ROSAMMAL ISSETHEENAMMAL FERNANDEZ (DEAD) BY LRS. AND ORS.versusJOOSA MARIYAN FERNANDEZ AND ORS.

A           ROSAMMAL ISSETHEENAMMAL FERNANDEZ (DEAD)
                         BY LRS. AND ORS.
                                             v.
                    JOOSA MARIYAN FERNANDEZ AND ORS.

                                    AUGUST 9, 2000
B
                     [A.P. MISRA AND Y.K. SABHARWAL, JJ.]


          Indian Evidence Act, 1872 :

          S.68, proviso-Suit.for partition-Defendant claiming through gift deed-
c   Plaintiff alleging the document to have been brought fraudulently-Suit de-
    creed by trial court-Execution of gift deed disbelieved-Defendant's appeal
    allowed-High Court dismissed plaintiff~· second appeal holding that there
    was no specific denial by plaintiff and the proviso to s.68 would apply-Held,
    High Court erred in drawing the inference-There is a clear denial by the
D   plaintiff of execution of the document-None of attesting witness examined-
    Execution of gift deed not proved-In view of non-compliance of s.68, gift deed
    could not be tendered in evidence-Plaintiff has succes~:fully challenged its
    execution-No right accrued to defendant under the said gift deed-Findings
    recorded by High Court to the contrary set aside.

E         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3037of1991.

          From the Judgment the Order dated 20.7.90 of the Kerala High Court in
    S.A. No. 901 of 1983-G.

          G. Vishwanatha Iyer and M.A. Firoz for the Appellants.

F         S. Padmanabhan and G. Prakash for the Respondents.

          The following Order of the Court was delivered :

          Heard learned counsel for the parties.

          The short question raised is, whether the High Court was right to entcr-
G   tain Exhibit B-1 in evidence, in view of proviso to Section 68 of the Indian
    Evidence Act.

           The short facts are, the appellants filed the suit for partition of the plaint
    Schedule property claiming 2/Sth share as parties arc Roman Catholic Chris-
    tians of Latin rite and as per custom in the community, both daughters and sons
H   get equal share. The appellant also challenged the execution of the gift deed
                                            336
                     R.l. FERNANDEZ v. J.M. FERNANDEZ                         337
Exhibit B-1 and the Settlement Oeed Exhibit B-2. The trial court dismissed the        A
suit with the finding that the plaintiffs have not proved the existence of any
custom, by which the male and female heirs share equally to the property of
a deceased dying intestate. The claim of the property is from Jossa Mariyan
Fernandez (deceased). The court held that Jaius Fernandez was not in a position
 to execute the documents on the alleged date i.e. the 12th of November, 1973.
                                                                                      B
Aggrieved. by the samt:, the appellants filed an appeal. The appellate court, after
permitting to bring on record, two additional documents, remanded the case
back for fresh determination. After remand the trial court decreed the suit and
held that the custom<}lleged has been proved and disbelieved the execution of
the said two documents. The respondents' appeal by the appellate court was
allowed and the trial--court judgment was set aside. The appellant's second           c
appeal was dismissed. The High Court held the issue of custom has become
irrelevant in view of the decision of this Court that succession among Chris-
tians in Travancore is governed by Indian Succession Act under which daugh-
ter also gets right to succeed. However, considering the execution of the said
two documents with reference to the gift deed which we are concerned, in the          D
absence of any of the attesting witness being examined, the High Court held
as there was no specific denial of this document by the plaintiff hence, proviso
to Section 68 of the Evidence Act will apply.

      The High Court records;
                                                                                      E
               "In fact, in this case there is no specific denial of the execution
          of the documents and it is really a case for setting aside the documents
        · on the ground of vitiating circumstances and in such a case, it is
          difficult to infer a specific denial 0f the execution of the documents
          within the meaning of that proviso."
                                                                                      F
The finding of the High Court is challenged by the learned counsel for the
appellant. He submits that actually there is specific denial of the execution of
this document but the High Court has perfunctorily considered this. The ex-
istence of denial is very clear in the pleading itself. Both the High Court and
the appellate court drew this inference based on the testimony of PW-5. The
relevant portion of the High Court order is quoted hereunder:                         G
              "Even PW-5 had to admit that he and his brother DW-3 signed in
         the document on the particular day after the document was prepared
         at their office and that Jusa Mary an Fernandez was present there then."

      Similarly, relevant portion of the appeilate court reads as under:              H
    338                  SUPREME COURT REPORTS                [2000] SUPP. 2 S.C.R.
A                 "But in cross examination he admitted that Exhibit B-2 is a
             settlement deed executed by Joosa Marian Fernandez and that the
             document was also prepared as per the directions of the executant.
             DW-3 is the document writer who prepared both these documents."

          It is this part of the testimony which seems to have favoured the courts
B   to construe that there was no specific denial.

            We find the High Court committed error by drawing such inference. In
    considering this question, whether there is any denial or not it should not be
    casually considered as such finding has very important bearing on the admis-
    sibility of a document which has important bearing on the rights of both the
c   parties. In fact the very finding of the High Court; "it is difficult to infer a
    specific denial of the execution of the document" shows uncertainty and vague-
    ness in drawing such inference. In considering applicability of proviso to
    Section 68 the finding should be clearly specific and not vaguely or negatively
    drawn. It must also take into consideration the pleadings of the parties which
D   has not been done in this case. Pleading is the first stage where a party takes
    up its stand in respect of facts which they plead. In the present case, we find
    that the relevant part of the pleading is recorded in the judgment of the trial
    court dated 17th August, 1977 which is the judgment prior to the remand.

           The judgment records the pleadings to the following effect:
E
                   "The gift deed No. 1763173 and settlement deed No. 1764/73 were
              brought into existence fraudulently without the knowledge and con-
              sent of Jaius Mariyan Fernandus. On the date of the alleged execution
              of the above said two documents Jaius Mariya Fernandus was confined
              to bed due to paralysis. At that time he was not in a position to execute
F             any document. In executing the documents defendants 1 and 2 forged
              the signature of their father after influencing the sub-registrar."

             The aforesaid pleading leaves to no room of doubt about denial of
     execution of the said documents. The pleading records, that defendant Nos. I
      and 2 forged the signature of the father after influencing the sub-registrar. The
G    denial cannot be more stronger than what is recorded here. Once when there
      is denial made by the plaintiff, it cannot be doubted that the proviso will not
      be attracted. The main part of Section 68 of the Indian Evidence Act puts an
      obligation on the party tendering any document that unless at least one attesting
    . witness has been called for proving such execution the same shall not be used
H     in evidence.
                     R.l. FERNANDEZ v. J.M. FERNANDEZ                        339
              "Section 68 of the Indian Evidence Act;                                A
              "68. Proof of execution of document required by law to be at-
         tested:- 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        B
         evidence;

              Provided that it shall not be necessary to call at attesting witness
         in proof of the execution of any, document, not being a will, which has
         been registered in accordance with the provisions of the Indian Reg-
         istration Act, XVI of 1908 unless its execution by the person by whom
                                                                                     c
         it purports to have been executed is specifically denied."

       Under the proviso to Section 68 the obligation t0 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, every-       D
thing hinges on the recording of this fact of such denial. If there is no specific
denial, the proviso comes into play but if there is denial, the proviso will not
apply. In the present case as we have held, there is clear denial of the execution
of such document by the plaintiff, hence the High Court fell into error in
applying the said proviso which on the facts of this case would not apply. In
view of this the very execution of the gift deed Exhibit B-1 is not proved.          E
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-compli-
ance of Section 68 of the Indian Evidence Act, we uphold that the plaintiff has
successfully challenged its execution. The gift deed accordingly fails and the
findings of the High Court to be contrary are set aside. In view of this no right    F
under this document accrue to the concerned respondent over Schedule A
property which is covered by this gift deed.

      The High Court order to this extent stand set aside. The claim of the
appellant to the extent of 2/5th share over Schedule A property succeeds.
Accordingly, the present appeal is partly allowed. Costs on the parties.             G
R.P.                                                     Appeal partly allowed.