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TMI Blog2008 (12) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... s mentioned as item Nos. 1 to 12. Subsequently, plaintiff also incorporated Item Nos. 13 and 14 in the plaint for division. 4. In the written statement filed by the present appellant, he stated that items 1 to 3 in the plaint schedule property were assigned in his favour by virtue of a document Ext. B1 and items 13 and 14 were assigned in his favour by virtue of Ext. B4. It was his further case that his father Chathu had executed a gift deed on 26.04.1974, Ext. B2, in his favour with respect to items 4 and 5. Also, that his father Chathu had bequeathed properties being item Nos. 6 to 8 and 10 to 12 by executing a Will in his favour on the same day. It was also pleaded that in the Will item No. 9 was set apart to the share of daughters and therefore the properties described as items 1 to 8 and 10 to 13 are not available for division. 5. It was held by the Trial Court that Ext. B2 which is a gift deed and Ext. B3 which is a deed of Will had been properly proved by defendant No. 5- appellant herein and therefore, in terms of Ext. B3 Will, the only item available for division is item No. 9 of the plaint schedule property. 6. As against the said judgment and order p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting witness inasmuch as the plaintiff admitted execution of the gift deed by not specifically denying execution of the said gift deed in his pleadings. 11. He also submitted that even in respect of the Will, sufficient, strong and cogent reasons have been furnished by the appellant for his inability to examine the attesting witnesses which should have been accepted as a valid reason and by accepting the same both the appellate courts should have held that both the Deed of Will as also the Deed of Gift are genuine and validly executed documents and should have dismissed the suit of the plaintiff in toto. 12. The aforesaid submissions of the counsel appearing for the appellant were however refuted by the counsel appearing for the respondent contending inter alia that Ext. B2 i.e. Gift Deed as also Ext. B3 i.e. the Deed of Will had not been proved as per Section 68 of the Act to be used as evidence in any court of law, and therefore, both the Appellate Courts were justified in holding that the same cannot be accepted as evidence in the present case. It was further submitted by him that the execution of the Gift Deed was specifically denied by the respondent/plaintiff. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. It is only as against the judgment and findings that the items of property covered by Ext. B2 and B3 are available for division that the second appeal was preferred by the fifth defendant in the High Court of Kerala. Therefore, the properties covered by Ext. B1 and B4 namely items 1 to 3, 13 and 14 are no longer in dispute and the conclusions arrived at by the first appellate court that the said items are not available for division are final and binding on the parties. 19. What is in dispute and is open to further litigation are only the properties covered by Ext. B2 and B3 which were held by both the appellate courts to be available for division. Since we are concerned with the legality of execution of Deed of Will and Deed of Gift, Section 68 of the Act would have some relevance, which reads as follows:- 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose of proving its execution provided such attesting witness is alive, and subject to the process of the court and capable of giving evidence. 23. In the present case the scribe and one of the attesting witnesses to the Will namely Vasu died before the date of examination of the witnesses. The second attesting witness namely Gopalan was also not in good physical condition inasmuch as neither was he able to speak nor was he able to move, the fact which is proved by the deposition of the doctor examined as DW 2. Consequently, as the execution of the Will cannot be proved by leading primary evidence, the propounder i.e. the appellant herein was required to lead secondary evidence in order to discharge his onus of proving the Will as held by this Court to be permissible in Daulat Ram v. Sodha [(2005) 1 SCC 40]. 24. The only evidence led by appellant - propounder to prove the execution of the Will was by examining DW-4, the son of attesting witness Moolampalli Gopalan and by examining Kolayath Mammed who was an identifying witness to Ext. B3 Will. DW-4 though deposed that the signatures of attesting witness on Ext. B3 are of his father but, however, he did not state that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Deed of Gift were stated for the first time in the written statement by the fifth defendant, who pleaded that the ordinary process of inheritance and succession would not apply in the present case in respect of properties in item 4 and 5 as a Deed of Gift was executed in his favour. 30. It is however established in the present case that the issue of validity of the execution of both the Deed of Gift and Deed of Will was taken up by the respondent/plaintiff and specifically denied in the affidavits filed in respect of the injunction applications. The parties have also gone to trial knowing fully well that execution of both these documents is under challenge. Parties knowing fully the aforesaid factual position led their evidence also to establish the legality and validity of both the documents. In that view of the matter, it cannot be said that the said document should be deemed to be admitted by the plaintiff as no replication was filed by the plaintiff. 31. 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 VI of the Code consist only of a plaint and a written statement. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was he examined nor any reason was assigned by the appellant for not examining him. 34. Since both the attesting witnesses have not been examined, in terms of Section 69 of the Act it was incumbent upon the appellant to prove that the attestation of one attesting witness at least is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. DW 3, who was an identifying witness also in Ext B2, specifically stated that he had not signed as an identifying witness in respect of Ext. B2 and also that he did not know about the signature in Ext. B2. 35. Besides, considering the nature of the document which was a Deed of Gift and even assuming that no pleading is filed specifically denying the execution of the document by the executant and, therefore, there was no mandatory requirement and obligation to get an attesting witness examined but still the fact remains that the plaintiff never admitted the execution of the gift deed and, therefore, the same was required to be proved like any other document. 36. In the present case, the person who was called to prove the document himself said that he had not signed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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