Case Note & Summary
The appellant-defendant (Dattatray Narayan Aher) challenged the concurrent judgments of the trial court and first appellate court decreeing the suit filed by the respondent-plaintiff (Bhaskar Narayan Aher) for cancellation of a gift deed dated 9.5.1978. The plaintiff alleged that he never executed any gift deed in favour of his brother (the defendant) and that his signature was obtained on loan documents. The defendant claimed the gift deed was validly executed out of gratitude for financial help. The trial court, after appreciation of evidence, held that the gift deed was not executed by the plaintiff and decreed the suit, cancelling the deed, declaring the plaintiff as owner, and granting perpetual injunction. The first appellate court dismissed the appeal. In second appeal, the appellant argued that since the plaintiff admitted his signature on the gift deed, the proviso to Section 68 of the Indian Evidence Act, 1872 dispensed with the need to examine an attesting witness. The High Court rejected this argument, holding that admission of signature does not amount to admission of execution; the defendant must prove due execution by examining an attesting witness. The court also noted that the plaintiff's denial of execution was specific and not vague. The concurrent findings of fact were not perverse, and no substantial question of law arose. The second appeal was dismissed with no order as to costs.
Headnote
A) Evidence Act - Execution of Document - Attesting Witness - Section 68 Indian Evidence Act, 1872 - Proviso - Where the executant admits his signature but denies execution of the gift deed, the proviso to Section 68 does not apply and the attesting witness must be examined - The court held that mere admission of signature does not amount to admission of execution; the defendant must prove due execution by examining at least one attesting witness (Paras 3-5).
B) Civil Procedure - Second Appeal - Concurrent Findings - Section 100 Code of Civil Procedure, 1908 - Interference - The High Court in second appeal cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence - The court found no perversity in the findings that the gift deed was not executed by the plaintiff (Para 5).
C) Evidence Act - Burden of Proof - Gift Deed - Section 68 Indian Evidence Act, 1872 - The burden to prove execution of a gift deed lies on the donee - Where the donee fails to examine an attesting witness despite the executant's denial of execution, the gift deed cannot be held to be proved (Paras 3-5).
Issue of Consideration
Whether the concurrent findings of the courts below that the gift deed was not executed by the plaintiff are perverse or vitiated by any error of law, and whether the proviso to Section 68 of the Indian Evidence Act, 1872 dispensed with the need to examine an attesting witness when the executant admitted his signature but denied execution.
Final Decision
The High Court dismissed the second appeal with no order as to costs, upholding the concurrent judgments of the courts below.
Law Points
- Execution of gift deed
- burden of proof
- attesting witness
- proviso to Section 68 Indian Evidence Act
- 1872
- specific denial
- concurrent findings of fact
- second appeal under Section 100 CPC
Case Details
2010 LawText (BOM) (08) 93
Second Appeal No. 166 of 1998
Mr.G.S.Godbole with Ms.Jai Kanade for appellant, Mr.M.M.Sathaye for respondent
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Nature of Litigation
Civil suit for cancellation of gift deed, declaration of ownership, and perpetual injunction.
Remedy Sought
The plaintiff sought cancellation of the gift deed dated 9.5.1978, declaration that he is the owner of the suit property, and perpetual injunction against the defendant from interfering with his possession.
Filing Reason
The plaintiff alleged that he never executed any gift deed in favour of the defendant; his signature was obtained on documents posing as loan documents, and he came to know about the gift deed only upon receiving a notice from the Talathi on 14.9.1988 regarding mutation of the defendant's name.
Previous Decisions
The trial court (Civil Judge, S.D., Nashik) decreed the suit on 30.12.1991 in Special Civil Suit No.458/88. The first appellate court (Second Additional District Judge, Nashik) dismissed the appeal (Civil Appeal No.37/92) on 19.1.1998.
Issues
Whether the concurrent findings of the courts below that the gift deed was not executed by the plaintiff are perverse or vitiated by any error of law.
Whether the proviso to Section 68 of the Indian Evidence Act, 1872 dispensed with the need to examine an attesting witness when the executant admitted his signature but denied execution.
Submissions/Arguments
Appellant argued that since the plaintiff admitted his signature on the gift deed, the proviso to Section 68 of the Indian Evidence Act, 1872 applied and it was not necessary to examine an attesting witness. Reliance placed on M.L.Abdul Jabbar Sahib v. M.V.Venkata Sastri and N. Kamalam v. Ayyasamy.
Appellant further argued that the plaintiff's denial of execution was vague and not specific, and therefore no value could be attached to it. Reliance placed on Nainsukhdas v. Gowardhandas, K. Narasimhappa v. Lakkanna, Kadiya Umma v. Mayankutty, and Engineers Corpn. Pvt. Ltd. v. W.B.Financial Corpn.
Respondent supported the concurrent findings and argued that the gift deed was not proved as required by law.
Ratio Decidendi
Mere admission of signature on a document does not amount to admission of execution of the document. When the executant denies execution, the burden lies on the party relying on the document to prove its due execution by examining at least one attesting witness as required under Section 68 of the Indian Evidence Act, 1872. The proviso to Section 68 applies only when execution is specifically admitted. Concurrent findings of fact based on evidence cannot be interfered with in second appeal under Section 100 CPC unless perverse.
Judgment Excerpts
The appellant challenges the concurrent judgments and orders passed by the learned Civil Judge, S.D., Nashik dated 30.12.1991 in Special Civil Suit No.458/88 thereby decreeing the suit filed by the respondent-plaintiff and by the learned Second Additional District Judge, Nashik in Civil Appeal No.37/92 dated 19.1.1998 thereby dismissing the appeal filed by the present appellant.
Learned counsel submits that since the plaintiff himself had admitted the signature on the gift deed, in view of proviso to section 68 of the Indian Evidence Act, it was not necessary to examine the attesting witness.
The learned trial Court after appreciation of the evidence held that the gift deed in question was not executed by the plaintiff and as such decreed the suit, thereby cancelling the said deed, declaring the plaintiff to be the owner and granting the perpetual injunction as prayed for.
Procedural History
The respondent-plaintiff filed Special Civil Suit No.458/88 before the Civil Judge, S.D., Nashik, which was decreed on 30.12.1991. The appellant-defendant appealed to the District Court, Nashik, in Civil Appeal No.37/92, which was dismissed on 19.1.1998. The appellant then filed the present Second Appeal No.166/1998 before the Bombay High Court, which was dismissed on 31.8.2010.
Acts & Sections
- Indian Evidence Act, 1872: Section 68
- Code of Civil Procedure, 1908: Section 100
