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Rosammal Issetheenammal Fernandez (Dead) By Lrs. And Others v. Joosa Mariyan Fernandez And Others
Factual and Procedural Background
The appellants, Roman Catholic Christians of Latin rite, instituted a suit seeking partition of the plaint schedule property and claimed a 2/5th share on the basis that, by custom, sons and daughters inherit equally. They simultaneously challenged the validity of two registered documents—Gift Deed No. 1763/73 (Exhibit B-1) and Settlement Deed No. 1764/73 (Exhibit B-2)—alleging that their father, Jaius Mariyan Fernandez, was paralysed and incapable of executing any document on 12-11-1973.
The trial court initially dismissed the suit, holding that the pleaded custom was unproved and that the father could not have executed the impugned documents. On appeal, the appellate court allowed additional evidence and remanded the matter. After remand, the trial court decreed the suit, recognising the custom and disbelieving the execution of Exhibits B-1 and B-2. The respondents’ appeal was then allowed by the appellate court, which set aside the decree; the appellants’ second appeal was dismissed by the High Court. The High Court ruled that succession was governed by the Indian Succession Act (rendering the custom issue irrelevant) and, invoking the proviso to Section 68 of the Evidence Act, treated Exhibit B-1 as proved because it found no “specific denial” of its execution. The present judgment reviews that High Court decision.
Legal Issues Presented
- Whether the High Court erred in admitting the registered Gift Deed (Exhibit B-1) into evidence under the proviso to Section 68 of the Indian Evidence Act despite the plaintiffs’ alleged denial of its execution.
Arguments of the Parties
Appellants’ Arguments
- The pleadings expressly allege that Exhibits B-1 and B-2 were forged while Jaius Mariyan Fernandez was bedridden and paralysed; hence there is a “specific denial” of execution.
- The High Court’s conclusion that denial was absent is perfunctory and based solely on isolated testimony (PW 5), ignoring clear pleadings recorded in the 17-8-1977 trial-court judgment.
- Because there is a specific denial, the proviso to Section 68 does not apply and at least one attesting witness must have been called to prove execution, which was not done.
The opinion does not contain a detailed account of the respondents' legal arguments.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court examined Section 68 of the Indian Evidence Act and its proviso, which waives the requirement of calling an attesting witness for a registered document “unless its execution ... is specifically denied.” The Court found:
- The High Court’s statement—“it is difficult to infer a specific denial”—is vague and unsupported, especially given the explicit pleading that the impugned deeds were “brought into existence fraudulently” and that the father’s signature was forged while he was bedridden.
- Such pleadings constitute an unequivocal, “specific denial” of execution, bringing the main portion of Section 68 into operation and rendering the proviso inapplicable.
- Because none of the attesting witnesses to Exhibit B-1 were examined, the statutory requirement for proof of execution was not met; therefore, the gift deed cannot be admitted in evidence.
- With Exhibit B-1 excluded, no rights can accrue to the respondents over Schedule A property, and the plaintiffs’ challenge to the deed succeeds.
Holding and Implications
The appeal is partly allowed; the High Court’s finding on Exhibit B-1 is set aside. The appellants are declared entitled to a 2/5th share in Schedule A property, and costs are ordered to lie on the parties.
Implications: The decision reinforces that a clear denial of execution in pleadings requires strict compliance with Section 68 of the Evidence Act, thereby preventing admission of attested documents without examining at least one attesting witness. No new precedent was set beyond the immediate dispute.
Order
1. Heard learned counsel for the parties.
2. The short question raised is, whether the High Court was right to entertain Exhibit B-1 in evidence, in view of proviso to Section 68 of the Indian Evidence Act.
3. The short facts are, the appellants filed the suit for partition of the plaint schedule property claiming 2/5th share as parties are Roman Catholic Christians of Latin rites and as per custom in the community, both daughters and sons get equal share. The appellant also challenged the execution of the gift deed Exhibit B-1 and the settlement deed, Exhibit B-2. The trial court dismissed the suit with the finding that the plaintiffs have not proved the existence of any custom by which the male and female heirs share equally the property of a deceased/dying intestate. The claim of the property is from Joosa Mariyan Fernandez (deceased). The Court held that Jaius Fernandez was not in a position to execute the documents on the alleged date i.e 12-11-1973. Aggrieved by the same, the appellants filed an appeal. The appellate court, after permitting to bring on record two additional documents, remanded the case back for fresh determination. After remand the trial court decreed the suit and held that the custom alleged has been proved and disbelieved the execution of the said two documents. The respondents' appeal by the appellate court was allowed and the trial court judgment was set aside. The appellant's second appeal was dismissed. The High Court held that the issue of custom has become irrelevant in view of the decision of this Court that succession among Christians in Travancore is governed by the Indian Succession Act under which the daughter also gets a right to succeed. However, considering the execution of the said two documents with reference to the gift deed with which we are concerned, in the absence of any of the attesting witnesses being examined, the High Court held as there was no specific denial of this document by the plaintiff hence, proviso to Section 68 of the Evidence Act will apply.
4. The High Court records:
“In fact, in this case there is no specific denial of the execution of the documents and it is really a case for setting aside the documents on the ground of vitiating circumstances and in such a case, it is difficult to infer a specific denial of the execution of the document within the meaning of that proviso.”
The finding of the High Court is challenged by the learned counsel for the appellant. He submits that actually there is specific denial of the execution of this document but the High Court has perfunctorily considered this. The existence of denial is very clear in the pleading itself. Both the High Court and the appellate court drew this inference based on the testimony of PW 5. The relevant portion of the High Court order is quoted hereunder:
“Even PW 5 had to admit that he and his brother DW 3 signed in the document on the particular day after the document was prepared at their office and that Joosa Mariyan Fernandez was present there then.”
5. Similarly, relevant portion of the appellate court order reads as under:
“But in cross-examination he admitted that Exhibit B-2 is a settlement deed executed by Joosa Mariyan Fernandez and that the document was also prepared as per the directions of the executant. DW 3 is the document-writer who prepared both these documents.”
6. It is this part of the testimony which seems to have favour (sic) the courts to construe that there was no specific denial.
7. We find the High Court committed error by drawing such inference. In considering this question, whether there is any denial or not, it should not be casually considered as such finding has very important bearing on the admissibility of a document which has important bearing on the rights of both the parties. In fact the very finding of the High Court, “it is difficult to infer a specific denial of the execution of the document”, shows uncertainty and vagueness in drawing such inference. In considering applicability of proviso to Section 68 the finding should be clearly specific and not vaguely or negatively drawn. It must also take into consideration the pleadings of the parties which has not been done in this case. Pleading is the first stage where a party takes up its stand in respect of facts which they plead. In the present case, we find that the relevant part of the pleading is recorded in the judgment of the trial court dated 17-8-1977 which is the judgment prior to the remand.
8. The judgment records the pleadings to the following effect:
“Gift Deed No. 1763/73 and Settlement Deed No. 1764/73 were brought into existence fraudulently without the knowledge and consent of Jaius Mariyan Fernandez. On the date of the alleged execution of the abovesaid two documents Jaius Mariyan Fernandez was confined to bed due to paralysis. At that time he was not in a position to execute any document. In executing the documents Defendants 1 and 2 forged the signature of their father after influencing the Sub-Registrar.”
9. The aforesaid pleading leaves no room of doubt about denial of execution of the said documents. The pleading records that Defendants 1 and 2 forged the signature of their father after influencing the Sub-Registrar. The denial cannot be more strong than what is recorded here. Once when there is denial made by the plaintiff, it cannot be doubted that the proviso will not be attracted. The main part of Section 68 of the Indian Evidence Act puts an obligation on the party tendering any document that unless at least one attesting witness has been called for proving such execution the same shall not be used in evidence.
10. Section 68 of the Indian Evidence Act:
“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 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.”
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 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 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 that the plaintiff has successfully challenged its execution. The gift deed accordingly fails and the findings of the High Court contrary are set aside. In view of this no rights under this document accrue to the respondent concerned over Schedule A property which is covered by this gift deed.
12. The High Court order to this extent stands set aside. The claim of the appellant to the extent of 2/5th share over Schedule A property succeeds. Accordingly, the present appeal is partly allowed. Costs on the parties.
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