Holding

The property is self‑acquired in the donor’s hands, he was competent to execute the gift deed, and the absence of a specific denial of its execution means Section 68 does not require examination of an attesting witness; the High Court’s findings are affirmed.

Summary

The appellants, sons of the deceased donor, claimed that a property gifted by their father to the respondent was ancestral and that the donor lacked authority to execute the gift deed, alleging the deed was forged. The trial court held the property ancestral, a view affirmed by the first appellate court, but the Gujarat High Court reversed this, finding the property to be self‑acquired in the donor’s hands, making him competent to gift it, and holding that no specific denial of the deed’s execution required examination of an attesting witness under Section 68 of the Evidence Act. The Supreme Court examined whether the property was ancestral or self‑acquired, whether the donor could validly gift it, and whether the plaintiff’s burden to prove forgery or a specific denial was satisfied. It concluded that the grandfather’s purchase made the land self‑acquired, the donor’s will transferred it as self‑acquired property, and the plaintiffs failed to specifically deny the deed’s execution, so Section 68 did not apply. Consequently, the High Court’s findings were upheld and the appeal dismissed.

Issues considered

Whether the property in question is ancestral or self‑acquired in the hands of the donor.
Whether the donor was competent to execute a gift deed in favour of the respondent.
Whether the plaintiffs proved that the gift deed was forged or fabricated.
Whether Section 68 of the Evidence Act obliges the respondent to produce an attesting witness when the execution of the deed is not specifically denied.
Whether the High Court erred in setting aside the trial court’s findings.

Legislation cited

Subjects

self‑acquired propertyancestral propertygift deedforgerySection 68 Evidence ActHindu lawtestamentary dispositionburden of proofregistrationpartition

Judgment

152 [2019]REPORTS
SUPREME COURT 13 S.C.R. 152 [2019] 13 S.C.R.

A GOVINDBHAI CHHOTABHAI PATEL & ORS.
v.
PATEL RAMANBHAI MATHURBHAI
(Civil Appeal No. 7528 of 2019)
B SEPTEMBER 23, 2019
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Hindu Law – Self-acquired property bequeathed by the father
in favour of the son – Nature of such property in the hands of the
C 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 –
D 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
E 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
F 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
G
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/
H
152
GOVINDBHAI CHHOTABHAI PATEL & ORS. v. PATEL 153
RAMANBHAI MATHURBHAI

fabrication and specific denial of the execution of the gift deed, the A
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
B
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 C
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 D
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 E
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 F

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 G
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 H
154 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 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
B
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
C 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
D
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
E 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
F
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
G 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]
H
GOVINDBHAI CHHOTABHAI PATEL & ORS. v. PATEL 155
RAMANBHAI MATHURBHAI

1.3 Though the learned Trial Court has discussed the A
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 B
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]
C
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 D
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 E
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 F
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
G
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.
H
156 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 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.
B 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.
C 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
D 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.

E Case Law Reference
(2019) 6 SCC 409 referred to Para 7
[1954] SCR 243 relied on Para 7
[2018] 5 SCR 36 distinguished Para 7
F (1886) I.L.R. 10 Bom 528 referred to Para 14
ILR 29 All 354 referred to Para 15
AIR 1918 Lah 394 referred to Para 15
[1964] SCR 310 referred to Para 18
G [2000] 2 Suppl. SCR 336 held inapplicable Para 32
[2008] 16 SCR 1117 held inapplicable Para 32
[1964] SCR 19 referred to Para 37
AIR 1951 Nag 343 approved Para 39
H 1984 KLT 855 approved Para 40
GOVINDBHAI CHHOTABHAI PATEL & ORS. v. PATEL 157
RAMANBHAI MATHURBHAI

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7528 A
of 2019.
From the Judgment and Order dated 05.09.2018 of the High Court
of Gujarat at Ahmedabad in Second Appeal No. 211 of 2018
Mukul Rohatgi, Sr. Adv., A. R. Gupta, Aditya Gupta, Ms. Devanshi
Popat and Prateek K Chadha, Advs. for the Appellants. B

Nakul Dewan, Sr. Adv., Pradhuman Gohil, Mrs. Taruna Singh
Gohil, Ms. Ranu Purohit and Shiva P., Advs. for the Respondent.
The Judgment of the Court was delivered by
HEMANT GUPTA, J. C
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.
D
3. The appellants are sons of Chhotabhai Ashabhai Patel 1 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: E
(i) Whether the plaintiffs prove that the disputed gift deed is
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? F
(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?
G
(v) Whether the defendant proves that the plaintiffs have no right
to file the present suit?
(vi) What order and decree?
1
for short, ‘Donor’
2
for short, ‘Donee’ H
158 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 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.
B 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
C 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 findings on such questions which arose for
D 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
E 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.
F 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

G 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

H
3
for short, ‘Evidence Act’
GOVINDBHAI CHHOTABHAI PATEL & ORS. v. PATEL 159
RAMANBHAI MATHURBHAI [HEMANT GUPTA, J.]

self-acquired property of the father, it falls into the hands of his A
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.
B
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. C
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 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 D
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
E
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 F
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 G
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
4
(2019) 6 SCC 409 H
160 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 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 Shyam Narayan Prasad v.
Krishna Prasad & Ors.6 that self-acquired property of a grandfather
devolves upon his son as ancestral property.
B 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
C 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.
D 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
E 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 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
F 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
G 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.
5
AIR 1953 SC 495
H 6
(2018) 7 SCC 646
GOVINDBHAI CHHOTABHAI PATEL & ORS. v. PATEL 161
RAMANBHAI MATHURBHAI [HEMANT GUPTA, J.]

12. This Court in three Judge Bench in C.N. Arunachala Mudaliar A
considered the question as to whether the properties acquired by
defendant No. 1 under Will are to be regarded as ancestral or self-
acquired 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
B
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 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 C
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
D
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 E
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 self-acquired property.
14. The Bombay High Court in Jugmohan Das v. Sir Mangal F
Das held that if the son takes by devise, the property continues to be
7

self-acquired in his hands. A man can give away his self-acquired 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: G
“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
7
(1886) I.L.R. 10 Bom 528 H
162 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 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
B 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
C 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
D 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 self-acquired 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
E 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 Court 8 and the Lahore High Court9. This Court in C.N.
Arunachala Mudaliar approved the view of the Bombay High Court
F 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
G 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
8
Parsotam v. Janki Bai, ILR 29 All 354
H
9
Amarnath v. Guran, AIR 1918 Lah 394
GOVINDBHAI CHHOTABHAI PATEL & ORS. v. PATEL 163
RAMANBHAI MATHURBHAI [HEMANT GUPTA, J.]

the concurrence of his sons [Vide Muddun v. Ram, 6 WR 71] but A
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 B
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 C
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 D
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 E
partition. The reason for this distinction is that the theory of equal
ownership between the father and the son in the ancestral property 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 F
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 G
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
H
164 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 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:
B “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
C 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
D 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
E made applicable to all cases of 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
F 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,
G 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
H dismissed.
GOVINDBHAI CHHOTABHAI PATEL & ORS. v. PATEL 165
RAMANBHAI MATHURBHAI [HEMANT GUPTA, J.]

18. In other case reported as Pulavarthi Venkata Subba Rao & A
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
B
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:
“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, C
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 D
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 E
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 F
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 G
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

10
AIR 1967 SC 591 H
166 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 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
B being sons and grandson of one of the sons of Gopal Prasad, the last
male holder was found to have equal share in the 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:
C
“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
D 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
E 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.
F 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
G 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 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
H
GOVINDBHAI CHHOTABHAI PATEL & ORS. v. PATEL 167
RAMANBHAI MATHURBHAI [HEMANT GUPTA, J.]

held to be self-acquired property, he was competent to deal with his A
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 B
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 C
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 D
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.” E
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 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 F
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
G
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
H
168 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 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,
B
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
C 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
Karsanbhai Dhulabhai, whereas Solanki Bhikhabhai Ramabhai and Vaid
D 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
E 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
F 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
G 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
H plaintiff Nos. 1 to 4 and plaintiff Nos. 1 to 4 were living in USA
GOVINDBHAI CHHOTABHAI PATEL & ORS. v. PATEL 169
RAMANBHAI MATHURBHAI [HEMANT GUPTA, J.]

(America) since many years and the deceased Chhotabhai Patel A
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
B
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. C

(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 D
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 E
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 F
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 G
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 Ashabhai is forged, and in H
170 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 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
B 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
C 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
D 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:
E “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
F 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 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
G 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
H
GOVINDBHAI CHHOTABHAI PATEL & ORS. v. PATEL 171
RAMANBHAI MATHURBHAI [HEMANT GUPTA, J.]

original and proved the same in accordance with law by examining A
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 B
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 C
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 D
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 E
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 retuned any finding that the gift deed is forged.
F
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
G
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
H
172 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 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
B 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
C 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
D 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
E 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
F 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
G 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
11
(2000) 7 SCC 189
H
12
(2009) 1 SCC 354
GOVINDBHAI CHHOTABHAI PATEL & ORS. v. PATEL 173
RAMANBHAI MATHURBHAI [HEMANT GUPTA, J.]

provision of Rule 1, Order 6 of the Code consist only of a plaint A
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 B
the written statement. The specific objection in the form of denial
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.”
C
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. D

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.
E
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. F

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
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. G

39. Dashrath Prasad Bajooram v. Lallosingh Sanmansingh
& Anr.14 was dealing with the issue as to whether defendant No. 1
13
AIR 1964 SC 538
14
AIR 1951 Nag 343 H
174 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 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
B 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
C
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
D 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
E
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:
F “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.”
G 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
H which state that
GOVINDBHAI CHHOTABHAI PATEL & ORS. v. PATEL 175
RAMANBHAI MATHURBHAI [HEMANT GUPTA, J.]

“It shall not be sufficient for a deft. in his written statement to A
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 B
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 C
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 D
specific denial in juxtaposition to general denial. See Dashrath
Prasad v. Lallosing (AIR. 1951 Nag. 343)
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 E
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 F
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 G
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
15
1984 SCC OnLine Ker 174 : 1984 KLT 855 H
176 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 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.”
B 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
C 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 has executed
gift deed in favour of a person who stood by him. We find that there is
D 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.

E
Divya Pandey Appeal dismissed.

F

G

H