1. This is a defendant's second appeal arising out of a suit for (i) possession after cancellation of the gift-deed, dated, 21-3-68 executed by Munshi Lal in favour of Chhuttan Lal appellant and (ii) declaration that the plaintiff and defendants 2 to 7 are the owners of the property entitled to realise the rent of the same. The short but rather neat point arising in the appeal is whether the plaintiffs' suit can succeed on the ground that the appellant Chhuttan Lal did not prove the gift-deed in accordance with Section 68, Evidence Act by examining an attesting witness.

2. The suit was filed on 17-4-68 during the lifetime of Munshi Lal who was arrayed as defendant No. 2 by daughter's children of Munshi Lal claiming to be his legal heirs. The prayer at that stage was for a declaration that the gift-deed in question (described as gift-deed executed (Iqrari) by Munshi Lal in favour of Chhuttan Lal) was not binding on the heirs. They alleged that Munshi Lal was a 95 years old and sick man who was not in proper control of his senses, that the appellant had taken him to Bulandshahr on the excuse of taking him for treatment and that the gift-deed had been secured and got registered fraudulently and through undue influence in collusion with the scribe and the witnesses. The grounds for attacking the gift-deed detailed in para 11 can be summarised as follows:

(i) the appellant had abused the fiduciary relationship and exercised fraud and undue influence, (ii) Munshi Lal was not allowed any opportunity of cool judgment or independent advice about the transaction and the gift-deed was not executed or attested according to law. (iii) Munshi Lal did not sign or thumb-mark any document knowing it to be a gift-deed nor was the deed read over or explained to him or its effect intimated to him and (iv) the gift-deed was not the mental act of Munshi Lal. The other grounds are ancillary to these very points and suggestive of undue influence.

3. It is significant that apart from the general allegation of fraud and the presumptive allegation of the gift-deed not being the conscious act of Munshi Lal owing to old age and infirm health no particulars of fraud were given in the plaint or for that matter even in evidence. In fact the learned counsel for the respondent fairly conceded that the grounds bearing on denial of execution may be summarized by saying that the completion of the deed was not the mental act of Munshi Lal and the only evidence for this was circumstantial being the old age and health of the donor.

4. After the death of Munshi Lal pending the suit the plaint was got amended and in place of the declaration relief, the two reliefs of possession and declaration mentioned in the opening para were substituted. Here again the form of the relief for possession is important. It is not an independent relief but one linked to the relief of cancellation. The Language is that after the cancellation of the gift-deed, dated 21-3-68 possession be delivered (HIBENAMA……MANSUKH KIYA JAKAR MUDDAIYAN KO DAKHAL MALIKANA JAYADAD MAJKOOR PAR DILAYA JAYE). This has to be interpreted as meaning that the possession will only follow cancellation of the gift-deed.

5. The appellant denied all the allegations and asserted that the gift-deed was valid. The trial court found the allegations of fraud and undue influence disproved and held that the gift-deed could not be challenged on these grounds. It, however, decreed the suit on the technical ground that the appellant having not examined any attesting witness to prove the gift-deed the same could not be used as evidence because it had been specifically denied by the plaintiff within the meaning of Section 68 Evidence Act. The lower appellate court has confirmed these findings. This view of the courts below is challenged in this appeal.

6. Section 68 Evidence Act runs as follows:—

“Proof of execution of document required by law to be attested:— If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence:

“Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.”

7. It seems to me that the courts below have misconstrued the effect of Section 68 Evidence Act in the present case. Occasion for applying the rule of exclusion from evidence in Section 68 arises when a party seeking to rely on a document requiring attestation, fails to prove it in the given manner. 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 grounds of attack for avoidance of the deed as claimed in the original relief or cancellation subsisted. It is obvious that such disability of the defendant depending on the future contingency of failure to adduce the proper proof can never be a ground of attack. The plaintiff can succeed in the suit only on the strength of this own case.

8. In the present case in the plaint taken as a whole, he attacked the gift-deed on the grounds that it was obtained by fraud or undue influence also wrongly, alleging that it was not executed or attested according to law. Now on the concurrent finding of the courts below, the plaintiff failed to make out any case, for cancellation of the gift-deed. Once that position is reached, the suit has to fail because the plaint in substance bases even the reliefs of possession and declaration on the cancellation. It is then not necessary for defendant to prove the gift-deed and use it as his evidence to resist the suit. The bare allegation that it is not executed or attested according to law without any evidence in support cannot throw the burden on the defendant to prove due execution when the existence of the document is admitted and no specific defect in execution or attestation is pointed out.

9. The allegation that the execution was not the mental act of the donor in view of his physical and mental condition in the absence of any specific case of fraud or forgery also is not more than a step in furtherance, of the broader plea of undue influence. Therefore, on the pleadings and findings of this, case, there was no occasion for the defendant-appellant to prove the gift-deed in the manner required by Section 68 Evidence Act. The plaintiff himself had admitted its existence subject to his pleas which he failed to substantiate and that was sufficient to defeat his claim. He cannot derive any advantage from the defendant's failure to prove the gift-deed in accordance with Section 68 because in the circumstances of this case such proof was not necessary to resist the suit.

10. It may be that if the plaintiffs had filed a suit for possession as legal representatives of Munshi Lal without admitting the existence of the gift-deed and the defendant had relied on the gift-deed Section 68 would have come into play and the defendant would have been required to adduce proper proof of attestation on peril of the defence being thrown out. But that is not the position here. The primary attack in the suit is on the gift-deed and had to be so for otherwise the plaintiff would have had not even the semblance of a cause of action when the suit was filed in Munshi Lal's lifetime. The subsequent substitution of the relief for possession did not change this character of the suit.

11. The emphasis on the grounds for cancellation in the plaint cannot he ignored as dispensable so as to leave this to be a suit on title alone merely on the ground that suit for possession could have been filed on the basis of title without any attack on the gift-deed. To do so would be highly unfair to the defendant for the manner of frame of the suit bears on the questions of whether there is specific denial of the gift-deed by the plaintiff; applicability of Sec. 68 Evidence Act; and burden of proof in respect of the gift-deed. If this looks like a pedantic and technical view of the plaint case, it should be remembered that a liberal reading of the plaint in this matter could lead to grave injustice.

12. I am also of the opinion that in the circumstances of this case, it is not possible to say that there was specific denial of the execution on behalf of the plaintiff. Whether there was such denial has not to be determined merely on the pleading of the party. The proceedings including evidence in the case and the conduct of parties till the stage of proof by the defendant is reached are also to be considered for a proper answer to the question. In Dashrath Prasad v. Lalloo Singh, (AIR 1951 Nag 343) Bose C.J observed that the word specific must mean something over and above general denial. It was also observed that each case will depend on its own facts. The decision refers to Bhim Singh v. Fakir Chand, (AIR 1948 Nag 155) in which a plea that “the mortgagor had no knowledge of the bond” was held not be specific denial of execution of the bond. With respect I am of the opinion that the present is more or less a similar, case.

13. The existence admitted subject to objection in the light of absence of any evidence as to what transpired at the completion of the deed is tantamount to the usual admission in the form “formal proof dispensed with” adopted in trial courts while recording admission on documents. It means that the document as it appears on the face was to be read in evidence but this was to be subject to evidence of the parties. Since no evidence was led against due execution or due attestation, it cannot be said that there was any specific denial of execution. As already indicated the bare allegation that Munshi Lal was old and infirm and could not understand the nature of the document cannot in the circumstances of this case be regarded as specific denial of the execution. Therefore, differing from the lower courts I would hold that the case was covered by the proviso and as there was no specific denial it was not necessary to prove the gift-deed in accordance with Section 68 Evidence Act before it could be used as defendant's evidence. The appeal succeeds.

14. In the result, the appeal is allowed. The judgment and decree of the courts below are set aside and the plaintiff's suit is dismissed.

15. The parties are, however, left to bear their own costs throughout.

16. Appeal allowed.