Rohini Juliet @ Lekha v. Sherry Kunju and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **FRIDAY, THE 1ST DAY OF NOVEMBER 2019 / 10TH KARTHIKA, 1941** ## **RSA.No.1310 OF 2014** **AGAINST THE DECREE AND JUDGMENT IN AS 108/08 DATED 30.09.11 BY THE DISTRICT COURT, ALAPPUZHA, IN APPEAL AGAINST THE DECREE AND JUDGMENT OF THE ADDL. SUB COURT, ALAPPUZHA DATED 23.02.08 IN OS 196/07** **-----** ## **APPELLANT/APPELLANT/PLAINTIFF:** **ROHINI JULIET @ LEKHA, AGED 58 YEARS, D/O JULIET MAMAN, CHARANGHAT HOUSE, MARARIKULAM NORTH VILLAGE, PERUNNERMANGALAM MURI, MARARIKULAM, ALAPPUZHA.** **BY ADVS.** **SMT.INDULEKHA JOSEPH SRI.NEERAJ NARAYAN SRI.V.G.ARUN (K/795/2004)** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **1 SHERRY KUNJU, AGED 65 YEARS, S/O JULIET MAMAN, CHARANGHAT HOUSE, KACHERYKANAM ROAD, PALLURUTHY P.O., KOCHI-6 2 BRODIN KUNJU, AGED 62 YEARS, S/O JULIET MAMAN, CHARANGHAT HOUSE, KACHERYKANAM ROAD, PALLURUTHY P.O., KOCHI-6.** **R1 & R2 BY ADV. DR.ELIZABETH VARKEY R1 & R2 BY ADV. SRI.K.J.SAJI ISAAC** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31.10.2019, THE COURT ON 01.11.2019 DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** ## **= = = = = = = = = = = = = = = = = = RSA No.1310 of 2014** ## **= = = = = = = = = = = = = = = = = = Dated this the 1[st] day of November, 2019** ## **JUDGMENT** The concurrent dismissal of a suit for partition is assailed by the plaintiff in the suit. 2. The parties are siblings. The plaint schedule consists of two items of properties. Item No.1 having an extent of 42.40 Ares admittedly belonged to the mother of the parties. Plaint item No.2 belonged to the father of the parties and was gifted to the mother as per Ext.A3. Thus, both plaint items 1 and 2 belonged to the mother. 3. The claim for partition was challenged by the defendants setting up Ext.A1 Gift Deed executed by the mother in their favour. 4. The courts below held that without seeking to set aside Ext.A1 or a declaration that the same is void, the mere suit for partition is not maintainable. The decree was confirmed in appeal. 5. Heard learned counsel Sri.Arun V.G. on behalf of the appellant-plaintiff and Sri.Saji RSA No.1310 of 2014 :- 2 :- Issac on behalf of the respondents-defendants on the following substantial questions of law:- (a) Were the courts below justified in relying on Ext.A1 Gift Deed without the same being proved as mandated under Section 68 of the Evidence Act? (b) Is Ext.A1 Gift Deed bad for want of proper attestation as required under law? 6. Section 68 of the Evidence Act mandates that if the execution of the gift deed is denied, then it shall be proved by examining at least one attesting witness. If the execution is not proved, then Ext.A1 will not be of any avail to defend the claim for partition. It would be apposite to refer to Section 68 of the Evidence Act which reads thus:- ## “ **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 RSA No.1310 of 2014 :- 3 :- 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 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.” 7. Admittedly none of the attesting witnesses to Ext.A1 were examined. The question essentially is, whether the execution of Ext.A1 has been specifically denied by the plaintiff making it imperative for the defendants to prove execution in terms of Section 68 of the Evidence Act. The plea against Ext.A1 gift is found in paragraph 5 of the plaint. It reads thus:- “5. On getting information about the settlement deed the plaintiff enquired about the same before the S.R.O Mararikkulam and obtained a certified RSA No.1310 of 2014 :- 4 :- copy of the same on 22/11/06. The plaintiff here in disputing the validity and genuineness of the alleged settlement deed. The mother of the plaintiff herein, who is the executants of the said deed severely ill due to old age and other ailments at the time of execution of the alleged settlement deed. She was not capable of exercising her free will or volition exercising fraud coercion and undue influence, the defendants with their allies either caused the executants to forcibly put some signature in some document or they themselves created the document forging her signature and got it registered. The alleged settlement deed is vitiated by coercion, fraud and undue influence and void ab initio. During the period of the execution of the alleged settlement deed, the executants was not in state of mind or health to know the nature and contents of any documents or execute any document or subscribe her signature. The said settlement deed not come into force at any time and the parties to the settlement deed not acted upon the same and they did not effected any mutation regarding the properties. The said settlement deed is void abinitio and is not binding upon the plaintiff and it is only to be ignored.” RSA No.1310 of 2014 :- 5 :- According to the learned counsel for the appellant, it has been specifically pleaded that the signature on Ext.A1 is forged, and that is categoric denial of execution which required proof of execution of Ext.A1 in terms of Section 68 of the Evidence Act. 8. A reading of paragraph 5 of the plaint shows that the challenge against Ext.A1 is an omnibus one. Challenge has been made on both the physical and mental capacity of the executant, it is contented that the executant was not capable of exercising free will or volition, that fraud, coercion and undue influence were exercised on the executant and also that signatures were obtained on Ext.A1 from the executant forcibly. It is also pleaded that the document might have been created by forging the signature. The plaintiff is not definite in the allegations. 9. The learned counsel for the appellant, relying on the decision of the Apex Court in Rosammal Issetheenammal Fernandez (Dead) by LRs and Ors. v. Joosa Mariyan Fernandez and Ors. [ (2000) 7 RSA No.1310 of 2014 :- 6 :- SCC 189] contends that, the plea that the signature in the gift deed is forged, amounts to denial of execution and necessitates proof in terms of Section 68 of the Evidence Act. On the facts of the said case, the Apex Court noticed that, challenging the execution of the deeds in question in the said suit it was pleaded that, on the date of the execution of the deeds the executant was confined to bed due to paralysis, that he was not in a position to execute any document, and that the signatures of the executant on the said document were forged after influencing the Sub Registrar. The Apex Court held that the said averments amount to specific denial of execution. 10. Noticeably in the said case, the allegation and challenge against the documents were very specific, that the signatures in the documents were forged. However, in the case at hand as noticed supra the allegations against Ext.A1 are vague, that the document is vitiated either on the ground of fraud, undue influence and coercion or on the ground of forgery. This does not amount to a RSA No.1310 of 2014 :- 7 :- specific denial of execution. 11. The Apex Court in the somewhat similar factual situation as in the case at hand, in Govindbhai Chhotabhai Patel and Ors. v. Patel Ramanbhai Mathurbhai [2019 (12) SCALE 732] held that, such omnibus allegations does not amount to specific denial of execution necessitating proof of the document in terms of Section 68 of the Evidence Act. The proviso to Section 68 necessitates proof in terms of the Section only where the execution is “specifically denied”. In the said case also a Gift Deed was in question. The challenge against the gift deed were on various grounds referred to in paragraph 27 of the judgment which are extracted hereunder for a proper understanding of the factual similarity with the present case. “..... 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 RSA No.1310 of 2014 :- 8 :- 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 RSA No.1310 of 2014 :- 9 :- 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 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.....” 12. As is discernible from paragraph 4 of the said judgment, issue No.1 raised in the said suit was “whether the plaintiffs proved that the disputed gift deed is fabricated?”. On the said plaint averments and the issue raised, the Apex Court held that there is no specific denial of execution. In paragraph 35 of the judgment, the Apex Court observed thus:- RSA No.1310 of 2014 :- 10 :- “..... 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.” ## And at paragraph 41 it was held thus:- “..... The Appellants have not denied the execution of the document but alleged forgery and fabrication. .....” 13. The Apex Court concluded that in the absence of specific denial of execution and in the absence of any evidence of forgery or fabrication, the donee was under no obligation to examine the attesting witnesses to prove the gift deed in terms of Section 68 of the Evidence Act. In order to explain the meaning of the term “specifically denied” occurring in Section 68 of the Evidence Act, and to distinguish it from a general denial of execution, the Apex Court referred to a judgment of the Division Bench of this Court in Kannan Nambiar v. Narayani Amma and Ors. reported in 1984 KLT 855 . Paragraphs 14 and 15 of the said judgment that were RSA No.1310 of 2014 :- 11 :- ## relied on by the Apex Court reads thus:- “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 3[rd] 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). 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 RSA No.1310 of 2014 **==> picture [58 x 9] intentionally omitted <==** execution of the document by the alleged executant cannot be gathered, for the denial contemplated in the proviso.” 14. It is necessary to note that the Apex Court in Govindbhai Chhotabhai Patel and Ors. v. Patel Ramanbhai Mathurbhai [2019 (12) SCALE 732] referred to its earlier decision reported in Rosammal Issetheenammal Fernandez (Dead) by LRs and Ors. v. Joosa Mariyan Fernandez and Ors. [ (2000) 7 SCC 189] and observed that, that was a case where there was a specific denial of execution. 15. Therefore, it can only be concluded that there is no specific denial of execution in the case at hand, necessitating proof of the document by examining an attesting witness. Resultantly, I concur with the finding of the courts below that on the face of Ext.A1 Gift Deed, the plaintiff is not entitled to maintain the suit for partition simplicitor. 16. Coming to the next question raised, according to the learned counsel for the appellant, RSA No.1310 of 2014 :- 13 :- Ext.A1 gift deed is invalid for non-compliance of the statutory requirement under Section 123 of the Transfer of Property Act. The Section mandates that a deed of gift shall be attested by at least two witnesses. Ext.A1 gift deed is attested by only one witness and hence cannot be a valid and operative gift in the eye of law, submits the learned counsel. 17. The said contention is liable to be repelled for reasons more than one. Such a challenge regarding insufficiency of attestation and consequent invalidity of Ext.A1 gift was not pleaded or urged before the courts below. In Ext.A1 gift, after the signature of the executant is the heading, “Witnesses”. Then the first person described is one V.J.Sebastian, followed by his signature. In continuation thereof is the name P.R.Indira with her address and describing her as, scribe. Law is too well settled that even a scribe could be an attesting witnesses provided he had the necessary animo attestandi, viz. the animus or the intention to be an attestor to the document. RSA No.1310 of 2014 :- 14 :- Whether the scribe signed the document with an intent to attest or not, is a pure question of fact. As noticed above, just before describing the names of the two attestors, the title given is “ witnesses ” in plural. The mere fact that the serial number is given only as against the first attestor does not, in the circumstances, make any difference. Anyhow, in the absence of any challenge to the sufficiency of attestation, there was no occasion for the donee to adduce evidence regarding the same. The document on the face of it appears to satisfy the ingredients of Section 123 of the Transfer of Property Act and is attested by two witnesses. Therefore, the challenge against Ext.A1 on the said ground also fails. The substantial questions of law are answered accordingly. In the result, this appeal fails and is accordingly dismissed. No costs. **Sd/SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge