REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7528 OF 2019
(ARISING OUT OF SLP (CIVIL) NO. 4382 OF 2019)
GOVINDBHAI CHHOTABHAI PATEL & ORS. .....APPELLANT(S)
VERSUS
PATEL RAMANBHAI MATHURBHAI .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1) Leave granted.
2) The order passed by the High Court of Gujarat on September 5,
2018 in second appeal is the subject matter of challenge in the
present appeal on behalf of the plaintiffs-appellants.
3) The appellants are sons of Chhotabhai Ashabhai Patel1
who died on
December 6, 2001. During his life time, he purportedly executed a
gift deed dated November 15, 1977 in favour of defendant
Ramanbhai Mathurbhai Patel2
.
4) The parties went to trial on the following issues:
(i) Whether the plaintiffs prove that the disputed gift deed is
1 for short, ‘Donor’
2 for short, ‘Donee’
1
fabricated?
(ii) Whether the plaintiffs prove that the suit properties are
ancestral properties and late Chhotabhai Ashabhai had no
right to execute the gift deed?
(iii) Whether the plaintiffs prove that the defendant has no right,
title or interest over the said property?
(iv) Whether the plaintiffs prove that they are entitled to get the
relief as prayed for?
(v) Whether the defendant proves that the plaintiffs have no right
to file the present suit?
(vi) What order and decree?
5) The High Court framed five substantial questions of law and after
giving findings on such substantial questions of law, the judgment
and decree passed by the learned Trial Court on February 10, 2014
and the judgment and decree passed by the First Appellate Court
on October 9, 2017 were set aside.
6) The findings recorded by the High Court, inter alia, are that
execution of the gift deed was not specifically denied in the suit
filed. Therefore, it is not necessary for the Donee to examine one
of the attesting witnesses in terms of proviso to Section 68 of the
Indian Evidence Act, 18723
. It is also held that the suit property is
not ancestral property. The property was purchased by Ashabhai
Patel, father of the Donor and it is by virtue of Will executed by
Ashabhai Patel, property came to be owned by the Donor in the
year 1952-1953. The High Court, thus, held that the Donor was
competent to execute the gift deed dated November 15, 1977 as
the property was not ancestral in the hands of Donor. The relevant
3 for short, ‘Evidence Act’
2
findings on such questions which arose for consideration in the
second appeal, read as under:
“92. Once again, at the cost of repetition, I state that
Section 68 of the Evidence Act has been thoroughly
misconstrued by the Courts below. The occasion for
applying the rule of exclusion from evidence in Section
68 arises when a party seeking to rely upon a document
requiring attestation, fails to prove it in a given manner.
As observed by me earlier, the party will then not be
able to use it as evidence. But this procedural disability
against use of a document as evidence cannot by any
stretch be regarded as an affirmative finding that the
grounds of attack for avoidance of the deed as claimed
in the original relief or cancellation subsisted. The
plaintiff cannot succeed relying upon the weakness or a
flaw in the case set up by the defendant. The law is
that the plaintiff can succeed in the suit only on the
strength of his own case.
xx xx xx
105. The case of the plaintiffs is very specific.
According to them, the suit properties were purchased
by their grandfather and those properties came to be
devolved upon their father by Testamentary disposition
i.e. on the strength of the will of their grandfather. The
Hindu Law, as it stands today, clearly postulates that if
it is a self-acquired property of the father, it falls into
the hands of his sons not as coparcenary property, but
would devolve on them in their individual capacity.
Where the property is a self-acquired property of the
father, it falls into the hands of his son in his individual
capacity and not as coparcenary property in such case
son’s son cannot claim right in such property.
xx xx xx
108. In view of the above, I hold that the suit properties
devolved upon the father of the plaintiffs could not be
said to be coparcenary property. The properties were
purchased by the grandfather of the plaintiffs, as
pleaded and admitted by the plaintiffs themselves.
Such self-acquired properties of the grandfather came
to be devolved upon the father of the plaintiffs by way
of a ‘will’ i.e. testamentary disposition. In such
circumstances, it could be said that the properties are
3
self-acquired properties of the father of the plaintiffs.
The succession would have been in accordance with
Section 8 of the Hindu Succession Act. When the
properties could be said to be self-acquired properties
of the father of the plaintiffs, then the father could have
definitely transferred those properties by way of a gift
deed.
xx xx xx
114. In view of the above, I hold that the suit properties
were self-acquired properties of the father of the
plaintiffs, and in such circumstances, it was open for the
father of the plaintiffs to execute the gift deed in favour
of the defendant.”
7) Learned counsel for the appellants submitted that the High Court
has exceeded its jurisdiction in second appeal as findings recorded
by the First Appellate Court were not specifically dealt with. It is,
thus, argued that the interference in the second appeal is contrary
to judgment of this Court in Thulasidhara & Anr. v.
Narayanappa & Ors.
4
. It is argued that the appellants have
produced old revenue record and from the documents (Exhibits 107
to 126), the property is proved to be ancestral and such is the
finding recorded by the Trial Court and the First Appellate Court.
Such evidence was not controverted by the Donee. It is argued
that the findings recorded by the High Court that the property
devolved on the Donor by virtue of a Will, therefore, it ceases to be
an ancestral property is contrary to the judgment of this Court in
C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar &
Anr.
5
. The reliance is also placed upon judgment of this Court in
4 (2019) 6 SCC 409
5 AIR 1953 SC 495
4
Shyam Narayan Prasad v. Krishna Prasad & Ors.
6
that selfacquired property of a grandfather devolves upon his son as
ancestral property.
8) On the other hand, learned counsel for the Donee argued that the
plaintiffs have failed to prove that the property was ancestral
property after admitting that their grandfather has purchased the
property and given it under Will to their father to the exclusion of
other family members. The argument raised by learned counsel for
the appellants that the High Court has exceeded its jurisdiction by
reversing the findings of fact recorded by the First Appellate Court
does not hold good as the very reasoning recorded has been found
to be illegal. It is argued that judgment in C.N. Arunachala
Mudaliar is to the effect that the property bequeathed or gifted to
a son by a Mitakshara father will be treated as self-acquired
property in the hands of Donee.
9) The first and the foremost question required to be examined is as
to whether the appellants have proved that the property in the
hands of Donor was ancestral property.
10) Govindbhai Chhotabhai Patel (PW-1) has stated, vide Exhibit 34,
that the property in question was purchased by his grandfather
Ashabhai Patel and after death of his grandfather, property was
owned by the Donor according to the inheritance since 1952-1953.
The appellants stated in the cross-examination that there was
6 (2018) 7 SCC 646
5
family partition in the year 1964 between the Donor and his two
brothers Chimanbhai Patel and Motibhai Patel. It is, thus, sought to
be argued that since the property was partitioned in 1964,
therefore, the Donor has acquired the property not as self-acquired
property but as ancestral property.
11) We find that a statement in the cross-examination that there was
partition between the Donor and his two brothers will not make the
property ancestral in the hands of Donor. The Will executed by the
father of Donor has not been produced by the appellants to show
as to what was intended by his grandfather when the Will was
executed in favour of Donor. It is admitted fact that grandfather
purchased the property, thus, such self-acquired property came to
be bequeathed to the Donor even as per the judgment relied upon
by the Appellant.
12) This Court in three Judge Bench in C.N. Arunachala Mudaliar
considered the question as to whether the properties acquired by
defendant No. 1 under Will are to be regarded as ancestral or selfacquired property in his hands. It is a case where the plaintiff
claimed partition of the property in a suit filed against his father
and brother. The stand of the father was that the house property
was the self-acquired properties of his father and he got them
under a Will executed in the year 1912. It was held that father of a
Joint Hindu family governed by Mitakshara law has full and
uncontrolled powers of disposition over his self-acquired immovable
6
property and his male issue could not interfere with these rights in
any way. The Court while examining the question as to what kind
of interest a son would take in the self-acquired property of his
father which he receives by gift or testamentary bequest from him,
it was held that Mitakshara father has absolute right of disposition
over his self-acquired property to which no exception can be taken
by his male descendants. It was held that it was not possible to
hold that such property bequeathed or gifted to a son must
necessarily rank as ancestral property. It was further held that a
property gifted by a father to his son could not become ancestral
property in the hands of the donee simply by reason of the fact
that the donee got it from his father or ancestor.
13) The Court found that such questions have been answered in
different ways by different High Courts. The Calcutta High Court
held that properties become ancestral property in the hands of his
son as if he had inherited it from his father but in other High
Courts, the question is treated as one of construction to be decided
in each case with reference to its facts as to whether the gifted
property was intended to pass to the sons as ancestral or selfacquired property.
14) The Bombay High Court in Jugmohan Das v. Sir Mangal Das
7
held that if the son takes by devise, the property continues to be
self-acquired in his hands. A man can give away his self-acquired
7 (1886) I.L.R. 10 Bom 528
7
property to whomsoever it pleases, including his own sons and that
property so given would be considered self-acquired in the hands of
the donee. The Court held as under:
“I now come to the question, whether a son, to whom a
father leaves his self-acquired property by will, takes
the estate by devise or by descent. This is a most
important point, perhaps the most important point in
the case. For, if the son takes by devise, the property
would, in my opinion, continue to be self-acquired in his
hands, and a ready means would be afforded by the use
of the testamentary power of checking enforced
partitions…
xx xx xx
The principle is now settled beyond question, that
under Hindu law a man may alienate his property to the
same extent by a will as he might by a gift inter vivos.
In the Tagore Case (Ind. Ap. Sup. Vol. at p. 68) their
Lordships of the Privy Council say: “A gift by will is, until
revocation, a continuous act of gift up to the moment of
death, and does then operate to give the property
disposed of to the persons designated as beneficiaries.
They take, upon the death of the testator, as if he had
given the property in his life-time.”
A bequest by will, therefore, is a gift made in
contemplation of death. It only differs from a gift in the
fact that it takes effect at a future time instead of
immediately. But it must clearly be governed and
controlled by the general rules regarding gift. Now,
there is no doubt that a man can give away selfacquired property to whomsoever he pleases, including
his own sons; and there is no doubt that property so
given would be considered self-acquired in the hands of
the donee. It would, therefore, follow that property
given by will would equally be self-acquired in the
hands of the devisee.”
15) Such view of the Bombay High Court was accepted by the
Allahabad High Court8
and the Lahore High Court9
. This Court in
8 Parsotam v. Janki Bai, ILR 29 All 354
9 Amarnath v. Guran, AIR 1918 Lah 394
8
C.N. Arunachala Mudaliar approved the view of the Bombay
High Court and held as under:
“9. … It was held, therefore, that the father of a joint
Hindu family governed by Mitakshara law has full and
uncontrolled powers of disposition over his self-acquired
immovable property and his male issue could not
interfere with these rights in any way. This statement of
the law has never been challenged since then and it has
been held by the various High Courts in India, and in
our opinion rightly, that a Mitakshara father is not only
competent to sell his self-acquired immovable property
to a stranger without the concurrence of his sons
[Vide Muddun v. Ram, 6 WR 71] but he can make a gift
of such property to one of his own sons to the detriment
of another [ Vide Sital v. Madho, ILR 1 All 394] ; and he
can make even an unequal distribution amongst his
heirs [Vide Bawa v. Rajah, 10 WR 287].
10. So far the law seems to be fairly settled and there
is no room for controversy. The controversy arises,
however, on the question as to what kind of interest a
son would take in the self-acquired property of his
father which he receives by way of gift or testamentary
bequest from him, vis-a-vis his own male issue. Does it
remain self-acquired property in his hands also,
untrammeled by the rights of his sons and grandsons or
does it become ancestral property in his hands, though
not obtained by descent, in which his male issue
become co-owners with him?......
11. In view of the settled law that a Mitakshara father
has right of disposition over his self-acquired property
to which no exception can be taken by his male
descendants, it is in our opinion not possible to hold
that such property bequeathed or gifted to a son must
necessarily, and under all circumstances, rank as
ancestral property in the hands of the donee in which
his sons would acquire co-ordinate interest…”
16) Still further, it was held that the father’s gifts are exempt from
partition. The reason for this distinction is that the theory of equal
ownership between the father and the son in the ancestral property
9
is not applicable to the father’s gifts at all. The Court held as
under:
“12. …But when the father obtains the grandfather's
property by way of gift, he receives it not because he is
a son or has any legal right to such property but
because his father chose to bestow a favour on him
which he could have bestowed on any other person as
well. The interest which he takes in such property must
depend upon the will of the grantor. A good deal of
confusion, we think, has arisen by not keeping this
distinction in mind. To find out whether a property is or
is not ancestral in the hands of a particular person, not
merely the relationship between the original and the
present holder but the mode of transmission also must
be looked to; and the property can ordinarily be
reckoned as ancestral only if the present holder has got
it by virtue of his being a son or descendant of the
original owner. The Mitakshara, we think, is fairly clear
on this point. It has placed the father's gifts under a
separate category altogether and in more places than
one has declared them exempt from partition. Thus in
Chapter I, Section 1, Placitum 19 Mitakshara refers to a
text of Narada which says:
“Excepting what is gained by valour, the wealth
of a wife and what is acquired by science which
are three sorts of property exempt from
partition; and any favour conferred by a father.”
xx xx xx
15. Another argument is stressed in this connection,
which seems to have found favour with the learned
Judges of the Patna High Court who decided the Full
Bench case [Vide Bhagwat v. Mst. Kaporni, ILR 23 Pat
599] referred to above. It is said that the exception in
regard to father's gift as laid down in placitum 28 has
reference only to partition between the donee and his
brothers but so far as the male issue of the donee is
concerned, it still remains partible. This argument, in
our opinion, is not sound. If the provision relating to
self-acquisition is applicable to all partitions, whether
between collaterals or between the father and his sons,
there is no conceivable reason why placitum 28, which
occurs in the same chapter and deals with the identical
topic, should not be made applicable to all cases of
10
partition and should be confined to collaterals alone.
The reason for making this distinction is undoubtedly
the theory of equal ownership between the father and
the son in the ancestral property which we have
discussed already and which in our opinion is not
applicable to the father's gifts at all. Our conclusion,
therefore, is that a property gifted by a father to his son
could not become ancestral property in the hands of the
donee simply by reason of the fact that the donee got it
from his father or ancestor.”
17) This Court further held that on reading of the Will as a whole, the
conclusion becomes clear that the testator intended the legatees
to take the properties in absolute rights as their own self-acquired
property without being fettered in any way by the rights of their
sons and grandsons. In other words, he did not intend that the
property should be taken by the sons as ancestral property.
Consequently, the appeal was allowed and the suit for partition by
the son against his father was dismissed.
18) In other case reported as Pulavarthi Venkata Subba Rao & Ors.
v. Valluri Jagannadha Rao (deceased) by his Heirs & LRs &
Ors.
10
, life estate was given by Valluri Jagannadha Rao to his two
sons, Srivatsankara Rao and Narasimha Rao. There was a condition
that if any of his sons left no son, the sons of his other son would
be entitled to the properties at the end of the life estate. The High
Court held that the properties taken by two sons of Narasimha Rao
under Will were their separate properties and not ancestral
properties as there was no such intention in the Will. This Court
held as under:
10 AIR 1967 SC 591
11
“8. The contention of the judgment-debtors was that
there were two persons who were legatees under the
will. They took the villages not as ancestral properties
but as self-acquired properties, and
the peshkash payable on these two villages must be
divided between them before Section 3(ii), proviso (D)
of the Act was made applicable. The contention on the
side of the decree-holders was that these properties
were held by an undivided Hindu family and the sons of
Narasimha Rao took the properties under the will as
ancestral properties, and the peshkash in respect of the
two villages must be added together for the purpose of
the application of the said proviso. The High Court held
that the properties taken by the two sons of Narasimha
Rao under the will, were their separate properties and
not ancestral properties, as there were no words to
show a contrary intention. The High Court also referred
to the conduct of the respondents in partitioning the
villages and held that the property was held not jointly
but in definite shares. The High Court, therefore, held
that the peshkash in respect of the two villages could
not be aggregated. The High Court, accordingly, broke
up the peshkash in respect of Kalagampudi and the
three-fifth share of Pedamamidipalli into two halves and
held that as each son of Narasimha Rao was required to
pay only his share, the peshkash paid by them
individually did not exceed Rs 500 mentioned in proviso
(D), and that the judgment-debtors were, therefore,
agriculturists. This part of the case was not challenged
before us by the learned Advocate-General of Andhra
Pradesh. Indeed, the decision of the High Court is
supported by C.N. Arunachala Mudaliar v. C.A.
Muruganatha Mudaliar [(1954) SCR 243], in respect of
the character of the property inherited by the two sons
of Narasimha Rao, and this fundamental fact could not
be questioned…..”
19) Learned counsel for the appellants has referred to Shyam
Narayan Prasad. That is a case in which the property in question
was held to be ancestral property by the Trial Court. The plaintiffs
therein being sons and grandson of one of the sons of Gopal
Prasad, the last male holder was found to have equal share in the
12
property. The question examined was whether the property
allotted to one of the sons of Gopal Prasad in partition retains the
character of coparcenary property. It was the said finding which
was affirmed by this Court. This Court held as under:
“12. It is settled that the property inherited by a male
Hindu from his father, father's father or father's father's
father is an ancestral property. The essential feature of
ancestral property, according to Mitakshara Law, is that
the sons, grandsons, and great grandsons of the person
who inherits it, acquire an interest and the rights
attached to such property at the moment of their birth.
The share which a coparcener obtains on partition of
ancestral property is ancestral property as regards his
male issue. After partition, the property in the hands of
the son will continue to be the ancestral property and
the natural or adopted son of that son will take interest
in it and is entitled to it by survivorship.”
20) The question examined in the aforesaid case was in respect of
status of the property after partition. The said question is not
arising in the present case as it is not a question of partition but
testamentary succession in favour of the Donee.
21) In view of the undisputed fact, that Ashabhai Patel purchased the
property, therefore, he was competent to execute the Will in favour
of any person. Since the beneficiary of the Will was his son and in
the absence of any intention in the Will, beneficiary would acquire
the property as self-acquired property in terms of C.N.
Arunachala Mudaliar case. The burden of proof that the property
was ancestral was on the plaintiffs alone. It was for them to prove
that the Will of Ashabhai intended to convey the property for the
benefit of the family so as to be treated as ancestral property. In
13
the absence of any such averment or proof, the property in the
hands of Donor has to be treated as self-acquired property. Once
the property in the hands of Donor is held to be self-acquired
property, he was competent to deal with his property in such a
manner he considers as proper including by executing a gift deed
in favour of a stranger to the family.
22) The other material question is whether the appellants have
specifically denied the execution of the gift deed in terms of proviso
to Section 68 of the Evidence Act, to make it mandatory for the
defendant to examine one of the attesting witnesses to prove the
Gift deed in his favour.
23) Section 68 of the Evidence Act, reads as under:
“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.”
24) A gift deed is required to be compulsorily attested in terms of
Section 123 of the Transfer of Property Act, 1882. Similar is the
provision in respect of execution of a Will which is required to be
14
attested in terms of Section 63 of the Indian Succession Act, 1925.
Section 68 of the Evidence Act makes it mandatory to examine one
of the attesting witnesses for the purpose of proving of the
execution of Will but such limitation is not applicable in respect of
proof of execution of any document which has been registered in
accordance with provisions of the Indian Registration Act, 1908,
unless the execution is specifically denied.
25) The gift deed (Ex.104) is registered and that all the requirements of
Section 123 of the Transfer of Property Act have been fulfilled, is
the finding of the Trial Court. The learned Trial Court recorded the
following findings:
“However, as far as it is concerned with the gift deed of
Exh-104, in order to prove that Late Chhotabhai
Ashabhai executed this gift deed in favour of the
defendant in fully conscious state, it is necessary as per
section – 123 of the Transfer of Property Act that this
gift deed should be signed by the executer in presence
of the two witnesses that means it should be executed
in the presence of two attesting witnesses. Moreover, it
should be proved that such gift deed is registered.
Looking to the gift deed at Exh – 104, it is an
undisputable fact that it is properly registered before
the Sub Registrar, Padra. It is also an indisputable fact
that (1) Bhikhabhai Ramabhai and (2) Karshanbhai
Dhulabhai have put their signatures in this gift deed as
the attesting witnesses. Thus, it is found that all the
requirements of section 123 of the Transfer of Property
Act have been fulfilled. However, along with this, it is
also necessary to examine the attesting witnesses of
the deed.”
26) The argument of the learned counsel for the appellants is that the
attesting witnesses of the gift deed are Bhikhabhai Ramabhai and
15
Karsanbhai Dhulabhai, whereas Solanki Bhikhabhai Ramabhai and
Vaid Alkaben Vinodchandra are the witnesses at the time of
registration of the document. It is argued that the attesting
witnesses of the document have not been examined which is a
mandatory requirement to prove execution of the gift deed in terms
of Section 68 of the Evidence Act. The High Court has held that the
appellants have not denied specifically the execution of the gift
deed, therefore, it was not necessary for the Donee to examine one
of the attesting witnesses.
27) The issue No. 1 framed by the Trial Court is whether the gift deed is
fabricated. Such issue arises on the basis of averments made in
the plaint wherein, the appellants have admitted the execution of
the gift deed but alleged that Donee has made unsuccessful effort
for grabbing the property. The appellants have, inter alia, pleaded
that Chanchalben, wife of the Donor, died in August, 1997. Thus,
there was no reason for the Donor to execute the gift deed as real
nephews of the Donor were taking complete control of the Donor.
The other ground of challenge was that the attesting witnesses
have no relation with the Donor nor they are friends of the Donor.
It was also alleged that the gift is not for religious reasons or to any
religious trust or institution or for public use nor the consent has
been sought by the Donor from the appellants. The specific
averments in the plaint are as under:
“2) The deceased Chhotabhai Ashabhai who was the
father of plaintiff Nos. 1 to 4 and plaintiff Nos. 1 to 4
were living in USA (America) since many years and the
16
deceased Chhotabhai Patel and the mother of plaintiff
Nos. 1 to 4 Chanchalben wife of Chhotabhai Ashabhai
who had expired in and around August, 1997, and since
August, 1997, deceased Chhotabhai Ashabhai was
living alone thus, taking advantage of his loneliness the
defendant on 15/11/1997 executed one gift deed which
was registered in the office of Sub-Registrar, Padra at
Sr. No. 1004 made unsuccessful efforts for grabbing the
said property thus, 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 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 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
17
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…..”
28) The appellants refer to Will dated December 3, 2001 said to be
executed by the Donor in their favour. But no issue has been
framed in respect of Will propounded by the appellants. In fact, no
attesting witness of the Will has been examined. Therefore, the Will
relied upon by the appellants cannot be said to be proved.
29) The High Court held that the appellants have not led any evidence
that signature of their father on the gift deed was forged as neither
the specimen signature nor writings of their father for the purpose
of comparing the disputed signature on the gift deed have been
attempted. There is no report of an expert in respect of signatures
of the Donor on the gift deed nor any request was made for
sending the document to the Forensic Science Laboratory. The
High Court held as under:
“67. In my view, the plaintiffs have miserably failed to
prove any forgery. If it is the case of the plaintiffs that
the signature of their father on the disputed gift deed is
forged, then the burden is on them to establish and
prove by leading cogent evidence that the signature is
forged by another. A mere doubt or assertion or an
allegation of forgery by itself is not sufficient to even
prima facie draw an inference of fraud. The plaintiffs
tried to rely upon the 'will' said to have been executed
by their late father just two days before his demise in
18
the year 2001. One of the cousins of the plaintiffs took
out the 'will' out of the blue and handed over to the
plaintiffs. The plaintiffs tried to capitalize on this 'will'
because in the said 'will', there is a thumb impression of
the father of the plaintiffs i.e. the testator. The plaintiffs
thereby tried to create a doubt in the mind of the
Courts below that the father was illiterate and was
unable to put his signature. However, if the plaintiffs
wanted to rely upon the 'will', they should have
produced the original and proved the same in
accordance with law by examining one of the attesting
witnesses to the said 'will'. The 'will' has not even been
exhibited, and therefore, there is no question of looking
into the same. The entire approach of the Trial Court
could be said to be erroneous and has led to a serious
miscarriage of justice. I am of the view that the
plaintiffs have practically led no evidence even to prima
facie create a doubt that the signature of their father on
the gift deed is forged. The plaintiffs could have
produced the specimen signature or writings of their
father, if any, for the purpose of comparing the
disputed signature on the gift deed. The Trial Court
could have been asked to seek an opinion of an expert
in this regard by sending the document to the Forensic
Science Laboratory. Nothing of this sort was done. All
that has been asserted in the evidence is that the
father had no good reason to execute the gift deed in
favour of the defendant, more particularly, when the
sons were taking good care of their father. This hardly
could be termed as evidence with regard to fraud or
forgery. The plaintiffs have not even pleaded or
deposed that their father was illiterate and was not able
to put his signature. If the evidence on record is looked
into, then the plaintiffs have in substance just
expressed doubts as regards the signature of their
father.”
30) At this stage, we may reiterate that though the learned Trial Court
has discussed the evidence on record but in view of the finding that
the property is ancestral, no finding was recorded whether the gift
deed is forged or not as per the issue framed. The First Appellate
Court in a short judgment affirmed the finding of the learned Trial
19
Court. The Trial Court has not retuned any finding that the gift
deed is forged. Therefore, the High Court was within its jurisdiction
to decide the Issue No. 1 on the basis of evidence led by the
parties.
31) The appellants challenged the gift deed on account of probabilities
as the witnesses were not related to the family or the friends or
that the gift was not for religious or charitable purposes. The other
challenge was on the ground of forgery or fabrication. The entire
reading of the plaint does not show that there was any specific
denial of execution of the gift deed.
32) The appellants have referred to the judgments in Rosammal
Issetheenammal Fernandez (Dead) by LRs & Ors. v. Joosa
Mariyan Fernandez & Ors.
11
and K. Laxmanan v. Thekkayil
Padmini & Ors.
12
. However, we find that both the judgments are
not applicable to the facts of the present case. In Rosammal, the
appellant had filed a suit for partition and challenged the execution
of the gift deed, settlement deed and the Will. The High Court
found that the execution of the gift deed was specifically denied.
After finding so, the High Court recorded the following findings:
“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. In the present case as we have
11 (2000) 7 SCC 189
12 (2009) 1 SCC 354
20
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 noncompliance of Section 68 of the Indian Evidence Act, we
uphold that the plaintiff has successfully challenged its
execution…”
33) In the facts of the said case, the High Court found that there is
specific denial of execution of the gift deed, therefore, in the
absence of examining one of the attesting witnesses, the gift deed
is not proved.
34) In K. Laxmanan, a suit was filed by daughter claiming estate of
Chathu on the basis of natural succession. The defendant (son of
Chathu) relied upon a gift deed (Ex.B-2) as well as Will in his favour.
The High Court held that both the attesting witnesses were not
examined, therefore, the gift deed and Will are not proved to be
executed. It was found that gift deed was relied upon in the written
statement which was specifically denied in the affidavit filed in
respect of injunction applications. The Court held as under:
“29. 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 6 of the Code
consist only of a plaint and a written statement. The
respondent-plaintiff could have filed a replication in
respect to 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
21
was raised in the 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.”
35) In the abovesaid case, the plaintiff claimed natural succession
whereas the defendant relied upon gift deed. In the aforesaid
judgments, it has been held as a matter of fact that there was
specific denial of execution of gift deed. 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.
36) Order VI Rule 4 of the Code of Civil Procedure, 1908 warrants that
in all cases in which allegation of any misrepresentation, fraud,
breach of trust, wilful default, or undue influence, the necessary
particulars are required to be stated in the pleadings.
37) In Badat and Co. Bombay v. East India Trading Co.
13
,
considering the provisions of Order VIII Rule 3, it was held that
written statement must deal specifically with each allegation of fact
in the plaint and when a defendant denies any such fact, he must
not do so evasively and answer the points of substance. If his
denial of the said fact is not specific but evasive, the said fact shall
be taken to be admitted.
38) The appellants went to trial on the basis of fabrication of gift deed.
The appellants have admitted the execution of the gift deed but
13 AIR 1964 SC 538
22
alleged the same to be forged or fabricated. However, the
appellants have not been able to prove any forgery in the
execution of the gift deed.
39) Dashrath Prasad Bajooram v. Lallosingh Sanmansingh &
Anr.
14
was dealing with the issue as to whether defendant No. 1
executed the mortgage deed with proper attestation and for
consideration. Considering the proviso to Section 68 of the
Evidence Act, the Court held that word ‘specific’ has to be given
some meaning appearing in proviso to Section 68. The Court held
as under:
“11. That however raises the question whether a mere
general denial of a mtge or not admitting it can be
regarded as a specific denial. It will be observed that
the proviso to Section 68 of the Evidence Act speaks of
a specific denial. Some meaning must be given to the
word ‘specific’. It must mean something over & above a
general denial. Accordingly in my judgment it is not
sufficient to have a mere general denial to; attract the
provisions of S. 68. That was the distinction drawn in
‘Jhillar v. Rajnarain’, AIR (22) 1935 All 781 at p. 784 :
(156 IC 45) & in ‘Laehman Singh v. Surendra Bahadur
Singh’, 54 All 1051 at p. 1058 : (AIR (19) 1932 All 527
FB). But those decisions must in my opinion be held to
have gone too far in view of the decision of their
Lordships of the P.C. in ‘Surendra Bahadur v. Behari
Singh’, AIR (26) 1939 PC 117 : (ILR 1939 KAR 222). In
view of what their Lordships have stated it must now be
accepted that if a party specifically says that he does
not admit a particular fact that amounts to a specific
denial within the meaning of the proviso to Section 68
of the Evidence Act. But the P.C. decision is, in my
opinion, distinguishable.
12. In the P.C. case both execution & attestation were
expressly not admitted. It was not a case of a mere
general denial of the mtge. The written statement there
was in these terms:
14 AIR 1951 Nag 343
23
“The contesting deft. does not admit the
execution & completion of the document sued
on” & at the trial, the P.C. said
“it was contended on behalf of Lachman Singh
that the execution & ‘due attestation’ of the mtge
bond……had not been proved.”
13. The case is in my opinion different when there is no
specific denial or when the fact of execution is not
specifically not admitted but there is a mere general
denial. As I have said, some meaning must be given to
the words ‘specifically denied’. So also some meaning
must be given to the provisions of O. 8 R. 3 of the CPC
which state that
“It shall not be sufficient for a deft. in his written
statement to deny generally the grounds alleged
by the pltf., but the deft. must deal specifically
with each allegation of fact of which he does not
admit the truth……”
40) In Kannan Nambiar v. Narayani Amma & Ors.
15
, the Division
Bench of the Kerala High Court was considering a suit filed by
daughter of a donee claiming share in the property. The gift deed
was admitted in evidence without any objection. The Court held
that specific denial of execution of gift is an unambiguous and
categorical statement that the donor did not execute the
document. The Court held as under:
“14. 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 3rd 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)
15 1984 SCC OnLine Ker 174 : 1984 KLT 855
24
15. 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 execution of the document by the
alleged executant cannot be gathered, for the denial
contemplated in the proviso.
xx xx xx
18. The question which elicited the above answer gives
a clear understanding of the case of the defendants as
they understood their case. Defendants have no case
that no document was executed by Anandan Nambiar.
Their case is that the document is not valid because it
had been executed under circumstances which would
render the document invalid. There is no specific denial
of the execution of the document. The respondents can
seek the aid of the proviso to S. 68 of the Evidence Act.
No defect in not calling an attesting witness to prove
the document. We do not think that we can ignore Ext.
A1 gift deed on the ground that no attesting witness
has been called for, for proving the gift deed.”
41) The facts of the present case are akin to the facts which were
before the Kerala High Court in Kannan Nambiar. The appellants
have not denied the execution of the document but alleged forgery
and fabrication. In the absence of any evidence of any forgery or
fabrication and in the absence of specific denial of the execution of
the gift deed in the manner held in Kannan Nambiar, the Donee
was under no obligation to examine one of the attesting witnesses
of the gift deed. As per evidence on record, the Donee was taking
care of the Donor for many years. The appellants were residing in
the United States but failed to take care of their parents.
25
Therefore, the father of the appellants has executed gift deed in
favour of a person who stood by him. We find that there is no error
in the findings recorded by the High Court.
42) Thus, we do not find any error in the judgment of the High Court
which may warrant interference in the present appeal and
accordingly, the appeal is dismissed.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
SEPTEMBER 23, 2019.
26
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7528 OF 2019
(ARISING OUT OF SLP (CIVIL) NO. 4382 OF 2019)
GOVINDBHAI CHHOTABHAI PATEL & ORS. .....APPELLANT(S)
VERSUS
PATEL RAMANBHAI MATHURBHAI .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1) Leave granted.
2) The order passed by the High Court of Gujarat on September 5,
2018 in second appeal is the subject matter of challenge in the
present appeal on behalf of the plaintiffs-appellants.
3) The appellants are sons of Chhotabhai Ashabhai Patel1
who died on
December 6, 2001. During his life time, he purportedly executed a
gift deed dated November 15, 1977 in favour of defendant
Ramanbhai Mathurbhai Patel2
.
4) The parties went to trial on the following issues:
(i) Whether the plaintiffs prove that the disputed gift deed is
1 for short, ‘Donor’
2 for short, ‘Donee’
1
fabricated?
(ii) Whether the plaintiffs prove that the suit properties are
ancestral properties and late Chhotabhai Ashabhai had no
right to execute the gift deed?
(iii) Whether the plaintiffs prove that the defendant has no right,
title or interest over the said property?
(iv) Whether the plaintiffs prove that they are entitled to get the
relief as prayed for?
(v) Whether the defendant proves that the plaintiffs have no right
to file the present suit?
(vi) What order and decree?
5) The High Court framed five substantial questions of law and after
giving findings on such substantial questions of law, the judgment
and decree passed by the learned Trial Court on February 10, 2014
and the judgment and decree passed by the First Appellate Court
on October 9, 2017 were set aside.
6) The findings recorded by the High Court, inter alia, are that
execution of the gift deed was not specifically denied in the suit
filed. Therefore, it is not necessary for the Donee to examine one
of the attesting witnesses in terms of proviso to Section 68 of the
Indian Evidence Act, 18723
. It is also held that the suit property is
not ancestral property. The property was purchased by Ashabhai
Patel, father of the Donor and it is by virtue of Will executed by
Ashabhai Patel, property came to be owned by the Donor in the
year 1952-1953. The High Court, thus, held that the Donor was
competent to execute the gift deed dated November 15, 1977 as
the property was not ancestral in the hands of Donor. The relevant
3 for short, ‘Evidence Act’
2
findings on such questions which arose for consideration in the
second appeal, read as under:
“92. Once again, at the cost of repetition, I state that
Section 68 of the Evidence Act has been thoroughly
misconstrued by the Courts below. The occasion for
applying the rule of exclusion from evidence in Section
68 arises when a party seeking to rely upon a document
requiring attestation, fails to prove it in a given manner.
As observed by me earlier, the party will then not be
able to use it as evidence. But this procedural disability
against use of a document as evidence cannot by any
stretch be regarded as an affirmative finding that the
grounds of attack for avoidance of the deed as claimed
in the original relief or cancellation subsisted. The
plaintiff cannot succeed relying upon the weakness or a
flaw in the case set up by the defendant. The law is
that the plaintiff can succeed in the suit only on the
strength of his own case.
xx xx xx
105. The case of the plaintiffs is very specific.
According to them, the suit properties were purchased
by their grandfather and those properties came to be
devolved upon their father by Testamentary disposition
i.e. on the strength of the will of their grandfather. The
Hindu Law, as it stands today, clearly postulates that if
it is a self-acquired property of the father, it falls into
the hands of his sons not as coparcenary property, but
would devolve on them in their individual capacity.
Where the property is a self-acquired property of the
father, it falls into the hands of his son in his individual
capacity and not as coparcenary property in such case
son’s son cannot claim right in such property.
xx xx xx
108. In view of the above, I hold that the suit properties
devolved upon the father of the plaintiffs could not be
said to be coparcenary property. The properties were
purchased by the grandfather of the plaintiffs, as
pleaded and admitted by the plaintiffs themselves.
Such self-acquired properties of the grandfather came
to be devolved upon the father of the plaintiffs by way
of a ‘will’ i.e. testamentary disposition. In such
circumstances, it could be said that the properties are
3
self-acquired properties of the father of the plaintiffs.
The succession would have been in accordance with
Section 8 of the Hindu Succession Act. When the
properties could be said to be self-acquired properties
of the father of the plaintiffs, then the father could have
definitely transferred those properties by way of a gift
deed.
xx xx xx
114. In view of the above, I hold that the suit properties
were self-acquired properties of the father of the
plaintiffs, and in such circumstances, it was open for the
father of the plaintiffs to execute the gift deed in favour
of the defendant.”
7) Learned counsel for the appellants submitted that the High Court
has exceeded its jurisdiction in second appeal as findings recorded
by the First Appellate Court were not specifically dealt with. It is,
thus, argued that the interference in the second appeal is contrary
to judgment of this Court in Thulasidhara & Anr. v.
Narayanappa & Ors.
4
. It is argued that the appellants have
produced old revenue record and from the documents (Exhibits 107
to 126), the property is proved to be ancestral and such is the
finding recorded by the Trial Court and the First Appellate Court.
Such evidence was not controverted by the Donee. It is argued
that the findings recorded by the High Court that the property
devolved on the Donor by virtue of a Will, therefore, it ceases to be
an ancestral property is contrary to the judgment of this Court in
C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar &
Anr.
5
. The reliance is also placed upon judgment of this Court in
4 (2019) 6 SCC 409
5 AIR 1953 SC 495
4
Shyam Narayan Prasad v. Krishna Prasad & Ors.
6
that selfacquired property of a grandfather devolves upon his son as
ancestral property.
8) On the other hand, learned counsel for the Donee argued that the
plaintiffs have failed to prove that the property was ancestral
property after admitting that their grandfather has purchased the
property and given it under Will to their father to the exclusion of
other family members. The argument raised by learned counsel for
the appellants that the High Court has exceeded its jurisdiction by
reversing the findings of fact recorded by the First Appellate Court
does not hold good as the very reasoning recorded has been found
to be illegal. It is argued that judgment in C.N. Arunachala
Mudaliar is to the effect that the property bequeathed or gifted to
a son by a Mitakshara father will be treated as self-acquired
property in the hands of Donee.
9) The first and the foremost question required to be examined is as
to whether the appellants have proved that the property in the
hands of Donor was ancestral property.
10) Govindbhai Chhotabhai Patel (PW-1) has stated, vide Exhibit 34,
that the property in question was purchased by his grandfather
Ashabhai Patel and after death of his grandfather, property was
owned by the Donor according to the inheritance since 1952-1953.
The appellants stated in the cross-examination that there was
6 (2018) 7 SCC 646
5
family partition in the year 1964 between the Donor and his two
brothers Chimanbhai Patel and Motibhai Patel. It is, thus, sought to
be argued that since the property was partitioned in 1964,
therefore, the Donor has acquired the property not as self-acquired
property but as ancestral property.
11) We find that a statement in the cross-examination that there was
partition between the Donor and his two brothers will not make the
property ancestral in the hands of Donor. The Will executed by the
father of Donor has not been produced by the appellants to show
as to what was intended by his grandfather when the Will was
executed in favour of Donor. It is admitted fact that grandfather
purchased the property, thus, such self-acquired property came to
be bequeathed to the Donor even as per the judgment relied upon
by the Appellant.
12) This Court in three Judge Bench in C.N. Arunachala Mudaliar
considered the question as to whether the properties acquired by
defendant No. 1 under Will are to be regarded as ancestral or selfacquired property in his hands. It is a case where the plaintiff
claimed partition of the property in a suit filed against his father
and brother. The stand of the father was that the house property
was the self-acquired properties of his father and he got them
under a Will executed in the year 1912. It was held that father of a
Joint Hindu family governed by Mitakshara law has full and
uncontrolled powers of disposition over his self-acquired immovable
6
property and his male issue could not interfere with these rights in
any way. The Court while examining the question as to what kind
of interest a son would take in the self-acquired property of his
father which he receives by gift or testamentary bequest from him,
it was held that Mitakshara father has absolute right of disposition
over his self-acquired property to which no exception can be taken
by his male descendants. It was held that it was not possible to
hold that such property bequeathed or gifted to a son must
necessarily rank as ancestral property. It was further held that a
property gifted by a father to his son could not become ancestral
property in the hands of the donee simply by reason of the fact
that the donee got it from his father or ancestor.
13) The Court found that such questions have been answered in
different ways by different High Courts. The Calcutta High Court
held that properties become ancestral property in the hands of his
son as if he had inherited it from his father but in other High
Courts, the question is treated as one of construction to be decided
in each case with reference to its facts as to whether the gifted
property was intended to pass to the sons as ancestral or selfacquired property.
14) The Bombay High Court in Jugmohan Das v. Sir Mangal Das
7
held that if the son takes by devise, the property continues to be
self-acquired in his hands. A man can give away his self-acquired
7 (1886) I.L.R. 10 Bom 528
7
property to whomsoever it pleases, including his own sons and that
property so given would be considered self-acquired in the hands of
the donee. The Court held as under:
“I now come to the question, whether a son, to whom a
father leaves his self-acquired property by will, takes
the estate by devise or by descent. This is a most
important point, perhaps the most important point in
the case. For, if the son takes by devise, the property
would, in my opinion, continue to be self-acquired in his
hands, and a ready means would be afforded by the use
of the testamentary power of checking enforced
partitions…
xx xx xx
The principle is now settled beyond question, that
under Hindu law a man may alienate his property to the
same extent by a will as he might by a gift inter vivos.
In the Tagore Case (Ind. Ap. Sup. Vol. at p. 68) their
Lordships of the Privy Council say: “A gift by will is, until
revocation, a continuous act of gift up to the moment of
death, and does then operate to give the property
disposed of to the persons designated as beneficiaries.
They take, upon the death of the testator, as if he had
given the property in his life-time.”
A bequest by will, therefore, is a gift made in
contemplation of death. It only differs from a gift in the
fact that it takes effect at a future time instead of
immediately. But it must clearly be governed and
controlled by the general rules regarding gift. Now,
there is no doubt that a man can give away selfacquired property to whomsoever he pleases, including
his own sons; and there is no doubt that property so
given would be considered self-acquired in the hands of
the donee. It would, therefore, follow that property
given by will would equally be self-acquired in the
hands of the devisee.”
15) Such view of the Bombay High Court was accepted by the
Allahabad High Court8
and the Lahore High Court9
. This Court in
8 Parsotam v. Janki Bai, ILR 29 All 354
9 Amarnath v. Guran, AIR 1918 Lah 394
8
C.N. Arunachala Mudaliar approved the view of the Bombay
High Court and held as under:
“9. … It was held, therefore, that the father of a joint
Hindu family governed by Mitakshara law has full and
uncontrolled powers of disposition over his self-acquired
immovable property and his male issue could not
interfere with these rights in any way. This statement of
the law has never been challenged since then and it has
been held by the various High Courts in India, and in
our opinion rightly, that a Mitakshara father is not only
competent to sell his self-acquired immovable property
to a stranger without the concurrence of his sons
[Vide Muddun v. Ram, 6 WR 71] but he can make a gift
of such property to one of his own sons to the detriment
of another [ Vide Sital v. Madho, ILR 1 All 394] ; and he
can make even an unequal distribution amongst his
heirs [Vide Bawa v. Rajah, 10 WR 287].
10. So far the law seems to be fairly settled and there
is no room for controversy. The controversy arises,
however, on the question as to what kind of interest a
son would take in the self-acquired property of his
father which he receives by way of gift or testamentary
bequest from him, vis-a-vis his own male issue. Does it
remain self-acquired property in his hands also,
untrammeled by the rights of his sons and grandsons or
does it become ancestral property in his hands, though
not obtained by descent, in which his male issue
become co-owners with him?......
11. In view of the settled law that a Mitakshara father
has right of disposition over his self-acquired property
to which no exception can be taken by his male
descendants, it is in our opinion not possible to hold
that such property bequeathed or gifted to a son must
necessarily, and under all circumstances, rank as
ancestral property in the hands of the donee in which
his sons would acquire co-ordinate interest…”
16) Still further, it was held that the father’s gifts are exempt from
partition. The reason for this distinction is that the theory of equal
ownership between the father and the son in the ancestral property
9
is not applicable to the father’s gifts at all. The Court held as
under:
“12. …But when the father obtains the grandfather's
property by way of gift, he receives it not because he is
a son or has any legal right to such property but
because his father chose to bestow a favour on him
which he could have bestowed on any other person as
well. The interest which he takes in such property must
depend upon the will of the grantor. A good deal of
confusion, we think, has arisen by not keeping this
distinction in mind. To find out whether a property is or
is not ancestral in the hands of a particular person, not
merely the relationship between the original and the
present holder but the mode of transmission also must
be looked to; and the property can ordinarily be
reckoned as ancestral only if the present holder has got
it by virtue of his being a son or descendant of the
original owner. The Mitakshara, we think, is fairly clear
on this point. It has placed the father's gifts under a
separate category altogether and in more places than
one has declared them exempt from partition. Thus in
Chapter I, Section 1, Placitum 19 Mitakshara refers to a
text of Narada which says:
“Excepting what is gained by valour, the wealth
of a wife and what is acquired by science which
are three sorts of property exempt from
partition; and any favour conferred by a father.”
xx xx xx
15. Another argument is stressed in this connection,
which seems to have found favour with the learned
Judges of the Patna High Court who decided the Full
Bench case [Vide Bhagwat v. Mst. Kaporni, ILR 23 Pat
599] referred to above. It is said that the exception in
regard to father's gift as laid down in placitum 28 has
reference only to partition between the donee and his
brothers but so far as the male issue of the donee is
concerned, it still remains partible. This argument, in
our opinion, is not sound. If the provision relating to
self-acquisition is applicable to all partitions, whether
between collaterals or between the father and his sons,
there is no conceivable reason why placitum 28, which
occurs in the same chapter and deals with the identical
topic, should not be made applicable to all cases of
10
partition and should be confined to collaterals alone.
The reason for making this distinction is undoubtedly
the theory of equal ownership between the father and
the son in the ancestral property which we have
discussed already and which in our opinion is not
applicable to the father's gifts at all. Our conclusion,
therefore, is that a property gifted by a father to his son
could not become ancestral property in the hands of the
donee simply by reason of the fact that the donee got it
from his father or ancestor.”
17) This Court further held that on reading of the Will as a whole, the
conclusion becomes clear that the testator intended the legatees
to take the properties in absolute rights as their own self-acquired
property without being fettered in any way by the rights of their
sons and grandsons. In other words, he did not intend that the
property should be taken by the sons as ancestral property.
Consequently, the appeal was allowed and the suit for partition by
the son against his father was dismissed.
18) In other case reported as Pulavarthi Venkata Subba Rao & Ors.
v. Valluri Jagannadha Rao (deceased) by his Heirs & LRs &
Ors.
10
, life estate was given by Valluri Jagannadha Rao to his two
sons, Srivatsankara Rao and Narasimha Rao. There was a condition
that if any of his sons left no son, the sons of his other son would
be entitled to the properties at the end of the life estate. The High
Court held that the properties taken by two sons of Narasimha Rao
under Will were their separate properties and not ancestral
properties as there was no such intention in the Will. This Court
held as under:
10 AIR 1967 SC 591
11
“8. The contention of the judgment-debtors was that
there were two persons who were legatees under the
will. They took the villages not as ancestral properties
but as self-acquired properties, and
the peshkash payable on these two villages must be
divided between them before Section 3(ii), proviso (D)
of the Act was made applicable. The contention on the
side of the decree-holders was that these properties
were held by an undivided Hindu family and the sons of
Narasimha Rao took the properties under the will as
ancestral properties, and the peshkash in respect of the
two villages must be added together for the purpose of
the application of the said proviso. The High Court held
that the properties taken by the two sons of Narasimha
Rao under the will, were their separate properties and
not ancestral properties, as there were no words to
show a contrary intention. The High Court also referred
to the conduct of the respondents in partitioning the
villages and held that the property was held not jointly
but in definite shares. The High Court, therefore, held
that the peshkash in respect of the two villages could
not be aggregated. The High Court, accordingly, broke
up the peshkash in respect of Kalagampudi and the
three-fifth share of Pedamamidipalli into two halves and
held that as each son of Narasimha Rao was required to
pay only his share, the peshkash paid by them
individually did not exceed Rs 500 mentioned in proviso
(D), and that the judgment-debtors were, therefore,
agriculturists. This part of the case was not challenged
before us by the learned Advocate-General of Andhra
Pradesh. Indeed, the decision of the High Court is
supported by C.N. Arunachala Mudaliar v. C.A.
Muruganatha Mudaliar [(1954) SCR 243], in respect of
the character of the property inherited by the two sons
of Narasimha Rao, and this fundamental fact could not
be questioned…..”
19) Learned counsel for the appellants has referred to Shyam
Narayan Prasad. That is a case in which the property in question
was held to be ancestral property by the Trial Court. The plaintiffs
therein being sons and grandson of one of the sons of Gopal
Prasad, the last male holder was found to have equal share in the
12
property. The question examined was whether the property
allotted to one of the sons of Gopal Prasad in partition retains the
character of coparcenary property. It was the said finding which
was affirmed by this Court. This Court held as under:
“12. It is settled that the property inherited by a male
Hindu from his father, father's father or father's father's
father is an ancestral property. The essential feature of
ancestral property, according to Mitakshara Law, is that
the sons, grandsons, and great grandsons of the person
who inherits it, acquire an interest and the rights
attached to such property at the moment of their birth.
The share which a coparcener obtains on partition of
ancestral property is ancestral property as regards his
male issue. After partition, the property in the hands of
the son will continue to be the ancestral property and
the natural or adopted son of that son will take interest
in it and is entitled to it by survivorship.”
20) The question examined in the aforesaid case was in respect of
status of the property after partition. The said question is not
arising in the present case as it is not a question of partition but
testamentary succession in favour of the Donee.
21) In view of the undisputed fact, that Ashabhai Patel purchased the
property, therefore, he was competent to execute the Will in favour
of any person. Since the beneficiary of the Will was his son and in
the absence of any intention in the Will, beneficiary would acquire
the property as self-acquired property in terms of C.N.
Arunachala Mudaliar case. The burden of proof that the property
was ancestral was on the plaintiffs alone. It was for them to prove
that the Will of Ashabhai intended to convey the property for the
benefit of the family so as to be treated as ancestral property. In
13
the absence of any such averment or proof, the property in the
hands of Donor has to be treated as self-acquired property. Once
the property in the hands of Donor is held to be self-acquired
property, he was competent to deal with his property in such a
manner he considers as proper including by executing a gift deed
in favour of a stranger to the family.
22) The other material question is whether the appellants have
specifically denied the execution of the gift deed in terms of proviso
to Section 68 of the Evidence Act, to make it mandatory for the
defendant to examine one of the attesting witnesses to prove the
Gift deed in his favour.
23) Section 68 of the Evidence Act, reads as under:
“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.”
24) A gift deed is required to be compulsorily attested in terms of
Section 123 of the Transfer of Property Act, 1882. Similar is the
provision in respect of execution of a Will which is required to be
14
attested in terms of Section 63 of the Indian Succession Act, 1925.
Section 68 of the Evidence Act makes it mandatory to examine one
of the attesting witnesses for the purpose of proving of the
execution of Will but such limitation is not applicable in respect of
proof of execution of any document which has been registered in
accordance with provisions of the Indian Registration Act, 1908,
unless the execution is specifically denied.
25) The gift deed (Ex.104) is registered and that all the requirements of
Section 123 of the Transfer of Property Act have been fulfilled, is
the finding of the Trial Court. The learned Trial Court recorded the
following findings:
“However, as far as it is concerned with the gift deed of
Exh-104, in order to prove that Late Chhotabhai
Ashabhai executed this gift deed in favour of the
defendant in fully conscious state, it is necessary as per
section – 123 of the Transfer of Property Act that this
gift deed should be signed by the executer in presence
of the two witnesses that means it should be executed
in the presence of two attesting witnesses. Moreover, it
should be proved that such gift deed is registered.
Looking to the gift deed at Exh – 104, it is an
undisputable fact that it is properly registered before
the Sub Registrar, Padra. It is also an indisputable fact
that (1) Bhikhabhai Ramabhai and (2) Karshanbhai
Dhulabhai have put their signatures in this gift deed as
the attesting witnesses. Thus, it is found that all the
requirements of section 123 of the Transfer of Property
Act have been fulfilled. However, along with this, it is
also necessary to examine the attesting witnesses of
the deed.”
26) The argument of the learned counsel for the appellants is that the
attesting witnesses of the gift deed are Bhikhabhai Ramabhai and
15
Karsanbhai Dhulabhai, whereas Solanki Bhikhabhai Ramabhai and
Vaid Alkaben Vinodchandra are the witnesses at the time of
registration of the document. It is argued that the attesting
witnesses of the document have not been examined which is a
mandatory requirement to prove execution of the gift deed in terms
of Section 68 of the Evidence Act. The High Court has held that the
appellants have not denied specifically the execution of the gift
deed, therefore, it was not necessary for the Donee to examine one
of the attesting witnesses.
27) The issue No. 1 framed by the Trial Court is whether the gift deed is
fabricated. Such issue arises on the basis of averments made in
the plaint wherein, the appellants have admitted the execution of
the gift deed but alleged that Donee has made unsuccessful effort
for grabbing the property. The appellants have, inter alia, pleaded
that Chanchalben, wife of the Donor, died in August, 1997. Thus,
there was no reason for the Donor to execute the gift deed as real
nephews of the Donor were taking complete control of the Donor.
The other ground of challenge was that the attesting witnesses
have no relation with the Donor nor they are friends of the Donor.
It was also alleged that the gift is not for religious reasons or to any
religious trust or institution or for public use nor the consent has
been sought by the Donor from the appellants. The specific
averments in the plaint are as under:
“2) The deceased Chhotabhai Ashabhai who was the
father of plaintiff Nos. 1 to 4 and plaintiff Nos. 1 to 4
were living in USA (America) since many years and the
16
deceased Chhotabhai Patel and the mother of plaintiff
Nos. 1 to 4 Chanchalben wife of Chhotabhai Ashabhai
who had expired in and around August, 1997, and since
August, 1997, deceased Chhotabhai Ashabhai was
living alone thus, taking advantage of his loneliness the
defendant on 15/11/1997 executed one gift deed which
was registered in the office of Sub-Registrar, Padra at
Sr. No. 1004 made unsuccessful efforts for grabbing the
said property thus, 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 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 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
17
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…..”
28) The appellants refer to Will dated December 3, 2001 said to be
executed by the Donor in their favour. But no issue has been
framed in respect of Will propounded by the appellants. In fact, no
attesting witness of the Will has been examined. Therefore, the Will
relied upon by the appellants cannot be said to be proved.
29) The High Court held that the appellants have not led any evidence
that signature of their father on the gift deed was forged as neither
the specimen signature nor writings of their father for the purpose
of comparing the disputed signature on the gift deed have been
attempted. There is no report of an expert in respect of signatures
of the Donor on the gift deed nor any request was made for
sending the document to the Forensic Science Laboratory. The
High Court held as under:
“67. In my view, the plaintiffs have miserably failed to
prove any forgery. If it is the case of the plaintiffs that
the signature of their father on the disputed gift deed is
forged, then the burden is on them to establish and
prove by leading cogent evidence that the signature is
forged by another. A mere doubt or assertion or an
allegation of forgery by itself is not sufficient to even
prima facie draw an inference of fraud. The plaintiffs
tried to rely upon the 'will' said to have been executed
by their late father just two days before his demise in
18
the year 2001. One of the cousins of the plaintiffs took
out the 'will' out of the blue and handed over to the
plaintiffs. The plaintiffs tried to capitalize on this 'will'
because in the said 'will', there is a thumb impression of
the father of the plaintiffs i.e. the testator. The plaintiffs
thereby tried to create a doubt in the mind of the
Courts below that the father was illiterate and was
unable to put his signature. However, if the plaintiffs
wanted to rely upon the 'will', they should have
produced the original and proved the same in
accordance with law by examining one of the attesting
witnesses to the said 'will'. The 'will' has not even been
exhibited, and therefore, there is no question of looking
into the same. The entire approach of the Trial Court
could be said to be erroneous and has led to a serious
miscarriage of justice. I am of the view that the
plaintiffs have practically led no evidence even to prima
facie create a doubt that the signature of their father on
the gift deed is forged. The plaintiffs could have
produced the specimen signature or writings of their
father, if any, for the purpose of comparing the
disputed signature on the gift deed. The Trial Court
could have been asked to seek an opinion of an expert
in this regard by sending the document to the Forensic
Science Laboratory. Nothing of this sort was done. All
that has been asserted in the evidence is that the
father had no good reason to execute the gift deed in
favour of the defendant, more particularly, when the
sons were taking good care of their father. This hardly
could be termed as evidence with regard to fraud or
forgery. The plaintiffs have not even pleaded or
deposed that their father was illiterate and was not able
to put his signature. If the evidence on record is looked
into, then the plaintiffs have in substance just
expressed doubts as regards the signature of their
father.”
30) At this stage, we may reiterate that though the learned Trial Court
has discussed the evidence on record but in view of the finding that
the property is ancestral, no finding was recorded whether the gift
deed is forged or not as per the issue framed. The First Appellate
Court in a short judgment affirmed the finding of the learned Trial
19
Court. The Trial Court has not retuned any finding that the gift
deed is forged. Therefore, the High Court was within its jurisdiction
to decide the Issue No. 1 on the basis of evidence led by the
parties.
31) The appellants challenged the gift deed on account of probabilities
as the witnesses were not related to the family or the friends or
that the gift was not for religious or charitable purposes. The other
challenge was on the ground of forgery or fabrication. The entire
reading of the plaint does not show that there was any specific
denial of execution of the gift deed.
32) The appellants have referred to the judgments in Rosammal
Issetheenammal Fernandez (Dead) by LRs & Ors. v. Joosa
Mariyan Fernandez & Ors.
11
and K. Laxmanan v. Thekkayil
Padmini & Ors.
12
. However, we find that both the judgments are
not applicable to the facts of the present case. In Rosammal, the
appellant had filed a suit for partition and challenged the execution
of the gift deed, settlement deed and the Will. The High Court
found that the execution of the gift deed was specifically denied.
After finding so, the High Court recorded the following findings:
“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. In the present case as we have
11 (2000) 7 SCC 189
12 (2009) 1 SCC 354
20
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 noncompliance of Section 68 of the Indian Evidence Act, we
uphold that the plaintiff has successfully challenged its
execution…”
33) In the facts of the said case, the High Court found that there is
specific denial of execution of the gift deed, therefore, in the
absence of examining one of the attesting witnesses, the gift deed
is not proved.
34) In K. Laxmanan, a suit was filed by daughter claiming estate of
Chathu on the basis of natural succession. The defendant (son of
Chathu) relied upon a gift deed (Ex.B-2) as well as Will in his favour.
The High Court held that both the attesting witnesses were not
examined, therefore, the gift deed and Will are not proved to be
executed. It was found that gift deed was relied upon in the written
statement which was specifically denied in the affidavit filed in
respect of injunction applications. The Court held as under:
“29. 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 6 of the Code
consist only of a plaint and a written statement. The
respondent-plaintiff could have filed a replication in
respect to 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
21
was raised in the 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.”
35) In the abovesaid case, the plaintiff claimed natural succession
whereas the defendant relied upon gift deed. In the aforesaid
judgments, it has been held as a matter of fact that there was
specific denial of execution of gift deed. 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.
36) Order VI Rule 4 of the Code of Civil Procedure, 1908 warrants that
in all cases in which allegation of any misrepresentation, fraud,
breach of trust, wilful default, or undue influence, the necessary
particulars are required to be stated in the pleadings.
37) In Badat and Co. Bombay v. East India Trading Co.
13
,
considering the provisions of Order VIII Rule 3, it was held that
written statement must deal specifically with each allegation of fact
in the plaint and when a defendant denies any such fact, he must
not do so evasively and answer the points of substance. If his
denial of the said fact is not specific but evasive, the said fact shall
be taken to be admitted.
38) The appellants went to trial on the basis of fabrication of gift deed.
The appellants have admitted the execution of the gift deed but
13 AIR 1964 SC 538
22
alleged the same to be forged or fabricated. However, the
appellants have not been able to prove any forgery in the
execution of the gift deed.
39) Dashrath Prasad Bajooram v. Lallosingh Sanmansingh &
Anr.
14
was dealing with the issue as to whether defendant No. 1
executed the mortgage deed with proper attestation and for
consideration. Considering the proviso to Section 68 of the
Evidence Act, the Court held that word ‘specific’ has to be given
some meaning appearing in proviso to Section 68. The Court held
as under:
“11. That however raises the question whether a mere
general denial of a mtge or not admitting it can be
regarded as a specific denial. It will be observed that
the proviso to Section 68 of the Evidence Act speaks of
a specific denial. Some meaning must be given to the
word ‘specific’. It must mean something over & above a
general denial. Accordingly in my judgment it is not
sufficient to have a mere general denial to; attract the
provisions of S. 68. That was the distinction drawn in
‘Jhillar v. Rajnarain’, AIR (22) 1935 All 781 at p. 784 :
(156 IC 45) & in ‘Laehman Singh v. Surendra Bahadur
Singh’, 54 All 1051 at p. 1058 : (AIR (19) 1932 All 527
FB). But those decisions must in my opinion be held to
have gone too far in view of the decision of their
Lordships of the P.C. in ‘Surendra Bahadur v. Behari
Singh’, AIR (26) 1939 PC 117 : (ILR 1939 KAR 222). In
view of what their Lordships have stated it must now be
accepted that if a party specifically says that he does
not admit a particular fact that amounts to a specific
denial within the meaning of the proviso to Section 68
of the Evidence Act. But the P.C. decision is, in my
opinion, distinguishable.
12. In the P.C. case both execution & attestation were
expressly not admitted. It was not a case of a mere
general denial of the mtge. The written statement there
was in these terms:
14 AIR 1951 Nag 343
23
“The contesting deft. does not admit the
execution & completion of the document sued
on” & at the trial, the P.C. said
“it was contended on behalf of Lachman Singh
that the execution & ‘due attestation’ of the mtge
bond……had not been proved.”
13. The case is in my opinion different when there is no
specific denial or when the fact of execution is not
specifically not admitted but there is a mere general
denial. As I have said, some meaning must be given to
the words ‘specifically denied’. So also some meaning
must be given to the provisions of O. 8 R. 3 of the CPC
which state that
“It shall not be sufficient for a deft. in his written
statement to deny generally the grounds alleged
by the pltf., but the deft. must deal specifically
with each allegation of fact of which he does not
admit the truth……”
40) In Kannan Nambiar v. Narayani Amma & Ors.
15
, the Division
Bench of the Kerala High Court was considering a suit filed by
daughter of a donee claiming share in the property. The gift deed
was admitted in evidence without any objection. The Court held
that specific denial of execution of gift is an unambiguous and
categorical statement that the donor did not execute the
document. The Court held as under:
“14. 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 3rd 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)
15 1984 SCC OnLine Ker 174 : 1984 KLT 855
24
15. 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 execution of the document by the
alleged executant cannot be gathered, for the denial
contemplated in the proviso.
xx xx xx
18. The question which elicited the above answer gives
a clear understanding of the case of the defendants as
they understood their case. Defendants have no case
that no document was executed by Anandan Nambiar.
Their case is that the document is not valid because it
had been executed under circumstances which would
render the document invalid. There is no specific denial
of the execution of the document. The respondents can
seek the aid of the proviso to S. 68 of the Evidence Act.
No defect in not calling an attesting witness to prove
the document. We do not think that we can ignore Ext.
A1 gift deed on the ground that no attesting witness
has been called for, for proving the gift deed.”
41) The facts of the present case are akin to the facts which were
before the Kerala High Court in Kannan Nambiar. The appellants
have not denied the execution of the document but alleged forgery
and fabrication. In the absence of any evidence of any forgery or
fabrication and in the absence of specific denial of the execution of
the gift deed in the manner held in Kannan Nambiar, the Donee
was under no obligation to examine one of the attesting witnesses
of the gift deed. As per evidence on record, the Donee was taking
care of the Donor for many years. The appellants were residing in
the United States but failed to take care of their parents.
25
Therefore, the father of the appellants has executed gift deed in
favour of a person who stood by him. We find that there is no error
in the findings recorded by the High Court.
42) Thus, we do not find any error in the judgment of the High Court
which may warrant interference in the present appeal and
accordingly, the appeal is dismissed.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
SEPTEMBER 23, 2019.
26
