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TaxTMI 
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2019 (9) TMI 1681
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.... (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? (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? (v) Whether the Defendant proves that the Plaintiffs have no right to file the present suit? (vi) What order and decree? 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. 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, 1872....
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....as pleaded and admitted by the Plaintiffs themselves. 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 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 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 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 Thulas....
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....y. 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 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. 12. This Court in three Judge Bench in C.N. Arunachala Mudaliar 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 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 immov....
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.... until revocation, a continuous act of gift up to the moment of death, and does then operate to give the property 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 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 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 [Parsotam v. Janki Bai, ILR 29 All 354] and the Lahore High Court [Amarnath v. Guran AIR 1918 Lah 394]. This Court in C.N. Arunachala Mudaliar approved the view of the Bombay High Court and held as under: 9. ... It was held, therefore,....
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....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 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 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: 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 to have found favour with the learned Judges of the Patna High Court who decided the Full Bench case [Vide Bhagwat v....
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.... the will. They took the villages not as ancestral properties but as self-acquired properties, 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 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 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 and the three-fifth share of Pedamamidipalli into two halves and held that a....
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....neficiary 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 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 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. 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 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 not be used as ev....
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....ne 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 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 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 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 o....
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....l 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 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 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 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 of comparin....
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....ly, when the sons were taking good care of their father. This hardly could be termed as evidence with regard to fraud or forgery. The 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 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. 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 challenge was on the ground of forgery or ....
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....fidavit 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 provision of Rule 1, Order 6 of the Code consist only of a plaint 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-fling 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 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. 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....
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....gh' 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 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: 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. 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 Order 8 Rule 3 of the Code of Civil Procedure which state th....