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 Patel1 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 Patel2.   

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’

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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, 18723.  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’

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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

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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

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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

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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

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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 Das7

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

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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 Court8 and the Lahore High Court9.  This Court in

8  Parsotam v. Janki Bai, ILR 29 All 354 9  Amarnath v. Guran, AIR 1918 Lah 394

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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

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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

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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

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“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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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“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

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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.

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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.

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