REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.                      OF 2008   (Arising out of SLP(C) No. 21251 of 2006)

K. Laxmanan  ....Appellant

Versus

Thekkayil Padmini & Ors. .... Respondents

J U D G M E N T

Dr. Mukundakam Sharma, J.

1. Leave granted.

2. The Deed of Will  and Gift  are the bone of contention between the

parties in this appeal.  Predecessor-in-interest of the plaintiff and the

fifth defendant is one Shri Chathu who had three daughters and a son.

He died in the year 1975 leaving behind him the aforesaid son and

three daughters and a number of properties.    

3. The  present  appellant  was  the  contesting  defendant  being  the fifth

defendant and is a son of Chathu.  The respondent No. 1 herein is one

of the daughters of Chathu and was the plaintiff in the suit.  The suit

was filed by her after demise of Chathu contending inter alia that the

property left  behind by Chathu devolved upon the plaintiff  and the

defendants equally and therefore they are entitled to one fourth share

each.  In the plaint, suit property was mentioned as item Nos. 1 to 12.

Subsequently, plaintiff also incorporated Item Nos. 13 and 14 in the

plaint for division.

4. In the written statement filed by the present appellant, he stated that

items  1  to  3  in  the  plaint  schedule  property  were  assigned  in  his

favour by virtue of a document Ext. B1 and items 13 and 14 were

assigned in his favour by virtue of Ext. B4.  It was his further case

that his father Chathu had executed a gift  deed on 26.04.1974, Ext.

B2, in his favour with respect to items 4 and 5.  Also, that his father

Chathu had bequeathed properties being item Nos. 6 to 8 and 10 to 12

by executing  a  Will  in  his  favour  on  the  same  day.   It  was  also

pleaded  that  in  the  Will  item No.  9  was  set  apart  to  the  share  of

daughters and therefore the properties described as items 1 to 8 and

10 to 13 are not available for division.

5. It was held by the Trial Court that Ext. B2 which is a gift deed and

Ext.  B3  which  is  a  deed  of  Will  had  been  properly  proved  by

defendant     No. 5- appellant herein and therefore, in terms of Ext. B3

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Will, the only item available for division is item No. 9 of the plaint

schedule property.

6. As against the said judgment and order passed by the Trial Court an

appeal  was  preferred  by  the  plaintiff.   The  Appellate  Court  after

hearing the parties passed the judgment and order holding that items 1

to  3  and  13  to  14  are  not  available  for  division  which  are  the

properties covered by Ext. B1 and B4.  However, so far as the other

properties are concerned which are covered by Ext. B2 and B3, the

Deed  of  Gift  and  Deed  of  Will,  it  was  held  that  the  entire  items

mentioned therein are available for division.

7.   Being aggrieved by the said decision, a second appeal was filed by

the fifth defendant,  which was heard by the High Court  of  Kerala.

The  High  Court,  however,  dismissed  the  second  appeal  by  the

impugned judgment and order which is under challenge in this appeal.

8. It was held by the High Court that execution of both the Deed of Will

as also Deed of Gift are shrouded in mystery and therefore it is the

responsibility  of  the  fifth  defendant  to  dispel  the  suspicious

circumstances by adducing satisfactory evidences.  After appreciation

of the  materials  available  on record,  it  was held that  the Appellate

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Court was legal and justified in coming to a conclusion regarding the

suspicious circumstances pertaining to execution of the Will and also

execution of the Deed of Gift and that the fifth defendant has failed to

discharge the onus.   

9. Narration  of  the  aforesaid  facts  would  thus  clearly  establish  that

execution  of  the  Gift  Deed  and  also  of  the  Will  are  held  to  be

suspicious and the genuineness of the same was doubted by the first

appellate court as also by the High Court.  That the appellant failed to

dispel  the  suspicious  circumstances  by  adducing  satisfactory

evidences, was held, mainly on the ground that the attesting witnesses

to both the documents were not examined.

10.Counsel appearing for the appellant by referring to the provision of

Section  68  of  the  Indian  Evidence  Act,  1872  (for  short  ‘the  Act’)

submitted before us that examination of at least one of the attesting

witnesses is mandatory only in the case of proving a Will and not in

respect of proving any other document like Gift Deed and therefore,

both the two appellate courts namely the First Appellate Court as also

the High Court were not justified in placing the onus of proving both

the documents on the appellant.  He also submitted that a registered

Gift  Deed  need  not  be  proved  by  examining  an  attesting  witness

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inasmuch as the plaintiff admitted execution of the gift deed by not

specifically denying execution of the said gift deed in his pleadings.

11.He also submitted that even in respect of the Will, sufficient, strong

and  cogent  reasons  have  been  furnished  by  the  appellant  for  his

inability to examine the attesting witnesses which should have been

accepted  as  a  valid  reason  and  by  accepting  the  same  both  the

appellate courts should have held that both the Deed of Will as also

the  Deed  of  Gift  are  genuine  and validly  executed  documents  and

should have dismissed the suit of the plaintiff in toto.

12. The aforesaid submissions of the counsel appearing for the appellant

were  however  refuted  by the  counsel  appearing  for  the  respondent

contending inter alia that Ext. B2 i.e. Gift Deed as also Ext. B3 i.e. the

Deed of Will had not been proved as per Section 68 of the Act to be

used  as  evidence  in  any  court  of  law,  and  therefore,  both  the

Appellate Courts  were justified in holding that  the same cannot be

accepted as evidence in the present case.  It was further submitted by

him that the execution of the Gift Deed was specifically denied by the

respondent/plaintiff.   

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13.Having mentioned the factual position and arguments advanced by the

counsel appearing for the parties, we may now analyse the said factual

position  in  the  light  of  the  legislative  provisions,  judicial

interpretation and evidence on record.  

14.In the plaint, the respondent/plaintiff has pleaded that on the death of

the  Chathu,  who  is  predecessor-in-interest  of  both  plaintiff  and

contesting  fifth  defendant,  the  properties  left  behind  by  him  have

devolved upon the plaintiff and defendants equally and therefore each

one of them is entitled to one fourth share.  The properties that were

incorporated in the schedule of the plaint are items 1 to 14.  

15.In the written statement filed by the contesting defendant No. 5 who is

the present appellant and son of Chathu, it was claimed that items 1 to

3 in the plaint schedule property were assigned to him by virtue of a

document Ext. B1 and items 13 and 14 were assigned in his favour by

virtue of Ext. B4.  It was his further case that his father had executed a

Gift Deed Ext. B2 in his favour with respect to items 4 and 5, and

thereafter  on the very same day had executed  a Will  in his  favour

bequeathing properties in items 6 to 8 and 10 to 12.  He however,

pleaded  that  in  the  Will,  item 9  was  set  apart  to  the  share  of  the

daughters and therefore the properties described as items 1 to 8 and

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10 to 13 are not available for division.  No replication was filed by the

plaintiff as against the aforesaid averments.   

16.On the  pleadings  of  the  parties,  eight  issues  were framed.   Parties

went to trial and adduced their evidence to prove and establish their

respective cases.  The Trial Court  on consideration of the materials

held that properties i.e. items 1 to 3, 13 and 14 are not available for

division.   Those  properties  were  covered  by  Ext.  B1  and  B4.   In

respect  of  Ext.  B2  and  B3,  the  Trial  Court  held  that  the  said

documents have been duly proved and therefore only item available

for division is item No. 9 of the plaint schedule property.

17. An  appeal  was  preferred  by  the  plaintiff  against  the  aforesaid

decision.  The appellate court by its judgment held that items 1 to 3,

13 and 14 are not available for division which are covered by Ext. B1

and B4.  So far as it relates to properties covered by Ext. B2 and B3,

the appellate  court  held that  the  entire items mentioned therein are

available for division.  

18.It  is  only  as  against  the  judgment  and  findings  that  the  items  of

property covered by Ext. B2 and B3 are available for division that the

second appeal was preferred by the fifth defendant in the High Court

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of  Kerala.   Therefore,  the  properties  covered  by  Ext.  B1  and  B4

namely items  1  to  3,  13  and  14  are  no  longer  in  dispute  and  the

conclusions arrived at by the first appellate court that the said items

are not available for division are final and binding on the parties.

19.What  is  in  dispute  and  is  open  to  further  litigation  are  only  the

properties covered by Ext. B2 and B3 which were held by both the

appellate courts to be available for division.  Since we are concerned

with  the  legality  of  execution  of  Deed  of  Will  and  Deed  of  Gift,

Section 68 of  the Act  would  have some relevance,  which reads as

follows:-

“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.”

20.Strong  reliance  was  placed  on  this  provision  also  by  the  learned

counsel  appearing for  the parties.   A bare  reading  of  the  aforesaid

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provision will make it crystal clear that so far as a Deed of Will is

concerned, the position in law is no longer in doubt for the onus of

proving the Will is on the propounder.  The propounder has to prove

the  legality  of  the  execution  and  genuineness  of  the  said  Will  by

proving  absence  of  suspicious  circumstances  surrounding  the  said

Will and also by proving the testamentary capacity and the signature

of the testator.   Once the same is  proved,  it  could be said that the

propounder has discharged the onus.

21.When there are suspicious circumstances regarding the execution of

the Will, the onus is also on the propounder to explain them to the

satisfaction  of  the  Court  and  only  when  such  responsibility  is

discharged, the Court would accept the Will as genuine.  Even where

there are no such pleas, but circumstances give rise to doubt, it is on

the propounder  to  satisfy the  conscience  of  the  Court.   Suspicious

circumstances  arise  due  to  several  reasons  such  as  with  regard  to

genuineness  of  the  signature  of  the  testator,  the  conditions  of  the

testator’s  mind,  the  dispositions  made in  the  Will  being  unnatural,

improbable or unfair in the light of relevant circumstances or there

might be other indications in the Will to show that the testator’s mind

was not free.  In such a case, the Court would naturally expect that all

legitimate  suspicion  should  be  completely  removed  before  the

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document is accepted as the last Will of the testator.  The aforesaid

view is taken by us in consonance with the decision of this Court in

Shashi Kumar Banerjee v. Subodh Kumar Banerjee [AIR 1964 SC

529]  and  Pushpavathi v.  Chandraraja  Kadamba [(1973)  3  SCC

291].   

22.So far as Section 68 of the Act is concerned, it categorically provides

that a Will is required to be attested and therefore, it cannot be used as

evidence until at least one of the attesting witnesses is called for the

purpose of  proving its  execution provided such attesting witness is

alive, and subject to the process of the court  and capable of giving

evidence.  

23.In the present case the scribe and one of the attesting witnesses to the

Will  namely  Vasu  died  before  the  date  of  examination  of  the

witnesses.  The second attesting witness namely Gopalan was also not

in good physical condition inasmuch as neither was he able to speak

nor was he able to move, the fact which is proved by the deposition of

the doctor examined as DW 2.  Consequently, as the execution of the

Will cannot be proved by leading primary evidence, the propounder

i.e. the appellant herein was required to lead secondary evidence in

order to discharge his onus of proving the Will as held by this Court

to be permissible in Daulat Ram v. Sodha   [(2005) 1 SCC 40].

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24.The  only  evidence  led  by  appellant  -  propounder  to  prove  the

execution of the Will was by examining DW-4, the son of attesting

witness Moolampalli Gopalan and by examining Kolayath Mammed

who  was  an  identifying  witness  to  Ext.  B3  Will.   DW-4  though

deposed that the signatures of attesting witness on Ext. B3 are of his

father but, however, he did not state that his father was an attesting

witness in respect of Ext. B3.  On the other hand DW 3 stated that

though he knew deceased Chathu but on that day he went to the office

of the sub-Registrar as an identifying witness for someone else.  In his

entire deposition there was not even a slightest indication to the fact

that he had witnessed the execution of Ext. B3.   

25.Moreover,  no  attempt  was  made  by  the  appellant  to  prove  and

establish the mental and physical condition of the testator at the time

of  execution.   Rather  the  respondent  has  proved  that  Chathu,  the

father of the appellant, was at the time of the alleged execution of the

Deed of Will was 82 years of age and he was suffering from serious

physical ailments and was not mentally in a good state of mind.   

26.As against the said evidence led, the evidence led by the appellant

cannot  be  said  to  be  sufficient  to  satisfy  the  Court  regarding  the

genuineness and valid execution of the Will.  It was also found as a

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matter  of  fact  by the  two appellate  courts  that  there  was  ocean  of

difference between the signatures of Chathu put on each and every

page. In view of the aforesaid suspicious circumstances brought on

record regarding the execution of the Will and the same having not

been  proved  in  accordance  with  law,  we find  no  reason  to  take  a

different view than what is taken by the first appellate court as also by

the High Court so far as it concerns the Deed of Will.    

27.This leaves us with the responsibility of considering the legality of

execution of the Deed of Gift.  Incidentally, the said Deed of Gift was

also executed on the same day as that of the Will which was held to

be  not  proved  and  established  in  accordance  with  law  and  was

discarded by both the appellate courts.  

28.Execution of the aforesaid Deed of Gift is also under challenge.  The

attesting witnesses to the said Deed of Gift are also not examined.  It

was,  however,  submitted  that  the  mandatory  requirement  of

examining an attesting witness under section 68 of the Act is only in

respect of a Will and in respect of Gift Deed, if execution of the said

is not specifically denied, then in that case there is no obligation on

the part of the propounder of the Deed of Gift to prove the execution

by examining an attesting witness like that of a Deed of Will.    

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29.It is true that in the present case the pleadings regarding the execution

of  the  Deed  of  Gift  were  stated  for  the  first  time  in  the  written

statement  by  the  fifth  defendant,  who  pleaded  that  the  ordinary

process of inheritance and succession would not apply in the present

case in respect of properties in item 4 and 5 as a Deed of Gift was

executed in his favour.

30.It is however established in the present case that the issue of validity

of the execution of both the Deed of Gift and Deed of Will was taken

up by the respondent/plaintiff and specifically denied in the affidavits

filed in respect of the injunction applications.  The parties have also

gone  to  trial  knowing  fully  well  that  execution  of  both  these

documents is  under  challenge.   Parties  knowing fully the  aforesaid

factual  position led their evidence also to establish the legality and

validity of both the documents.  In that view of the matter, it cannot

be said that the said document should be deemed to be admitted by

the plaintiff as no replication was filed by the plaintiff.

31.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 VI of the Code consist only of a plaint and a written statement.

The respondents/plaintiff could have filed a replication in respect to

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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  was  raised  in  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.

32.The  legality  and  the  validity  of  the  said  Deed  of  Gift  was  under

challenge  in  the  trial  for  which  the  parties  have  led  evidence  and

therefore in the present case the proviso to Section 68 of the Act does

not become operative and functional.  In such cases, the document has

to be proved in terms of Section 68 of the Act.  In this regard, we may

appropriately  refer  to  decision  of  this  Court  in  Rosammal

Issetheenammal  Fernandez  (Dead)  by  Lrs.  And  Ors. v.  Joosa

Mariyan Fernandez and Ors.  [(2000) 7 SCC 189], wherein it was

held as under:-

7.………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 admissibility of a document which has  important  bearing  on  the  rights  of  both  the parties…..It  must also take into consideration the pleadings of the parties which has not been done in this case.  Pleading is the first stage where a party

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takes  up its  stand in  respect  of  facts  which  they plead………

        x x x x x

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.  …….”

33.The two attesting witnesses to the said Deed of Gift viz. Ext. B2 are

K.T. Vasu and Urulummal Ukkappan.  K.T. Vasu admittedly had died

whereas  Urulummal  Ukkappan  was  alive.   Urulummal  Ukkappan

being alive could have been examined in the present case to establish

the legality of the Deed of Gift.  But neither was he examined nor any

reason was assigned by the appellant for not examining him.

34.Since both the attesting witnesses have not been examined, in terms

of Section 69 of the Act it was incumbent upon the appellant to prove

that  the  attestation  of  one  attesting  witness  at  least  is  in  his

handwriting  and  that  the  signature  of  the  person  executing  the

document is in the handwriting of that person.  DW 3, who was an

identifying witness also in Ext B2, specifically stated that he had not

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signed as an identifying witness in respect of Ext. B2 and also that he

did not know about the signature in Ext. B2.  

35.Besides, considering the nature of the document which was a Deed of

Gift and even assuming that no pleading is filed specifically denying

the execution of the document by the executant and, therefore, there

was  no  mandatory  requirement  and  obligation  to  get  an  attesting

witness  examined  but  still  the  fact  remains  that  the  plaintiff  never

admitted the execution of the gift deed and, therefore, the same was

required to be proved like any other document.  

36.In the present case, the person who was called to prove the document

himself said that he had not signed as an identifying witness in respect

of Ext.  B2 and moreover he stated that  he did  not  know about  the

signature in Ex. B2.  The contents of the document were not proved as

was required to be done.  Taking all the factors as stated hereinbefore

into  consideration  and  also  noticing  the  fact  that  execution  of  the

Will, which was executed on the same day as that of the Gift Deed,

we hold  that  even the said  document  is  found  to  be of  suspicious

nature and therefore the said deed is also held to be not duly proved.  

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37.Consequently, no interference is called for to the findings recorded by

both the  appellate  courts  below to the effect  that  the appellant  has

failed to prove that the said deed of gift  was executed by deceased

Chathu.  That apart both the appellate courts below have found that

both the documents  namely the Deed of Gift  as also Deed of  Will

suffer  from  suspicious  circumstances.   The  said  findings  are

concurrent findings of fact which should not be normally interfered

with by the Court by exercising the power under Article 136 of the

Constitution of India.

38.In that  view of the matter,  we find no reason to  interfere with the

findings arrived at by the High Court.  The appeal has no merit and is

dismissed.  However, there shall be no order as to costs.  

…………………………...J.      (Tarun Chatterjee)  

   ……………………………J. (Dr. Mukundakam Sharma)

New Delhi; December 3, 2008

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