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PETITIONER: ROSAMMAL ISSETHEENAMMAL FERNANDEZ (DEAD) BY LRS.  & ORS.

       Vs.

RESPONDENT: JOOSA MARIYAN FERNANDEZ & ORS.

DATE OF JUDGMENT:       09/08/2000

BENCH: A.P. Misra  &  Y.K. Sabharwal

JUDGMENT:

DERL...I...T.......T.......T.......T.......T.......T.......T..J

Heard learned counsel for the parties.

   The short question raised is, whether the High Court was right  to  entertain  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  2/5th share as parties are Roman Catholic Christians of Latin rite and  as per custom in the community, both daughters and sons get   equal  share.   The   appellant  also  challenged  the execution  of  the gift deed Exhibit B-1 and the  Settlement Deed  Exhibit B-2.  The trial court dismissed the 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.  Aggrieved by the  same,  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 alleged 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 appellants second 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  Christians in Travancore is  governed  by Indian  Succession Act under which daughter 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 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;  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 of the execution of the documents within the meaning of that proviso.

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   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 existence  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:

   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  Maryan Fernandez was present there then.

   Similarly, relevant portion of the appellate court reads as under:

   But  in cross examination he admitted that Exhibit  B-2 is  a settlement deed executed by Joos 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 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 admissibility of  a document which has important bearing on the rights  of both  the  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 uncertainly and  vagueness 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  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:

   The  gift  deed  No.  1763/73 and settlement  deed  No. 1764/73 were brought into existence fraudulently without the knowledge  and  consent 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 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.  1 and 2 forged the  signature of  the  father  after influencing the  sub-registrar.   The denial  cannot be more stronger than what is recorded  here. Once  when there is denial made by the plaintiff, it  cannot

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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 in evidence.

   Section  68 of the Indian Evidence Act;  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  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  Registration Act,  XVI of 1908 unless its execution by the person by whom it purports to have been executed is specifically denied.

   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 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.   The gift  deed  accordingly fails and the findings of  the  High Court  contrary  are  set aside.  In view of this  no  right 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.