K. Laxmanan Vs.
Thekkayil Padmini & Ors.  INSC 2076 (3 December 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2008 (Arising out of
SLP(C) No. 21251 of 2006) K. Laxmanan ....Appellant Versus Thekkayil Padmini
& Ors. .... Respondents
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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
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.
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].
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.
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].
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
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
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.
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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.
(Dr. Mukundakam Sharma)