K. Laxmanan vs Thekkayil Padmini & Ors

K. Laxmanan ....Appellant

Versus

Thekkayil Padmini & Ors. .... Respondents

JUDGMENT

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

Page 2 of 17 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

Page 3 of 17 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

Page 4 of 17 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.

Page 5 of 17

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

Page 6 of 17 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

Page 7 of 17 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

Page 8 of 17 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

Page 9 of 17 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]. Page 10 of 17

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

Page 11 of 17 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.

Page 12 of 17

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

Page 13 of 17 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

Page 14 of 17 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

Page 15 of 17 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.

Page 16 of 17

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

Page 17 of 17