KAMALAKSITY v. MADHAVI AMMA — 1980 DIGILAW 58 (KER)

Judgment :- 1. The defendants in a suit for redemption of Ext. P1 mortgage executed by one Govinda Pillai on 25-12-1102 in favour of one Krishna Pillai are the appellants. The 1st defendant is a daughter of Govinda Pillai. After the death of Govinda Pillai, the 1st defendant and her children defendants 2 and 3, obtained Ext. D2 release of the mortgage on 17-7-1121, and on the same day they executed Ext. D3 mortgage in favour of Kamalakshi Pillai in respect of one of the items included in Ext. D2. Ext. D3 was followed by a purakkadom Ext. D4 dated 25-7-1123 The plaintiff's mother obtained the rights under Ext. D3 and D4, by assignment. The plaintiff alleged that Govinda Pillai had executed Ext. P6 will bequeathing all his properties in favour of his son Sreedhar Pillai, and Sreedhar Pillai had, in bis turn, by Ext. P3 deed 18-12-1965 gifted the equity of redemption over the properties covered by Ext. P1 mortgage deed in favour of the plaintiff on the strength of which the suit for redemption was instituted against the defendants who are the assignees of the mortgagee under Ext. A mortgage deed. The contention of the defendants was that the will and the gift relied on by the plaintiff are invalid, and they had not come into effect. There are other contentions like bar by adverse possession and limitation etc., with which we are not directly concerned in this Second Appeal. The trial court decreed the suit rejecting the contentions of the appellant-defendants; in appeal, the decree and judgment of the trial court have been confirmed 2. Sri. P. Sukumaran Nair, the Counsel for the appellants, mainly put forward two contentions: (1) Ex. P6 will was not proved in accordance with the provisions contained in S.68 of the Evidence Act; and (2) there was no proof of acceptance of the gift evidenced by Ex. P3 during the life time of the donor Sreedhar Pillai S.68 of the Indian Evidence Act reads as follows: "68. Proof of execution of document required by law to be attested. P3 during the life time of the donor Sreedhar Pillai S.68 of the Indian Evidence Act 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: 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 Registration Act XVI of 1908, unless its execution by the person by whom it purports to have been executed is specifically denied." Clause (c) of S.63 of the Indian Succession Act requires that the will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. It is clear that S.68 is squarely attracted to the case; there is no case put forward that the proviso to the clause is attracted to the facts. 3. S.122 of the Transfer of Property requires: '122. "Gift" defined. "Gift" is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee and accepted by or on behalf of the donee. Acceptance when to be made. Such acceptance must be made during the life-time of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void." 4. Sri. Acceptance when to be made. Such acceptance must be made during the life-time of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void." 4. Sri. Vyasan Poti, the Counsel for the respondent-plaintiff submitted that in their written statement the defendants did not take up a specific plea that the will was not executed by Govinda Pillai the deceased or that it was not attested by witnesses as prescribed by law and the gift deed was not executed by Sreedhar Pillai; on the other hand, the only contention raised was that these documents were not valid, and had not come into force; it is in those circumstances that the plaintiff did not feel the necessity to prove the execution of the will or the acceptance of the gift deed. He also submitted that Ext. P4 and PS would vouchsafe that this will executed as early as in the year 1108, corresponding to 1933, was already acted upon long ago, and the defendants had also occasion to know of the fact that Sreedhar Pillai as the legatee had been exercising the rights over the properties the two items included in the will before his executing Ext. P3 gift. deed. As for the gift deed, he submitted that in fact in the deposition of dw.1, the son of the 1st defendant, he had admitted that it was knowing that a suit against the plaintiff for redemption of the mortgage would be instituted, that the plaintiff tried and obtained the gift deed from Sreedhar Pillay; and that it would indicate that the plaintiff had not only accepted the gift deed during the life time of Sreedhar Pillay, but also it was very much at her instance the gift itself came into being. 5. Sri. Sukumaran Nair contended that assuming, without admitting, that the execution of the will as such is not categorically denied by the defendants, even then though it was allowed to be marked as Ext. P6, in terms of S.68 of the Evidence Act, it cannot be used as evidence until it is proved according to the provisions contained in that Section. In support of the contention he relied on the decision of the Supreme Court in Sait Tarajee Khemchand & Others v. Yelamarli Satyam &. Others (AIR 1971 SC 1865). P6, in terms of S.68 of the Evidence Act, it cannot be used as evidence until it is proved according to the provisions contained in that Section. In support of the contention he relied on the decision of the Supreme Court in Sait Tarajee Khemchand & Others v. Yelamarli Satyam &. Others (AIR 1971 SC 1865). He also relied on the decision of the Supreme Court in Venkatachala Iyengar v. B. N. Thimmajamma & Others (AIR. 1959 SC. 443). 6. Sri Vyasan Poti contended that because of the vagueness in the pleadings in the written statement the plaintiff had no occasion to find out whether the attestors were alive or not, and whether they would be available for examination in court. It is only for this reason that, for the strict compliance with the requirements under S.68, steps were not taken by the plaintiff, and he cannot be, in the circumstances nonsuited on the plea that the provisions of S.68 had not been complied with. There could be no doubt that the propounder of a will has to be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document of his own free will; and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution; this is the mandate of J). 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement. 7. Sri Poti further submitted that Ext. P6 being an ancient document of more than 30 years old on the date of the suit, and it having been produced from proper custody, the presumption under S.90 of the Evidence Act would come in aid of the plaintiff, and the judgments of the court below could be sustained on that ground. S.90 of the Evidence Act reads: "90. Presumption as to documents thirty years old. S.90 of the Evidence Act reads: "90. Presumption as to documents thirty years old. Where any document, purporting or proved to be thirty years old is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by persons by whom it purports to be executed and attested. Explanation. Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. This Explanation applies also to SM." For the presumption under S.90 of the Evidence Act to come into play, it is not enough that the document is purported or proved to be thirty years old and it is found to be produced from proper custody, but it is also shown to be the original document, purported to contain the handwriting and/or the signature, which otherwise would require proof for admitting in evidence. Ext. P6 admittedly being not the original document, but only a copy thereof the plaintiff respondent is not entitled to seek shelter under S.90 of the Evidence Act. 8. As for the gift-deed, Sri Sukumaran Nair pointed out that the reasoning of the courts below is that as the document was produced in Court from the custody of the plaintiff, an inference that the donee had accepted the gift could be drawn. He argued that there is a fallacy in this line of reasoning in as much as the court below appears to have thought that acceptance by the donee at any point of time before the deed being produced in Court would suffice to satisfy the requirements of S.122 of the Transfer of Property Act. He argued that there is a fallacy in this line of reasoning in as much as the court below appears to have thought that acceptance by the donee at any point of time before the deed being produced in Court would suffice to satisfy the requirements of S.122 of the Transfer of Property Act. I am in agreement with the argument of Sri Sukumaran Nair that for a gift to be valid, in terms of S.122 of the Transfer of Property Act, it is not enough that the donee herself produced in Court the document after the death of the donor, but it should be proved by acceptable evidence that the donee had, during the life time of the donor, accepted the gift. This need not, however, be understood to mean that in every case act of acceptance could or should be established by direct evidence. There might be cases, where in the absence of direct evidence, circumstantial evidence would suffice. 9. Sri Poti submitted that even on the defendant's own showing, as disclosed by the evidence of dw.1, the plaintiff, who produced Ext P3 gift deed from her custody, not only had knowledge about the execution of the deed by Sreedhar Pillai, but it was also at her instance the document was executed after having known that the defendants were trying to obtain the equity of redemption. This circumstance according to the counsel would be sufficient to infer acceptance of the gift by the plaintiff. I wish to express no opinion on this point as it is for the trial court to draw inference, if any,, possible on the facts and circumstances disclosed by the entire evidence. 10. The legal position is that the will executed by Govinda Pillai in favour of Sreedhar Pillai for being used as evidence, requires proof in accordance with the provisions of S.68 of the Evidence Act; S.90 of the Evidence Act will not come to the rescue of the plaintiff inasmuch as Ext. 10. The legal position is that the will executed by Govinda Pillai in favour of Sreedhar Pillai for being used as evidence, requires proof in accordance with the provisions of S.68 of the Evidence Act; S.90 of the Evidence Act will not come to the rescue of the plaintiff inasmuch as Ext. P6 admittedly is only a copy of the purported will executed by Govinda Pillai; proof of acceptance of the gift by the donee during the life time of the donor is an essential requisite of S.122 of the Transfer of Property Act, and the fact that it was the plaintiff herself who produced the document in court from her custody by itself will not raise any presumption that the donee had accepted the gift during the lifetime of the donor. 'These infirmities, now pointed out during the course of the argument, not having been specifically raised, at the earlier stage,1 do not think that it would be just or equitable to non-suit the plaintiff on that account. In my vie with reasonable course to be adopted would be to remand the matter to the trial court for fresh disposal after giving reasonable opportunity for adducing evidence in respect of the contentions advanced by the plaintiff and the defendants. 11. For the foregoing reasons, the decrees and judgments of the courts below are set aside, and the matter remanded to the trial court for disposal afresh, according to law, and in the light of the observations contained in this judgment. It is made clear that the object of the remand is only to consider the question relating to the proof of execution of Ext. P6 and acceptance of Ext. P3 gift deed by the donee during the lifetime of the donor, both in accordance with the relevant provisions of law. The question regarding the value of improvements to be paid to the defendants also should be considered afresh in view of the lapse of long time after it was first determined in the year 1967. The trial courts will dispose of the case as expeditiously as possible, at any rate, within six months from the date of the receipt of the records in that court, the suit being one of the year 1966. Parties will appear before the trial court on 17-3-1980. The Second Appeal is disposed of as above. No order as to costs in the second appeal. Parties will appear before the trial court on 17-3-1980. The Second Appeal is disposed of as above. No order as to costs in the second appeal. Allowed.