Is it mandatory to lead evidence of Attesting Witness to prove Gift Deed? Supreme Court answers

In a significant judgment delivered last week, the Supreme Court held that unless the execution of a Gift Deed is specifically denied, it is not mandatory to specifically lead the evidence of an attesting witness under Section 68 of the Indian Evidence Act to prove the Gift Deed..The judgment by a Bench of Justices L Nageswara Rao and Hemant Gupta ruled on the scope of the expression “specifically denied” in Section 68 of the Indian Evidence Act..The Court also ruled on another aspect in the judgment – on the law of self-acquired property under a Will..Facts .The appellants were sons of Chhotabhai Ashabhai Patel who died on December 6, 2001. During his lifetime, Chhotabhai Ashabhai Patel purportedly executed a gift deed dated November 15, 1977 in favour of defendant Ramanbhai Mathurbhai Patel..The Gift Deed was challenged by the appellants on various grounds. The rulings in favour of the appellants by the trial court and first appellate court were set aside by the Gujarat High Court which held that 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, 1872..It was also held that the suit property was not ancestral property. The property was purchased by Ashabhai Patel, father of the Donor (Chhotabhai Ashabhai Patel) and it is by virtue of Will executed by Ashabhai Patel that the 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..Issue no. 1 – Law on self-acquired property under a Will.The first and the foremost question which was examined was whether the appellants had proved that the property in the hands of Donor was ancestral property..It was argued by the appellants that they had produced old revenue records and from the documents, the property was proved to be ancestral. Finding to that effect was recorded by the Trial Court and the First Appellate Court. Such evidence was not controverted by the Donee. It was 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 CN Arunachala Mudaliar v. CA Muruganatha Mudaliar & Anr. Reliance was also placed upon judgment of this Court in Shyam Narayan Prasad v. Krishna Prasad & Ors. that self-acquired property of a grandfather devolves upon his son as ancestral property..On the other hand, counsel for the Donee argued that the plaintiffs 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. It was argued that judgment in CN 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..The Court noted that appellant Govindbhai Chhotabhai Patel had stated that the property in question was purchased by his grandfather Ashabhai Patel and after the 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 family partition in the year 1964 between the Donor and his two brothers Chimanbhai Patel and Motibhai Patel. It was, 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..The Court made it clear 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 the Donor. The Will executed by the father of the 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 was admitted fact that grandfather purchased the property, thus, such self-acquired property came to be bequeathed to the Donor..The Court referred to the law laid down in CN Arunachal Mudaliar, in which it was held that if it was clear from reading a Will as a whole that the testator had 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, and did not intend that the property should be taken by the sons as ancestral property, then the properties would be held by the legatees as their self-acquired properties..“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…”.In the instant case, it was an 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, in the absence of any intention in the Will, beneficiary would acquire the property as self-acquired property in terms of CN Arunachala Mudaliar case, the Court held..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 the absence of any such averment or proof, the Court concluded that the property in the hands of Donor has to be treated as self-acquired property..Thus, the Court ruled that 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..Issue no. 2 – Is it mandatory to lead evidence of attesting witnesses of a gift deed under Section 68 of the Indian Evidence Act 1872.The argument of the counsel for the appellants was that the attesting witnesses of the gift deed are Bhikhabhai Ramabhai and Karsanbhai Dhulabhai, whereas Solanki Bhikhabhai Ramabhai and Vaid Alkaben Vinodchandra are the witnesses at the time of registration of the document..It was argued that the attesting witnesses of the document were not examined which is a mandatory requirement to prove execution of the gift deed in terms of Section 68 of the Evidence Act..The appellants went to trial on the basis of fabrication of gift deed. The appellants had admitted the execution of the gift deed but alleged the same to be forged or fabricated..The High Court had turned down the argument holding that the appellants had not denied specifically the execution of the gift deed, and therefore, it was not necessary for the Donee to examine one of the attesting witnesses..The High Court had 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 was 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 trial court had discussed the evidence on record but in view of the finding that the property is ancestral, no finding was recorded whether the gift deed was forged or not as per the issue framed. The first appellate court in a short judgment had affirmed the finding of the trial court..The Supreme Court noted that 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 the execution of a Will which is required to be 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”..The Appellant had asserted that under Section 68 of the Evidence Act, it was mandatory for a person to examine an attesting witness to prove a gift deed in his favour in the event an allegation of forgery was advanced in the plaint. The Supreme Court disagreed with that submission and held that unless the execution of a gift deed was specifically denied and any forgery was proved, there would be no necessity on the part of donee to lead the evidence of an attesting witness to prove the gift deed..Relying on the decision of the Kerala High Court in Kannan Nambiar vs Narayani Amma & Ors [(1984) SCC Online Ker 174], where the High Court had disregarded a general denial and an averment of fraud, the Supreme Court held that cases related to fraud required to be specifically pleaded in terms of Order VI, Rule 4 of the Code of Civil Procedure, 1908..Explaining the scope of the term “specifically denied” in Section 68, the Court adverted to Kannan Nambiar judgment which had held that “specific denial of execution of gift is an unambiguous and categorical statement that the donor did not execute the document.”.On that basis, the appeal was dismissed and the judgment of the High Court was affirmed..Senior Advocate Mukul Rohatgi appeared for the appellants..The Respondents were represented by Senior Advocate Nakul Dewan and advocates Pradhuman Gohil and Shivangi Sud..[Read Judgment]