Kamalaksha v. Jalajakshi and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **& THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 23RD DAY OF FEBRUARY 2018 / 4TH PHALGUNA, 1939** **AFA.No. 16 of 1999** **( AGAINST THE JUDGMENT IN AS 392/1991 of HIGH COURT OF KERALA DATED, 19.03.1998)** ## **APPELLANT IN A.F.A/RESPONDENT IN A.S./PLAINTIFF IN SUIT:** **KAMALAKSHA, S/O. KITTANNA DEVADIGA, KANVATHIRTHA OF KUNJATHUR VILLAGE, KUNJATHUR POST, KASARAGOD TALUK.** **BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.)** ## **RESPONDENTS IN A.F.A/APPELLANTS IN A.S./DEFENDANTS IN SUIT:** **1. JALAJAKSHI, W/O.VAMANA DEVADIGA, RESIDING AT KANVATHIRTHA,** **KUNJATHUR VILLAGE, KUNJATHUR POST, KASARAGOD TALUK.** - ***2. SHANTHA, W/O.JARAPPA DEVADIGA, (DIED) RESIDING AT KANVATHIRTHA, KUNJATHUR VILLAGE, KUNJATHUR POST, KASARAGOD TALUK.** **3. KUMUDA, W/O.VAMANA DEVADIGA, RESIDING AT KANVATHIRTHA,** **KUNJATHUR VILLAGE, KUNJATHUR POST, KASARAGOD TALUK.** **4. YASHODA, W/O.DAMODARA DEVADIGA, RESIDING AT KANVATHIRTHA,** **KUNJATHUR VILLAGE, KUNJATHUR POST, KASARAGOD TALUK.** **5. KASTURI, W/O.RAMACHANDRA DEVADIGA, RESIDING AT KANVATHIRTHA,** **KUNJATHUR VILLAGE, KUNJATHUR POST, KASARAGOD TALUK.** - _***ADDL. RESPONDENTS IMPLEADED:**_ ## **ADDL.R6. JARAPPA DEVADIGA, S/O.LATE GOGRA GURIKAR, P.O. DERE BAIL, UPPER KONCHADY, MANGALORE-575 004.** **:2:** ## _**AFA.No. 16 of 1999**_ ## **ADDL.R7. JANARDHANA, S/O. JARAPPA DEVADIGA,** ## **P.O. DERE BAIL, UPPER KONCHADY, MANGALORE-575 004.** ## **ADDL.R8. CHANDRASHEKARA,** **S/O. JARAPPA DEVADIGA, P.O. DERE BAIL, UPPER KONCHADY, MANGALORE-575 004.** ## **ADDL.R9. DINAKARA, S/O. JARAPPA DEVADIGA,** **P.O. DERE BAIL, UPPER KONCHADY, MANGALORE-575 004.** _**(ADDL. RESPONDENTS 6 TO 9, (LEGAL REPRESENTATIVES OF THE DECEASED RESPONDENT NO.2), ARE IMPLEADED AS PER ORDER DATED 23.02.2018 IN C.M.P.NO.7416/2001.**_ **R6 BY ADV. SRI.U.P.KUNIKULLAYA R7, 8 & R9 BY ADV. SRI.V.L.SHENOY R1, R3 TO R5 BY ADV. SRI.S.VINOD BHAT** **THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23-02-2018,** ## **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **V.CHITAMBARESH , J & R. NARAYANA PISHARADI, J** **-----------------** ----------------------------------- ## **A.F.A. No.16 of 1999** ----------------------------------------------------Dated this the 23[rd] day of February, 2018 ## **JUDGMENT** ## _**R. Narayana Pisharadi, J**_ The appellant is the plaintiff in a suit for partition. He is the only son of Kittanna Devadiga. The defendants are the daughters of Kittanna Devadiga. 2. The plaint A schedule property belonged to Kittanna Devadiga. He died in the year 1977. The plaintiff sued for partition of the plaint A Schedule property claiming 7/12 share in it. The defendants resisted the claim for partition on the basis of Ext.B2 gift deed dated 02.09.1976 alleged to have been executed by Kittanna Devadiga in their favour. 3. During the trial of the suit, in the first instance, the plaintiff was examined as PW1 and Ext.A1 document was marked on his side. The scribe of Ext.B2 gift deed was examined as DW1 and Exts.B1 and B2 documents were marked on the side of the defendants. The trial court held that the plaint schedule property is the self acquired property of Kittanna Devadiga. But, the trial court found that the defendants failed to prove execution of Ext.B2 gift deed by Kittanna Devadiga and accordingly, decreed the suit holding that the plaintiff and the defendants have got equal shares in the _**A.F.A. No.16 of 1999**_ 2 property. 4. The defendants challenged the decree of the trial court in appeal before this Court. As per the judgment dated 21.03.1990 in A.S.No.224 of 1983, this Court confirmed the finding of the trial court that the plaint schedule property is the self acquired property of Kittanna Devadiga. However, this Court remanded the suit to the trial court to enable the defendants to adduce evidence to prove Ext.B2 gift deed. 5. After the remand of the suit, no further evidence was adduced by the plaintiff. The defendants examined DW2 to DW6. The trial court once again found that the defendants could not prove execution of Ext.B2 gift deed and that Ext.B2 is not a true and genuine document and decreed the suit. 6. The defendants again challenged the decree of the trial court by filing appeal before this Court. As per the judgment dated 19.03.1998 in A.S.No.392 of 1991, the learned single Judge found that the defendants could prove execution of Ext.B2 gift deed by Kittanna Devadiga and there was nothing to show that Kittanna Devadiga was not in a sound disposing state of mind. Accordingly, the learned single Judge set aside the decree of the trial court and dismissed the suit. The plaintiff has filed this appeal challenging the judgment of the learned single Judge. _**A.F.A. No.16 of 1999**_ 3 7. We have heard the learned counsel for the appellant as well as the respondents. 8. Before the institution of the suit, the plaintiff had sent Ext.A1 lawyer notice to the defendants and he had received their reply resisting the claim for partition on the basis of Ext.B2 gift deed. Therefore, at the time of institution of the suit itself, the plaintiff could raise his defence against Ext.B2 gift deed. In the plaint itself he pleaded that Kittanna Devadiga was lying paralyzed long before his death and that he had lost his power of speech and he had no sound disposing state of mind. The plaintiff also pleaded that the gift deed is not valid and not binding upon him. At the same time, he denied execution of the gift deed by Kittanna Devadiga. This Court, in the first instance, remanded the suit to the trial court on the premise that the plaintiff had denied execution of Ext.B2 gift deed by Kittanna Devadiga. 9. In Ext.B2 gift deed, the signature of Kittanna Devadiga appears as a mark made of three small vertical lines. There is no signature of Kittanna Devadiga in Ext.B2 by writing any name or words. 10. Two substantial questions of law to be decided in this appeal are: (1) Can a person sign a document by drawing three small vertical lines without writing any name or words? (2) Are _**A.F.A. No.16 of 1999**_ 4 there sufficient grounds in this case for allowing the defendants to take recourse to Section 71 of the Indian Evidence Act to prove Ext.B2 gift deed? 11. Section 3(56) of the General Clauses Act, 1897 defines the expression 'sign' as under: _"(56) - "Sign", with its grammatical variations and cognate expressions, shall, with reference to a person who is unable to write his name, include "mark", with its grammatical variations and cognate expressions."_ 12. Section 3(56) of the General Clauses Act has not defined 'signature' but has extended its meaning with reference to a person, who is unable to write his name, to include "mark" with its grammatical variations and cognate expressions. It can be seen that the said definition is an inclusive one and includes 'mark' within the definition of the word 'sign'. 13. According to the general policy of the law, "signature" includes a mark, it being a sort of symbolic writing (See Shailendranath Mitra v. Girijabhushan Mukherji: AIR 1931 Cal 596). Various modes of signing have been recognised in law. Thumb impression or mark or line or cross mark is accepted as signature in the case of persons who could not write due to illiteracy or physical inability (See Bank of India v. James Fernandez : 1987 (2) KLT 236). An illiterate person can sign by putting any mark. What is _**A.F.A. No.16 of 1999**_ 5 necessary is that the document must be signed in such a way as to make it appear that the person signing it is the author of it and if that appears it does not matter what the form of the instrument is, or in what part of it the signature occurs (See M/s Hindustan Construction Company Limited v. Union of India : AIR 1967 SC 526). 14. Making a mark would amount to affixing of signature especially when the executent of the document is unable to write his name, may be due to his physical incapacity or illiteracy. There is evidence that Kittanna Devadiga was a person who knew only the language of Tulu. Even if he was literate, there is evidence that his hands were shaky at his old age. This explains affixing of signature by him in the gift deed by putting a mark, that is, by drawing three small vertical lines. 15. Section 123 of the Transfer of Property Act provides that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Section 68 of the Indian Evidence Act provides that 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 _**A.F.A. No.16 of 1999**_ 6 the process of the Court and capable of giving evidence. It is also 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 unless its execution by the person by whom it purports to have been executed is specifically denied. 16. DW2 is one of the attesting witnesses. In examination – in – chief, he stated that Ext.B2 gift deed was executed by Kittanna Devadiga. He would also say that he had heard the scribe of the document reading the contents of it. But, on cross examination, he would say that he did not know Kittanna Devadiga and he had no acquaintance with Kittanna Devadiga. He specifically stated that he could not say whether Kittanna Devadiga put the three lines in the gift deed in his presence. He further stated that the contents of the document were not read over to Kittanna Devadiga in his presence. He has also given evidence that a person claiming to be an advocate approached him three days prior to his examination in the court and told him not to say anything about the gift deed. On a reading of the testimony of DW2 as a whole, it can be found that he has denied seeing Kittanna Devadiga executing Ext.B2 gift deed. His evidence does not prove execution of Ext.B2 gift deed by Kittanna Devadiga. _**A.F.A. No.16 of 1999**_ 7 17. DW6 is the other attesting witness. He is a barber by profession. He has not given any evidence that he saw Kittanna Devadiga putting three lines in Ext.B2 document. He would say that he did not know Kittanna Devadiga. He has stated that he had attested several documents at the instance of the document writer as he trusted him. There can be no hesitation to find that the evidence of DW6 is not at all sufficient to prove execution of Ext.B2 gift deed by Kittanna Devadiga. 18. Section 71 of the Evidence Act states that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. Section 71 of the Act provides for one of the exceptions where it is not possible to strictly comply with the requirements of Section 68 of the Act. Section 71 deals with a situation where the attesting witness denies or does not recollect the execution of the document and in that eventuality, execution of the document can be proved by other evidence. ## 19. In **Janki Narayan Bhoir v. Narayan Namdeo Kadam :** **AIR 2003 SC 761** , the Hon'ble Supreme Court has held as follows: _“S.71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of S.68 Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling attesting witnesses, though alive. This Section_ 8 ## _**A.F.A. No.16 of 1999**_ _provides that if an attesting witness denies or does not recollect the execution of the Will, its execution may be proved by other evidence. Aid of S.71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. S.71 has no application to a case where one attesting witness, who alone has been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for the reasons best known, have not been summoned before the court. It is clear from the language of S.71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence”._ ## 20. In **Jagdish Chand Sharma v. Narain Singh Saini:** **AIR 2015 SC 2149** _**,**_ the legal position was reierated by the Apex Court by holding as follows: _“S.71 of the 1872 Act has to be necessarily accorded a strict interpretation. The two contingencies permitting the play of this provision, namely, denial or failure to recollect the execution by the attesting witness produced, thus a fortiori has to be extended a meaning to ensure that the limited liberty granted by S.71 of 1872 Act does not in any manner efface or emasculate the essence and efficacy of S.63 of the Act and S.68 of 1872 Act. The distinction between failure on the part of attesting witness to prove the execution and attestation of a Will and his_ 9 ## _**A.F.A. No.16 of 1999**_ _or her denial of the said event or failure to recollect the same, has to be essentially maintained. Any unwarranted indulgence, permitting extra liberal flexibility to these two stipulations, would render the predication of S.63 of the Act and S.68 of the 1872 Act, otiose”............. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of Will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined.”_ 21. Therefore, the question arises, whether the conditions under Section 71 of the Indian Evidence Act have been satisfied enabling the defendants to take recourse to that provision to prove Ext.B2 gift deed. In the instant case, the defendants examined both attesting witnesses. DW2 stated in examination–in-chief that Kittanna Devadiga put three lines in the gift deed and that the scribe of the document read over the contents of the document. But, he stated on cross examination that he did not know Kittanna Devadiga and that he was not acquainted with him. He also stated that it was the scribe who put the three lines in the document. In other words, DW2 has denied execution of Ext.B2 gift deed by Kittanna Devadiga. DW6 has stated in examination–in-chief that Kittanna Devadiga executed Ext.B2 document. But, in examination– in-chief itself he has stated that he was not acquainted with the _**A.F.A. No.16 of 1999**_ 10 executant of the document. He has not given any evidence that he saw Kittanna Devadiga putting three lines in the document. He has stated that he used to attest many documents as he trusted the document writer. DW6 was treated as a hostile witness by the defendants. In these circumstances, we are of the view that the conditions mentioned under Section 71 of the Evidence Act have been satisfied enabling the defendants to prove the gift deed by other evidence. 22. The defendants rely upon the testimony of DW1 and DW3 to DW5 to prove execution of Ext.B2 gift deed by Kittanna Devadiga. 23. DW1 is the scribe of Ext.B2 gift deed. He has stated that he wrote Ext.B2 document as instructed by Kittanna Devadiga. He has deposed that after preparing the document, he read over the contents of it to Kittanna Devadiga. According to DW1, Kittanna Devadiga was not able to put his signature in the document as his hands were shaky and therefore, he has drawn three lines in token of execution. He would say that the document was thereafter attested by the witnesses. DW1 has stated on cross examination that he was acquainted with Kittanna Devadiga. He has reiterated that Kittanna Devadiga put the three lines in the document. The fact that DW1 could not recollect the name of the father of Kittanna _**A.F.A. No.16 of 1999**_ 11 Devadiga or the place of his residence cannot be a ground to disbelieve his evidence that he prepared Ext.B2 document and that Kittanna Devadiga put three lines in the document in token of its execution. 24. DW5 is the Sub Registrar who registered Ext.B2 document. He has stated that he registered Ext.B2 document. He would say that it was Kittanna Devadiga who presented the document for registration. Kittanna Devadiga put three lines and his thumb impression in the document in his presence. DW5 has stated on cross examination that he had put the usual questions to Kittanna Devadiga in Kannada before registration of the document and that Kittanna Devadiga made the replies in Kannada. DW5 was satisfied that the executant was aware of the nature of the document. Of course, DW5 has stated on cross examination that he did not know the language of Tulu. Merely for the reason that DW5 did not know Tulu and merely for the reason that the executant only knew Tulu, it cannot be found that DW5 was not able to ascertain from the executant the nature of the document being executed by him. It is also to be noted that the evidence of DW5 is supported by the endorsements made on Ext.B2 gift deed under the Registration Act. It cannot be believed that DW5 registered the document without ascertaining from the executant the nature of the document _**A.F.A. No.16 of 1999**_ 12 being executed by him. 25. DW3 and DW4 are the two identifying witnesses who were present at the time of registration of Ext.B2 gift deed. They are sons-in-law of Kittanna Devadiga. They have given evidence that they signed the document as identifying witnesses at the office of the Sub Registrar. They have deposed that Kittanna Devadiga told the Sub Registrar that he was voluntarily executing the document. 26. The evidence of the aforesaid witnesses have to be appreciated in the light of the plea raised by the plaintiff in the plaint. There is only a vague denial in the plaint that Kittanna Devadiga has not executed Ext.B2 gift deed. At the same time, the plaintiff has also put forward a plea that the gift deed is not valid and not binding upon him. But, there is no plea raised by the plaintiff that the mark of three lines seen in Ext.B2 gift deed as the signature of his father is a forgery. 27. There is another circumstance which assumes significance. The plaintiff has admitted in his evidence that he became aware of the gift deed three months after its registration. He did not take any legal steps to challenge it during the lifetime of his father. 28. It is also to be noted that Kittanna Devadiga had assigned some property to the plaintiff in the year 1975 as per Ext.B1 document. The plea that the plaintiff was the lessee of this _**A.F.A. No.16 of 1999**_ 13 property cannot be believed because at the time of the lease arrangement, he was only a boy aged 12 years. As Kittanna Devadiga had given property to the plaintiff in the year 1975, it is quite natural that he thought it necessary to provide some properties to his daughters also. 29. In the aforesaid circumstances, we are of the view that relying upon the evidence of DW1 and DW3 to DW5, the defendants have been able to prove that Ext.B2 gift deed was executed by Kittanna Devadiga. 30. The plaintiff has raised a plea that Kittanna Devadiga was not having sound disposing state of mind at the time of execution of Ext.B2 gift deed. The plaintiff has averred that his father was lying paralyzed long before his death and that he had lost his power of speech and he was bed-ridden. No medical evidence was adduced by the plaintiff to prove this plea. The plaintiff has got a specific case at the time of trial that Kittanna Devadiga was under the treatment of a particular doctor. The aforesaid doctor was not examined. No records relating to the treatment of Kittanna Devadiga were produced. If Kittanna Devadiga was not in a sound disposing state of mind and if he was lying paralysed, the Sub Registrar would have certainly taken note of the physical condition of the executant. Nothing has been brought out during the cross _**A.F.A. No.16 of 1999**_ 14 examination of DW5 to show that though he knew that Kittanna Devadiga was lying paralysed, he registered the document. In these circumstances, especially in the absence of any medical evidence adduced by the plaintiff to prove that Kittanna Devadiga was lying paralysed and he was bed-ridden, we are not inclined to accept the plea made by the plaintiff that his father was not in a sound disposing state of mind at the time of execution of Ext.B2 gift deed. 31. The plaintiff (PW1) has given evidence that during the period of three years prior to his death, his father was lying bedridden and he was not in a sound disposing state of mind. Kittanna Devadiga died in the year 1977. If the plea of the plaintiff is accepted, it would mean that at the time of execution of Ext.B1 document assigning property in the name of the plaintiff in the year 1975 also Kittanna Devadiga had no sound disposing state of mind. It falsifies the plea of the plaintiff. 32. The gift in favour of the defendants was not onerous. Ext.B2 gift deed was in the custody of the defendants and they produced it in the court. The property covered by the gift deed was actually in the physical possession of the defendants. Acceptance of the gift by the defendants can be then presumed. 15 ## _**A.F.A. No.16 of 1999**_ 33. In the light of the aforesaid conclusions, we do not find sufficient ground to interfere with the judgment of the learned single Judge. The appeal is liable to be dismissed. 34. Consequently, the appeal fails and it is dismissed. No costs. _Sd/-_ **(V.Chitambaresh, Judge)** _Sd/-_ **(R. Narayana Pisharadi, Judge)** _//True Copy//_ _P.A. To Judge_ ss