KANNAN NAMBIAR v. NARAYANI AMMA & ORS. — 1984 DIGILAW 224 (KER)

Judgment :- 1. This is an appeal against the judgment in O. S. No. 11 of 1977 on the file of the Subordinate Judge's Court, Tellicherry. The suit O. S. No. 11 of 1977 was for partition. 2. Plaintiff is the daughter of one Lakshmi Amma. Lakshmi Amma had three brothers. Kunhappa alias Anandan Nambiar and defendants 1 and 2. Defendants 7 to 12 are the children of Kunhappa Nambiar Defendants 7 to 12 claim 1/4th share in the property scheduled in the plaint. They claim the property as the legal representatives of Kunhappa Nambiar. This claim is resisted by the plaintiff on the strength of a gift deed evidenced by Ext. Al. Ext. Al gift deed is dated 7-8-1956. This gift deed is in favour of Lakshmi Amma by Kunhappa Nambiar in respect of his share in the properties scheduled in the plaint. Plaintiff contended that defendants 7 to 12 had no right to get share in the properties scheduled. Defendants 7 to 12 in turn raised the contention that the gift deed is not valid and genuine. 3. The only point that survives for consideration in this appeal is the question of validity of the gift deed Ext. Al. 4. Now the details of the contention raised by defendants 7 to 12 in their written statement in regard to the gift deed. It is contended that the gift deed executed by their father is not 'true' and valid and not binding on them. There was no necessity for their father to execute such a gift deed. Their father had been admitted in the nursing home of Dr. A. G. Nambiar at Cannanore. He was not in a sound state of mind and the husband of Lakshmi Amma used to visit him at the nursing home occasionally and if at all any gift deed had been executed it would have been done on the misrepresentation and undue influence exerted by Lakshmi Amma's husband. Finally they urged that at any rate to their knowledge their father had not executed a gift deed exercising his free will and volition. 5. The trial court, after considering the evidence both oral and documentary, held that the gift is genuine and by the gift, the plaintiff's mother obtained all the rights of Kunhappa Nambiar in the scheduled property. 6. The learned counsel for the appellants raised two points and argued the points very ably. 5. The trial court, after considering the evidence both oral and documentary, held that the gift is genuine and by the gift, the plaintiff's mother obtained all the rights of Kunhappa Nambiar in the scheduled property. 6. The learned counsel for the appellants raised two points and argued the points very ably. He contended that the gift has not been proved in accordance with the provisions of the Evidence Act relating to proof of documents which required attestation. The other contention raised is that the gift cannot be given effect to since it has been executed under vitiating circumstances and that it is void Elaborating his argument on point No. 1, the learned counsel referred to us S.123 of the Transfer of Property Act and S.68 of the Indian Evidence Act. He cited the following decisions for our consideration. Zaharul Hussain v. Mahadeo Ramji (AIR. 1949 Nag. 149), Lal Mohan v. Ramanath Shaha (AIR 1954 Tripura 17) and Kalicharan v. Suraj Bali (AIR. 1941 Oudh 89). 7. S.68 of the Evidence Act reads thus: "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 as 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." The learned counsel points out, relying on the section that the document Ext. Al shall not be used as evidence until one attesting witness at least has been called for, for the purpose of proving its execution. He submits that no attesting witness has been examined in this case and as such the gift deed should not be taken into consideration for fixing the share of defendants 7 to 12. 8. The learned counsel for the respondents relies on the proviso to S.68 of the Indian Evidence Act. He submits that no attesting witness has been examined in this case and as such the gift deed should not be taken into consideration for fixing the share of defendants 7 to 12. 8. The learned counsel for the respondents relies on the proviso to S.68 of the Indian Evidence Act. He submits that the requirement to call at least one attesting witness to prove the execution of the document is conditioned by the proviso. It is necessary only when the execution of the deed is specifically denied by the person who disputes the gift. The learned counsel points out that the gift has been duly registered, and it has been duly proved and marked in the case without objection. He strongly urges that there is no specific denial of the execution of Ext. Al either in the pleading or in the evidence. 9. What is the effect of allowing a document to go in trial without objection? Admitting a document to go in trial without challenge or protest cannot take the place of proof of execution which would establish it, what it purports to be. Where evidence has been received without remonstration or demur, in direct contravention of an imperative provision of law, the principle of acquiescence, waiver or estoppel can never be imported to cure the defect, for none of these principles is available against a positive legislative enactment. See Shib Chandra v. Gour Chandra (AIR 1922 Cal. 1607). 10. The learned counsel, Shri Karunakaran, tells us that the point. regarding proper proof of Ext. Al has not been pressed before the trial court. It is true that there is no discussion on this point in the judgment of the trial court. Even if it had not been pointedly urged before the trial court, we do not think that we will be justified if we decline to examine the point raised by the learned counsel for the appellants. We are reminded that we are hearing a first appeal. Counsel then argued that the section is attracted only if the execution is denied specifically only by that person who has executed the document and that in this case it is not Anandan Nambiar but his children who deny the execution of the document. 11. In AIR. We are reminded that we are hearing a first appeal. Counsel then argued that the section is attracted only if the execution is denied specifically only by that person who has executed the document and that in this case it is not Anandan Nambiar but his children who deny the execution of the document. 11. In AIR. 1949 Nagpur,149 it has been held: "The words 'specifically denied' in S.68 mean specifically denied by the party against whom the document is sought to be used and not only by the executant. The denial, therefore, is to come from the party who is entitled to dispute or is interested in disputing its execution Where, therefore, the purchaser of the equity of redemption in a suit against him by the mortgagee denies the execution of the mortgage, the calling of an attesting witness to prove the execution cannot be dispensed with, though the executant remains absent or does not specifically deny the valid attestation." The legal heirs of Anandan Nambiar are competent to deny the execution of the document in terms of the proviso to S.68 of the Evidence Act. The requirement is only that the execution should be specifically denied by the party against whom the document is sought to be used. Vide AIR. 1959 Mysore 148, AIR. 1943 Oudh 46, AIR. 1932 Allahabad 320 and AIR. 1955 Tripura 70. We have no doubt that not only the executant but also all the persons who are interested in denying the execution of the document are entitled to invoke the aid of the proviso to S.68 of the Evidence Act. The two other decisions cited by the counsel for the appellants hold that, not only the executant but also, those who claim under him can specifically deny execution. 12. Now the only question that remains for investigation is whether there is a specific denial of execution of Ext. Al gift deed by the appellants. Ext. Al was produced before the trial court by the plaintiff. It was marked without any objection. 13. Ab initio we have to examine whether there is any specific denial of the execution of the document, in the pleadings Before considering whether there is specific denial we have to consider what is the exact requirement demanded when the proviso enjoins a specific denial. 'Specific' means with exactness, precision in a definite manner (See Webster's 3rd New International Dictionary). Ab initio we have to examine whether there is any specific denial of the execution of the document, in the pleadings Before considering whether there is specific denial we have to consider what is the exact requirement demanded when the proviso enjoins a specific denial. 'Specific' means with exactness, precision in a definite manner (See Webster's 3rd New International Dictionary). It is clear, that something more is required to connote specific denial in juxtaposition to genera] denial. See Dashrath Prasad v. Lallosing (AIR. 1951 Nag. 343) 14. We think that specific denial of execution of gift is an unambiguous and categorical statement that the donor did not execute the document. It means not only that the denial must be is express terms but that it should be unqualified, manifest and explicit. It should be certain and definite denial of execution. What has to be specifically denied is the execution of the document. Other contentions not necessarily and distinctly referring to the execution of the document by the alleged executant cannot be gathered, for the denial contemplated in the proviso. 15. The learned counsel for the appellants relies on AIR. 1941 Oudh 89 for the purpose of understanding the meaning of the word execution. It is held in that decision that execution means and includes the whole series of acts which are necessary to give the document validity. The word execution will include not only the signature but the whole series of acts or formalities which are necessary to give the document validity as a mortgage or a gift as the case may be. 16. In Para.4 of the written statement the defendants have stated that it is not true that Anandan Nambiar has given a gift to Lakshmi Amma and that the plaintiff obtained that right from Lakshmi Amma. Further it is stated that to the knowledge of these defendants (defendants 7 to 12) Kunhappa alias Anandan Nambiar with his free will and volition had not made any gift deed and that the alleged gift deed is a document created by exerting undue influence. The contentions in the written statement are concluded by saying that at any rate the document is not legal and valid. The learned counsel very strongly argued that a reading of Para.4 of the written statement as a whole, would conclusively show that there is a specific denial of the execution of the gift deed. The contentions in the written statement are concluded by saying that at any rate the document is not legal and valid. The learned counsel very strongly argued that a reading of Para.4 of the written statement as a whole, would conclusively show that there is a specific denial of the execution of the gift deed. We do not think that the defendants had put forward a case of specific denial of the execution of the gift deed. The denial of execution is not express, definite and manifest. On the contrary what they pleaded is that the gift deed has been executed under vitiating circumstances. This fact is more or less clear from the pleading itself. Our conclusions are more fortified by the evidence in this case. When Pw.1 was examined the counsel for defendants 7 to 12 elicited an answer from pw.1 on a suggestive question: The question which elicited the above answer gives a clear understanding of the case of the defendants as they understood their case. Defendants have no case that no document was executed by Anandan Nambiar. Their case is that the document is not valid because it had been executed under circumstances which would render the document invalid. There is no specific denial of the execution of the document. The respondents can seek the aid of the proviso to S.68 of the Evidence Act. No defect in not calling an attesting witness to prove the document. We do not think that we can ignore Ext. Al gift deed on the ground that no attesting witness has been called for, for proving the gift deed. 17. The next contention raised by the learned counsel for the appellants is that the document Ext. Al cannot be given effect to, because it was got executed by exerting undue influence and coercion. The circumstances pointed out by the counsel for the appellants are not very convincing. It is stated that the document was executed while Anandan Nambiar was in the hospital. The registration copy of the gift deed shows clear endorsement of Anandan Nambiar in the document. pw.1 has deposed that the gift deed was executed when Anandan Nambiar was in fine fettle. There is no independent evidence to prove that the gift was executed when Anandan Nambiar was not in a state of sound mental condition. The gift was executed as early as in August 1956. pw.1 has deposed that the gift deed was executed when Anandan Nambiar was in fine fettle. There is no independent evidence to prove that the gift was executed when Anandan Nambiar was not in a state of sound mental condition. The gift was executed as early as in August 1956. This document was referred to in a partition deed of the year 1967. For the defendants' case that Anandan Nambiar was admitted in a nursing home of Dr. A. G. Nambiar at Cannanore, there is no proof. When Anandan Nambiar was admitted in the nursing home he was in service. The service records would have given some evidence in regard to his absence from duty for the period he was in hospital. No evidence was adduced to show that Anandan Nambiar has taken leave. On a careful evaluation of the evidence it is difficult for us to hold that the gift deed was executed without the free will and knowledge of Anandan Nambiar. No vitiating causes are established in the case. We hold that the document Ext. Al is valid and genuine. In the result, there is no merit in the appeal and it is dismissed, in the circumstances without costs. Dismissed.