Issetheenammal Fernandez & Ors Vs. Joosa Mariyan Fernandez & Ors 
INSC 421 (9 August 2000)
& Y.K. Sabharwal
Heard learned counsel for the parties.
short question raised is, whether the High Court was right to entertain Exhibit
B-1 in evidence, in view of proviso to Section 68 of the Indian Evidence Act.
short facts are, the appellants filed the suit for partition of the plaint
Schedule property claiming 2/5th share as parties are Roman Catholic Christians
of Latin rite and as per custom in the community, both daughters and sons get
equal share. The appellant also challenged the execution of the gift deed
Exhibit B-1 and the Settlement Deed Exhibit B-2. The trial court dismissed the
suit with the finding that the plaintiffs have not proved the existence of any
custom, by which the male and female heirs share equally to the property of a
deceased dying intestate.
claim of the property is from Jossa Mariyan Fernandez (deceased). The court
held that Jaius Fernandez was not in a position to execute the documents on the
alleged date i.e.
12th of November, 1973.
Aggrieved by the same, the appellants filed an appeal. The appellate court,
after permitting to bring on record, two additional documents, remanded the
case back for fresh determination. After remand the trial court decreed the
suit and held that the custom alleged has been proved and disbelieved the
execution of the said two documents. The respondents appeal by the appellate
court was allowed and the trial court judgment was set aside. The appellants
second appeal was dismissed.
High Court held the issue of custom has become irrelevant in view of the
decision of this Court that succession among Christians in Travancore is
governed by Indian Succession Act under which daughter also gets right to
succeed. However, considering the execution of the said two documents with
reference to the gift deed which we are concerned, in the absence of any of the
attesting witness being examined, the High Court held as there was no specific
denial of this document by the plaintiff hence, proviso to Section 68 of the
Evidence Act will apply.
High Court records; In fact, in this case there is no specific denial of the
execution of the documents and it is really a case for setting aside the
documents on the ground of vitiating circumstances and in such a case, it is
difficult to infer a specific denial of the execution of the documents within
the meaning of that proviso.
finding of the High Court is challenged by the learned counsel for the
appellant. He submits that actually there is specific denial of the execution
of this document but the High Court has perfunctorily considered this. The
existence of denial is very clear in the pleading itself.
the High Court and the appellate court drew this inference based on the
testimony of PW-5. The relevant portion of the High Court order is quoted
PW-5 had to admit that he and his brother DW-3 signed in the document on the
particular day after the document was prepared at their office and that Jusa Maryan
Fernandez was present there then.
relevant portion of the appellate court reads as under:
cross examination he admitted that Exhibit B-2 is a settlement deed executed by
Joos Marian Fernandez and that the document was also prepared as per the
directions of the executant. DW-3 is the document writer who prepared both
this part of the testimony which seems to have favoured the courts to construe
that there was no specific denial.
find the High Court committed error by drawing such inference. 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. In fact
the very finding of the High Court; it is difficult to infer a specific denial
of the execution of the document shows uncertainly and vagueness in drawing
such inference. In considering applicability of proviso to Section 68 the
finding should be clearly specific and not vaguely or negatively drawn. 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 takes up its stand
in respect of facts which they plead. In the present case, we find that the
relevant part of the pleading is recorded in the judgment of the trial court
dated 17th August, 1977 which is the judgment prior to the
remand. The judgment records the pleadings to the following effect:
gift deed No. 1763/73 and settlement deed No.
were brought into existence fraudulently without the knowledge and consent of Jaius
Mariyan Fernandus. On the date of the alleged execution of the above said two
documents Jaius Mariya Fernandus was confined to bed due to paralysis. At that
time he was not in a position to execute any document. In executing the
documents defendants 1 and 2 forged the signature of their father after
influencing the sub-registrar.
aforesaid pleading leaves to no room of doubt about denial of execution of the
said documents. The pleading records, that defendant Nos. 1 and 2 forged the
signature of the father after influencing the sub-registrar. The denial cannot
be more stronger than what is recorded here.
when there is denial made by the plaintiff, it cannot be doubted that the
proviso will not be attracted. The main Part of Section 68 of the Indian
Evidence Act puts an obligation on the party tendering any document that unless
at least one attesting witness has been called for proving such execution the
same shall not be used in evidence.
68 of the Indian Evidence Act; 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;
that it shall not be necessary to call at 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, XVI of 1908
unless its execution by the person by whom it purports to have been executed is
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 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 non-compliance
of Section 68 of the Indian Evidence Act, we uphold that the plaintiff has
successfully challenged its execution. The gift deed accordingly fails and the
findings of the High Court contrary are set aside. In view of this no right
under this document accrue to the concerned respondent over Schedule A property
which is covered by this gift deed.
High Court order to this extent stand set aside.
claim of the appellant to the extent of 2/5th share over Schedule A property
succeeds. Accordingly, the present appeal is partly allowed. Costs on the