature of ancestral property, accordingto Mitakshara Law, is that the sons, grandsons, and great grandsonsof the person who inherits it, acquire an interest and the rightsDattached to such property at the moment of their birth. The sharewhich a coparcener obtains on partition of ancestral property isancestral property as regards his male issue. After partition, theproperty in the hands of the son will continue to be the ancestralproperty and the natural or adopted son of that son will take interestEin it and is entitled to it by survivorship.”

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20. The question examined in the aforesaid case was in respectof status of the property after partition. The said question is not arising inthe present case as it is not a question of partition but testamentarysuccession in favour of the Donee.

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F21. In view of the undisputed fact, that Ashabhai Patel purchasedthe property, therefore, he was competent to execute the Will in favourof any person. Since the beneficiary of the Will was his son and in theabsence of any intention in the Will, beneficiary would acquire theproperty as self-acquired property in terms of C.N. ArunachalaGMudaliar case. The burden of proof that the property was ancestralwas on the plaintiffs alone. It was for them to prove that the Will ofAshabhai intended to convey the property for the benefit of the familyso as to be treated as ancestral property. In the absence of any suchaverment or proof, the property in the hands of Donor has to be treatedas self-acquired property. Once the property in the hands of Donor is H

held to be self-acquired property, he was competent to deal with hisproperty in such a manner he considers as proper including by executinga gift deed in favour of a stranger to the family.

22. The other material question is whether the appellants havespecifically denied the execution of the gift deed in terms of proviso toSection 68 of the Evidence Act, to make it mandatory for the defendantto examine one of the attesting witnesses to prove the Gift deed in hisfavour.

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

“68. Proof of execution of document required by law to beattested- If a document is required by law to be attested, it shallnot be used as evidence until one attesting witness at least hasbeen called for the purpose of proving its execution, if there be anattesting witness alive, and subject to the process of the court andcapable of giving evidence:

Provided that it shall not be necessary to call an attesting witnessin proof of the execution of any document, not being a will, whichhas been registered in accordance with the provisions of the IndianRegistration Act, 1908 (16 of 1908), unless its execution by theperson by whom it purports to have been executed is specificallydenied.”

24. A gift deed is required to be compulsorily attested in terms ofSection 123 of the Transfer of Property Act, 1882. Similar is the provisionin respect of execution of a Will which is required to be attested in termsof Section 63 of the Indian Succession Act, 1925. Section 68 of theEvidence Act makes it mandatory to examine one of the attestingwitnesses for the purpose of proving of the execution of Will but suchlimitation is not applicable in respect of proof of execution of any documentwhich has been registered in accordance with provisions of the IndianRegistration Act, 1908, unless the execution is specifically denied.

25. The gift deed (Ex.104) is registered and that all therequirements of Section 123 of the Transfer of Property Act have beenfulfilled, is the finding of the Trial Court. The learned Trial Court recordedthe 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 A

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Agift deed in favour of the defendant in fully conscious state, it isnecessary as per section – 123 of the Transfer of Property Actthat this gift deed should be signed by the executer in presence ofthe two witnesses that means it should be executed in the presenceof two attesting witnesses. Moreover, it should be proved thatsuch gift deed is registered. Looking to the gift deed at Exh – 104,Bit is an undisputable fact that it is properly registered before theSub Registrar, Padra. It is also an indisputable fact that (1)Bhikhabhai Ramabhai and (2) Karshanbhai Dhulabhai have puttheir signatures in this gift deed as the attesting witnesses. Thus,it is found that all the requirements of section 123 of the TransferCof Property Act have been fulfilled. However, along with this, it isalso necessary to examine the attesting witnesses of the deed.”

26. The argument of the learned counsel for the appellants is thatthe attesting witnesses of the gift deed are Bhikhabhai Ramabhai andKarsanbhai Dhulabhai, whereas Solanki Bhikhabhai Ramabhai and VaidDAlkaben Vinodchandra are the witnesses at the time of registration ofthe document. It is argued that the attesting witnesses of the documenthave not been examined which is a mandatory requirement to proveexecution of the gift deed in terms of Section 68 of the Evidence Act.The High Court has held that the appellants have not denied specificallythe execution of the gift deed, therefore, it was not necessary for theEDonee to examine one of the attesting witnesses.

27. The issue No. 1 framed by the Trial Court is whether the giftdeed is fabricated. Such issue arises on the basis of averments made inthe plaint wherein, the appellants have admitted the execution of the giftdeed but alleged that Donee has made unsuccessful effort for grabbingFthe property. The appellants have, inter alia, pleaded that Chanchalben,wife of the Donor, died in August, 1997. Thus, there was no reason forthe Donor to execute the gift deed as real nephews of the Donor weretaking complete control of the Donor. The other ground of challengewas that the attesting witnesses have no relation with the Donor norGthey are friends of the Donor. It was also alleged that the gift is not forreligious reasons or to any religious trust or institution or for public usenor the consent has been sought by the Donor from the appellants. Thespecific averments in the plaint are as under:

“2) The deceased Chhotabhai Ashabhai who was the father ofplaintiff Nos. 1 to 4 and plaintiff Nos. 1 to 4 were living in USA

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(America) since many years and the deceased Chhotabhai Pateland the mother of plaintiff Nos. 1 to 4 Chanchalben wife ofChhotabhai Ashabhai who had expired in and around August, 1997,and since August, 1997, deceased Chhotabhai Ashabhai was livingalone thus, taking advantage of his loneliness the defendant on15/11/1997 executed one gift deed which was registered in theoffice of Sub-Registrar, Padra at Sr. No. 1004 made unsuccessfulefforts for grabbing the said property thus, the plaintiffs areconstrained to file this suit, on the grounds which are stated asunder:

(a) The deceased Chhotabhai Ashabhai was not in any mannerrelated to the defendant Ramanbhai Mathurbhai.

(b) The deceased Chhotabhai Ashabhai Patel and his wifeChanchalben wife of Chhotabhai Ashabhai Patel were living inAmerica since many years prior to 1997.

(c) Chanchalben the wife of deceased Chhotabhai Ashabhai hadexpired during the period of August, 1997, thus, on 15/11/1997,there was no reason for Chhotabhai to execute the gift deed, notonly that but the real nephews of the deceased ChhotabhaiAshabhai who were living at Ghayaj were taking complete careof deceased Chhotabhai Ashabhai, thus, outside their knowledge,at any time the deceased Chhotabhai had no reason to executedeed.

(d) In the gift deed dated 15/11/1997, the witnesses that havesigned (1) Bhikhabhai Ramabhai and (2) Karshanbhai Dhulabhaiwho were not having any kind of relations with the deceasedChhotabhai Ashabhai and/or they were not even related as hisfriends. There was no reason of making the gift deed in theirpresence.

(e) In the gift deed dated 15/11/1997 the details of the date of theunregistered Will executed by deceased Chhotabhai Ashabhai iskept blank and the date and registration number of the registeredWill is also kept blank, and in this manner, with incomplete detailsthe gift deed is registered which is made hastily which supportsthe facts of the plaintiffs.

(f) In the gift deed dated 15/11/1997 it is clearly evident that thesignature of the deceased Chhotabhai Ashabhai is forged, and in A

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this manner on the basis of the forged signature the gift deed isregistered, in this regard we are constrained to file the presentsuit.

(g) The gift deed dated 15/11/1997 which is contrary to theprovisions of law, therefore, also by such gift deed the defendantBdoes not acquire any rights, interests or claims on the saidproperty…..”

28. The appellants refer to Will dated December 3, 2001 said tobe executed by the Donor in their favour. But no issue has been framedin respect of Will propounded by the appellants. In fact, no attestingCwitness of the Will has been examined. Therefore, the Will relied uponby the appellants cannot be said to be proved.

29. The High Court held that the appellants have not led anyevidence that signature of their father on the gift deed was forged asneither the specimen signature nor writings of their father for the purposeDof comparing the disputed signature on the gift deed have beenattempted. There is no report of an expert in respect of signatures of theDonor on the gift deed nor any request was made for sending thedocument to the Forensic Science Laboratory. The High Court held asunder:

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E“67. In my view, the plaintiffs have miserably failed to prove anyforgery. If it is the case of the plaintiffs that the signature of theirfather on the disputed gift deed is forged, then the burden is onthem to establish and prove by leading cogent evidence that thesignature is forged by another. A mere doubt or assertion or anFallegation of forgery by itself is not sufficient to even prima faciedraw an inference of fraud. The plaintiffs tried to rely upon the‘will’ said to have been executed by their late father just two daysbefore his demise in the year 2001. One of the cousins of theplaintiffs took out the ‘will’ out of the blue and handed over to theplaintiffs. The plaintiffs tried to capitalize on this ‘will’ because inGthe said ‘will’, there is a thumb impression of the father of theplaintiffs i.e. the testator. The plaintiffs thereby tried to create adoubt in the mind of the Courts below that the father was illiterateand was unable to put his signature. However, if the plaintiffswanted to rely upon the ‘will’, they should have produced the H

GOVINDBHAI CHHOTABHAI PATEL & ORS. v. PATELRAMANBHAI MATHURBHAI [HEMANT GUPTA, J.]

original and proved the same in accordance with law by examiningone of the attesting witnesses to the said ‘will’. The ‘will’ has noteven been exhibited, and therefore, there is no question of lookinginto the same. The entire approach of the Trial Court could besaid to be erroneous and has led to a serious miscarriage of justice.I am of the view that the plaintiffs have practically led no evidenceeven to prima facie create a doubt that the signature of theirfather on the gift deed is forged. The plaintiffs could have producedthe specimen signature or writings of their father, if any, for thepurpose of comparing the disputed signature on the gift deed. TheTrial Court could have been asked to seek an opinion of an expertin this regard by sending the document to the Forensic ScienceLaboratory. Nothing of this sort was done. All that has beenasserted in the evidence is that the father had no good reason toexecute the gift deed in favour of the defendant, more particularly,when the sons were taking good care of their father. This hardlycould be termed as evidence with regard to fraud or forgery. Theplaintiffs have not even pleaded or deposed that their father wasilliterate and was not able to put his signature. If the evidence onrecord is looked into, then the plaintiffs have in substance justexpressed doubts as regards the signature of their father.”

30. At this stage, we may reiterate that though the learned TrialCourt has discussed the evidence on record but in view of the findingthat the property is ancestral, no finding was recorded whether the giftdeed is forged or not as per the issue framed. The First Appellate Courtin a short judgment affirmed the finding of the learned Trial Court. TheTrial Court has not retuned any finding that the gift deed is forged.Therefore, the High Court was within its jurisdiction to decide the IssueNo. 1 on the basis of evidence led by the parties.

31. The appellants challenged the gift deed on account ofprobabilities as the witnesses were not related to the family or the friendsor that the gift was not for religious or charitable purposes. The otherchallenge was on the ground of forgery or fabrication. The entire readingof the plaint does not show that there was any specific denial of executionof the gift deed.

32. The appellants have referred to the judgments in RosammalIssetheenammal Fernandez (Dead) by LRs & Ors.v. Joosa Mariyan AB

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AFernandez & Ors.[11] and K. Laxmanan v. Thekkayil Padmini &Ors.[12]. However, we find that both the judgments are not applicable tothe facts of the present case. In Rosammal, the appellant had filed asuit for partition and challenged the execution of the gift deed, settlementdeed and the Will. The High Court found that the execution of the giftBdeed was specifically denied. After finding so, the High Court recordedthe following findings:

“11. Under the proviso to Section 68 the obligation to produce atleast one attesting witness stands withdrawn if the execution ofany such document, not being a will which is registered, is notCspecifically denied. Therefore, everything hinges on the recordingof this fact of such denial. If there is no specific denial, the provisocomes into play but if there is denial, the proviso will not apply. Inthe present case as we have held, there is clear denial of theexecution of such document by the plaintiff, hence the High Courtfell into error in applying the said proviso which on the facts ofDthis case would not apply. In view of this the very execution ofthe gift deed, Exhibit B-1 is not proved. Admittedly in this casenone of the two attesting witnesses has been produced. Once thegift deed cannot be tendered in evidence in view of the non-compliance of Section 68 of the Indian Evidence Act, we upholdEthat the plaintiff has successfully challenged its execution…”33. In the facts of the said case, the High Court found that thereis specific denial of execution of the gift deed, therefore, in the absenceof examining one of the attesting witnesses, the gift deed is not proved.

34. In K. Laxmanan, a suit was filed by daughter claiming estateFof Chathu on the basis of natural succession. The defendant (son ofChathu) 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 wasfound that gift deed was relied upon in the written statement which wasGspecifically denied in the affidavit filed in respect of injunctionapplications. The Court held as under:

“29. Pleadings as we understand under the Code of CivilProcedure (for short “the Code”) and as is defined under the11 (2000) 7 SCC 189H12 (2009) 1 SCC 354

GOVINDBHAI CHHOTABHAI PATEL & ORS. v. PATELRAMANBHAI MATHURBHAI [HEMANT GUPTA, J.]

provision of Rule 1, Order 6 of the Code consist only of a plaintand a written statement. The respondent-plaintiff could have fileda replication in respect to the plea raised in the written statement,which if allowed by the court would have become the part of thepleadings, but mere non-filing of a replication does not and couldnot mean that there has been admission of the facts pleaded inthe written statement. The specific objection in the form of denialwas raised in the affidavits filed in respect of the injunctionapplications which were accepted on record by the trial court andmoreover the acceptance on record of the said affidavit was neitherchallenged nor questioned by the present appellant.”

35. In the abovesaid case, the plaintiff claimed natural successionwhereas the defendant relied upon gift deed. In the aforesaid judgments,it has been held as a matter of fact that there was specific denial ofexecution of gift deed. But in the present case, the appellants came outwith the plea of forgery and fabrication of the gift deed which is basedon different allegations and proof than the proof of document attested.

36. Order VI Rule 4 of the Code of Civil Procedure, 1908 warrantsthat in all cases in which allegation of any misrepresentation, fraud, breachof trust, wilful default, or undue influence, the necessary particulars arerequired 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 writtenstatement must deal specifically with each allegation of fact in the plaintand when a defendant denies any such fact, he must not do so evasivelyand answer the points of substance. If his denial of the said fact is notspecific but evasive, the said fact shall be taken to be admitted.

38. The appellants went to trial on the basis of fabrication of giftdeed. The appellants have admitted the execution of the gift deed butalleged the same to be forged or fabricated. However, the appellantshave not been able to prove any forgery in the execution of the giftdeed.

39. Dashrath Prasad Bajooram v. Lallosingh Sanmansingh& Anr.[14] was dealing with the issue as to whether defendant No. 1

13 AIR 1964 SC 53814 AIR 1951 Nag 343

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Aexecuted the mortgage deed with proper attestation and for consideration.Considering the proviso to Section 68 of the Evidence Act, the Courtheld that word ‘specific’ has to be given some meaning appearing inproviso to Section 68. The Court held as under:

“11. That however raises the question whether a mere generalBdenial of a mtge or not admitting it can be regarded as a specificdenial. It will be observed that the proviso to Section 68 of theEvidence Act speaks of a specific denial. Some meaning must begiven to the word ‘specific’. It must mean something over &above a general denial. Accordingly in my judgment it is notsufficient to have a mere general denial to; attract the provisionsCof S. 68. That was the distinction drawn in ‘Jhillar v. Rajnarain’,AIR (22) 1935 All 781 at p. 784 : (156 IC 45) & in ‘LaehmanSingh v. Surendra Bahadur Singh’, 54 All 1051 at p. 1058 :(AIR (19) 1932 All 527 FB). But those decisions must in myopinion be held to have gone too far in view of the decision ofDtheir Lordships of the P.C. in ‘Surendra Bahadur v. BehariSingh’, AIR (26) 1939 PC 117 : (ILR 1939 KAR 222). In view ofwhat their Lordships have stated it must now be accepted that ifa party specifically says that he does not admit a particular factthat amounts to a specific denial within the meaning of the provisoto Section 68 of the Evidence Act. But the P.C. decision is, in myEopinion, distinguishable.

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12. In the P.C. case both execution & attestation were expresslynot admitted. It was not a case of a mere general denial of themtge. The written statement there was in these terms:

“The contesting deft. does not admit the execution & completionof the document sued on” & at the trial, the P.C. said F

“it was contended on behalf of Lachman Singh that theexecution & ‘due attestation’ of the mtge bond……had notbeen proved.”

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13. The case is in my opinion different when there is no specificdenial or when the fact of execution is not specifically not admittedbut there is a mere general denial. As I have said, some meaningmust be given to the words ‘specifically denied’. So also somemeaning must be given to the provisions of O. 8 R. 3 of the CPCwhich state that H

“It shall not be sufficient for a deft. in his written statement todeny generally the grounds alleged by the pltf., but the deft.must deal specifically with each allegation of fact of which hedoes not admit the truth……”

40. In Kannan Nambiar v. Narayani Amma & Ors.[15], theDivision Bench of the Kerala High Court was considering a suit filed bydaughter of a donee claiming share in the property. The gift deed wasadmitted in evidence without any objection. The Court held that specificdenial of execution of gift is an unambiguous and categorical statementthat the donor did not execute the document. The Court held as under:

“14. Ab initio we have to examine whether there is any specificdenial of the execution of the document, in the pleadings. Beforeconsidering whether there is specific denial we have to considerwhat is the exact requirement demanded when the proviso enjoinsa specific denial. ‘Specific’ means with exactness, precision in adefinite manner (See Webster’s 3rd New InternationalDictionary). It is clear, that something more is required to connotespecific denial in juxtaposition to general denial. See DashrathPrasad v. Lallosing (AIR. 1951 Nag. 343)

15. We think that specific denial of execution of gift is anunambiguous and categorical statement that the donor did notexecute the document. It means not only that the denial must bein express terms but that it should be unqualified, manifest andexplicit. It should be certain and definite denial of execution. Whathas to be specifically denied is the execution of the document.Other contentions not necessarily and distinctly referring to theexecution of the document by the alleged executant cannot begathered, for the denial contemplated in the proviso.

18. The question which elicited the above answer gives a clearunderstanding of the case of the defendants as they understoodtheir case. Defendants have no case that no document wasexecuted by Anandan Nambiar. Their case is that the documentis not valid because it had been executed under circumstanceswhich would render the document invalid. There is no specificdenial of the execution of the document. The respondents can A

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Aseek the aid of the proviso to S. 68 of the Evidence Act. Nodefect in not calling an attesting witness to prove the document.We do not think that we can ignore Ext. A1 gift deed on theground that no attesting witness has been called for, for provingthe gift deed.”

B41. The facts of the present case are akin to the facts whichwere before the Kerala High Court in Kannan Nambiar. The appellantshave not denied the execution of the document but alleged forgery andfabrication. In the absence of any evidence of any forgery or fabricationand in the absence of specific denial of the execution of the gift deed inthe manner held in Kannan Nambiar, the Donee was under no obligationCto examine one of the attesting witnesses of the gift deed. As per evidenceon record, the Donee was taking care of the Donor for many years.The appellants were residing in the United States but failed to take careof their parents. Therefore, the father of the appellants has executedgift deed in favour of a person who stood by him. We find that there isDno error in the findings recorded by the High Court.

42. Thus, we do not find any error in the judgment of the HighCourt which may warrant interference in the present appeal andaccordingly, the appeal is dismissed.

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Divya Pandey

Appeal dismissed.

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