Hindu Law – Self-acquired property bequeathed by the father in favour of the son – Nature of such property in the hands of the son – Appellants-plaintiffs are sons of the Donor (since deceased) – During his life time, the Donor purportedly executed gift deed in favour of the defendant-donee – Trial Court recorded finding that the property was ancestral – Upheld by the First Appellate Court – High Court held that the property was not ancestral in the hands of the Donor and hence, he was competent to execute the gift deed – On appeal, held: Admittedly, the grandfather of the appellants purchased the property, and such self-acquired property came to be bequeathed by him to the Donor through Will – Thus, the grandfather of the appellant was competent to execute the Will in favour of any person and since the beneficiary of the Will was his son (the Donor) thus, in the absence of any intention in the Will, beneficiary would acquire the property as self-acquired property – Appellants stated in the cross-examination that there was family partition in 1964 between the Donor and his two brothers – 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 – Burden of proof that the property was ancestral was on the plaintiffs (appellants) alone – It was for them to prove that the Will of their grandfather 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 property in the hands of Donor has to be treated as self-acquired – Once the property in the hands of Donor is held to be self-acquired, he is competent to deal with it in manner he considers proper including by executing gift deed in favour of a stranger to the family – Further, appellants admitted the execution of the gift deed but alleged it to be forged/fabricated – In the absence of any evidence of forgery/fabrication and specific denial of the execution of the gift deed, 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 – Appellants were residing in the United States but failed to take care of their parents – Therefore, the father of the appellants executed gift deed in favour of a person who stood by him – No error in the findings recorded by the High Court– Transfer of Property Act, 1882– s.123 – Indian Succession Act, 1925 – s.63 – Evidence Act, 1872 – s.68 – Code of Civil Procedure, 1908 – s.100 and Or. VI, r.4.
Evidence Act, 1872 – s.68 – Appellants-plaintiffs are sons of the Donor (since deceased) – During his life time, the Donor purportedly executed gift deed in favour of the defendant-donee – Trial Court recorded finding that the property was ancestral – Upheld by the First Appellate Court – High Court held that the property was not ancestral in the hands of the Donor and hence, he was competent to execute the gift deed – Held: s.68 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 1908 Act, unless the execution is specifically denied – In the present case, the entire reading of the plaint does not show that there was any specific denial of execution of the gift deed – Thus, in view of the absence of specific denial of the execution of the gift deed, the Donee was under no obligation to examine one of the attesting witnesses of the gift deed– Indian Registration Act, 1908.
Dismissing the appeal, the Court
HELD: 1.1 PW-1 has stated, vide Exhibit 34, that the property in question was purchased by his grandfather 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 family partition in the year 1964 between the Donor and his two brothers. 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. 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. The grandfather of the appellants 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 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 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. 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 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. [Paras 10, 11, 21 and 24][160-E-G; 166-F-H; 167-A, E-F]
1.2 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. [Para 28][170-C]
1.3 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 Court. The Trial Court has not returned 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. The entire reading of the plaint does not show that there was any specific denial of execution of the gift deed. [Paras 30, 31] [171-E-G]
1.4 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. The appellants went to trial on the basis of fabrication of gift deed. The appellants have admitted the gift deed but 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. [Paras 36, 38][173-D-G]
1.5 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. Therefore, the father of the appellants executed gift deed in favour of a person who stood by him. There is no error in the findings recorded by the High Court. Thus, no error found in the judgment of the High Court which may warrant interference in the present appeal. [Paras 41, 42][176-B-E] Shyam Narayan Prasad v. Krishna Prasad & Ors. (2018)
7 SCC 646 : [2018] 5 SCR 36 – distinguished.
Rosammal Issetheenammal Fernandez (Dead) by LRs & Ors. v. Joosa Mariyan Fernandez & Ors. (2000) 7 SCC 189 : [2000] 2 Suppl. SCR 336; K. Laxmanan v. Thekkayil Padmini & Ors. (2009) 1 SCC 354 : [2008]
16 SCR 1117 – held inapplicable.
C.N. Arunachala Mudaliar v. C.A. Muruganatha
Mudaliar & Anr. AIR 1953 SC 495 : [1954] SCR 243 – relied on.
Dashrath Prasad Bajooram v. Lallosingh Sanmansingh & Anr. AIR 1951 Nag 343; Kannan Nambiar v.
Narayani Amma & Ors. 1984 KLT 855 – approved.
Thulasidhara & Anr. v. Narayanappa & Ors. (2019) 6 SCC 409; Jugmohan Das v. Sir Mangal Das (1886)
I.L.R. 10 Bom 528; Parsotam v. Janki Bai, ILR 29 All 354; Amarnath v. Guran, AIR 1918 Lah 394; Pulavarthi Venkata Subba Rao & Ors. v. Valluri Jagannadha Rao (deceased) by his Heirs & LRs & Ors. AIR 1967 SC
591 : [1964] SCR 310; Badat and Co. Bombay v. East India Trading Co. AIR 1964 SC 538 : [1964] SCR 19 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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