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2018 DIGILAW 134 (KER)

Leela v. Vasu

2018-02-09

A.HARIPRASAD

body2018
JUDGMENT : A. Hariprasad, J. 1. Non-suited plaintiffs in an action for declaration, partition and prohibitory injunction are the appellants. Suit, as it originally stood, was for a permanent prohibitory injunction relief alone. It was subsequently amended by incorporating a prayer for partition. It was further amended by adding a prayer for a declaration that Ext.B3 gift deed is a fraudulent, void and sham document. Could all these contentions be legally raised together is an aspect worthy to be considered. It is also pertinent to note that when the plaint was amended as above, additional 3rd defendant was impleaded, as he had purchased the property from the original 1st defendant pending litigation. He is the contesting respondent in this appeal. 2. Heard Sri. S. Sreekumar, learned Senior Counsel appearing for the appellants and Sri. S.V. Balakrishna Iyer, learned Senior Counsel appearing for the contesting respondent. 3. Brief facts: 1st appellant is the mother of appellants 2 and 3. Deceased 1st defendant was the father-in-law of the 1st plaintiff/1st appellant. Respondents 1, 4 and 5 are the children of deceased 1st defendant and the siblings of the 1st appellant's husband, deceased Sreedharan. 2nd respondent (additional 3rd defendant) is the purchaser pendente lite. 3rd respondent is the wife of 1st defendant. 4. Plaint schedule property was purchased by the 1st appellant, her husband, deceased Sreedharan, and the 2nd defendant, Vasu, in the year 1975 as per Ext.A1 document. Sreedharan died about three years before the suit. Plaintiffs claimed 2/3rd right over the plaint schedule property. As the defendants were about to alienate the property, initially a suit for prohibitory injunction was filed. As per Ext.A1, the 1st appellant was put in possession of about 20 cents and the remaining extent was managed by the respondents. 5. Deceased 1st defendant filed a written statement contending that as per Ext.B3, 1st appellant's husband Sreedharan and the 2nd defendant/1st respondent, Vasu, had executed a gift deed in his favour. The gift was accepted by the 1st defendant and he had been enjoying the property as absolute owner. According to him, consideration for purchasing the property as per Ext.A1 itself was paid by him. The nominal rights of the assignees in Ext.A1 was released to him by way of Ext.B3 gift deed. Immediately before the gift deed, the 1st defendant had given 18 cents of land to the 1st appellant. According to him, consideration for purchasing the property as per Ext.A1 itself was paid by him. The nominal rights of the assignees in Ext.A1 was released to him by way of Ext.B3 gift deed. Immediately before the gift deed, the 1st defendant had given 18 cents of land to the 1st appellant. 5 cents of land was sold to one Kochuvareed. Excluding those lands, rest of the property remained in title and possession with the 1st defendant. He sold the land to the additional 3rd defendant. 6. 1st respondent (2nd defendant) disputed the allegations raised by the 1st defendant and he virtually supported the plaintiffs. He also claimed a right over the property. 7. Subsequent to the 1st defendant's written statement, the plaint was amended and additional 3rd defendant (2nd respondent) was impleaded. He raised a contention that he had purchased the property from the 1st defendant for a valid consideration. Ext.B1 is the assignment deed executed by the 1st defendant in favour of the 3rd defendant/2nd respondent. He also adopted the contentions of the 1st defendant. 8. Thereafter the plaint was again amended, initially seeking a relief of partition and then by incorporating a prayer for declaration that Ext.B3 is a void, sham and fraudulent document. 9. During the first round, the trial court decreed the suit and a preliminary decree for partition was passed. It was taken up in a first appeal before the lower appellate court. As per judgment in A.S. No. 41 of 1994, the learned Additional District Judge set aside the judgment of the trial court and remanded the case for a fresh disposal, permitting both sides to adduce evidence. Additional document produced before the lower appellate court, along with an interlocutory application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (in short “Code”), was ordered to be sent to the trial court with other records. 10. Subsequently, on evaluating the evidence adduced, the trial court dismissed the suit. That was challenged before the lower appellate court again in A.S. No. 73 of 1999. By the impugned judgment, the lower appellate court confirmed the trial court's judgment and decree, against which the present second appeal is filed. 11. 10. Subsequently, on evaluating the evidence adduced, the trial court dismissed the suit. That was challenged before the lower appellate court again in A.S. No. 73 of 1999. By the impugned judgment, the lower appellate court confirmed the trial court's judgment and decree, against which the present second appeal is filed. 11. Records in this case show that on 26.06.2003 the appeal was admitted and notice was issued to the respondents on the following substantial question of law: (i) When the execution of Ext.B3 gift deed was disputed by the alleged executants, without proof of execution and attestation under Section 68 of the Evidence Act, whether the gift deed can be acted upon? After hearing the learned counsel on both sides and on perusal of the relevant records, I deem it fit to raise the following additional substantial questions of law for consideration: (ii) Whether the execution of Ext.B3 gift deed is specifically denied? (iii) Whether the evidence adduced by one of the attesting witnesses is sufficient to prove Ext.B3 in terms of Section 68 of the Evidence Act, 1872 (in short “Evidence Act”)? (iv) Whether the relief of declaration claimed in the plaint is legally allowable as it is barred by limitation? (v) Whether the contention that Ext.B3 gift deed is void, sham and fraudulent could be raised together? Are such contentions contradictory to one another? (vi) Whether a claim for partition, without seeking a relief of recovery of possession of property from the 3rd defendant (2nd respondent), is maintainable? Substantial question Nos. (i), (ii) and (iii): 12. Having regard to the facts and circumstances, I deem it fit to deal with these substantial questions of law together. Although the suit was one for permanent prohibitory injunction at its inception, by virtue of two amendments, claims for partition and separation of the plaintiffs' share and also a declaration that Ext.B3 gift deed is void, sham and fraudulent have been incorporated. Sri. S.V. Balakrishna Iyer contended that the dispute raised against Ext.B3 is legally baseless. Per contra, Sri. S. Sreekumar would contend that Ext.B3 gift deed was not proved in accordance with the provisions of the Evidence Act. Section 68 of the Evidence Act deals with the proof of execution of a document required by law to be attested. Sri. S.V. Balakrishna Iyer contended that the dispute raised against Ext.B3 is legally baseless. Per contra, Sri. S. Sreekumar would contend that Ext.B3 gift deed was not proved in accordance with the provisions of the Evidence Act. Section 68 of the Evidence Act deals with the proof of execution of a document required by law to be attested. Insofar as a gift deed is concerned, the expression “attested” should be in accordance with Section 3 of the Transfer of Property Act, 1882 (in short “TP Act”). Section 68 of the Evidence Act is extracted hereunder: “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.” Definition of the expression “attested” in Section 3 of the TP Act reads thus: “Attested” in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.” 13. It is the definite case of the appellants that they have specifically denied execution of Ext.B3. It may be profitable for me to look into the averments in the plaint to understand the contentions. It is the definite case of the appellants that they have specifically denied execution of Ext.B3. It may be profitable for me to look into the averments in the plaint to understand the contentions. Plaint was amended on 27.05.1998 as per order on I.A. No. 603 of 1998 whereby paragraph 4(a) had been added. The contentions in the paragraph would show that a certified copy of Ext.B3 was produced before the lower appellate court and the original document was not produced. According to the plaintiffs, the gift did not come into effect and that is evident from the fact that the original gift deed could not be produced. That apart, mutation was not effected in the registry. Further averment is that at any rate Ext.B3 is fraudulent and void. Moreover, it was never acted upon. With these averments they claimed the declaratory relief. 14. There is force in the contention raised by Sri. S.V. Balakrishna Iyer that in the paragraph newly added to the plaint, no denial of execution of Ext.B3 was made. A complex contention that Ext.B3 is void, as well fraudulent and sham had been raised without making any specific allegation that deceased Sreedharan and 2nd defendant Vasu did not execute Ext.B3. Interesting aspect is that in spite of producing a certified copy of Ext.B3 before the appellate court, 2nd defendant has not filed any additional written statement, after the amendment of the plaint, incorporating a plea of denial of Ext.B3. 15. Apart from the testimony of DW1, the contesting respondent, testimonies of DWs 2 and 3 are in support of the execution of Ext.B3 gift deed. DW2 was the U.D. Clerk in the Sub Registrar's Office, Angamaly. He produced the thumb impression register kept in the Registrar's Office which is marked as Ext.X1. According to his assertion, in page 120 in Ext.X1, thumb impressions of deceased Sreedharan and 2nd defendant could be seen. In this context, it is relevant to note that Ext.B3 is a gift deed executed by deceased Sreedharan and 2nd defendant Vasu in favour of their father Krishnan (deceased 1st defendant). Even though DW2 made an assertion that Exts.X1(a) and (b) are the thumb impressions of deceased Sreedharan and 2nd defendant Vasu, no effective cross- examination was made to infer that they did not sign on Ext.X1 register. 16. DW3 Prabhakaran was residing in the neighbourhood of deceased 1st defendant. Even though DW2 made an assertion that Exts.X1(a) and (b) are the thumb impressions of deceased Sreedharan and 2nd defendant Vasu, no effective cross- examination was made to infer that they did not sign on Ext.X1 register. 16. DW3 Prabhakaran was residing in the neighbourhood of deceased 1st defendant. They knew each other closely. According to him, the property was purchased in the name of Sreedharan, 1st appellant and the 2nd defendant by utilising the funds provided by deceased 1st defendant. Admittedly DW3 is a witness to Ext.B3. Through him Ext.B3 gift deed was admitted in evidence. He deposed that the 1st defendant had sold the property to the additional 3rd defendant. He was cross-examined by the plaintiffs as well as the 2nd defendant. Allegation that DW3 was enmical towards the appellants and the 2nd defendant had been strongly denied by him. It has come out in evidence through DW3 that the other attesting witness in Ext.B3 was not alive for tendering evidence. He made an explicit statement that he along with the scribe Kumaran Nair attested Ext.B3 gift deed. In spite of this assertion, no effective cross-examination was done to establish the case of the appellants and the 2nd defendant that Kumaran Nair did not sign the document with an animo attestandi. Going by the evidence of DW3, it can be seen that both the attesting witnesses affixed their signatures with an intention to attest Ext.B3. 17. DW4 (4th respondent) is the brother of 2nd defendant Vasu. He supported the case of the additional 3rd defendant and affirmed that their father obtained the property by virtue of Ext.B3 gift deed and later it was assigned to the 3rd defendant. 18. Another crucial evidence is that of DW5, who is the 1st respondent (2nd defendant). He asserted that as per Ext.A1, himself, his brother Sreedharan and 1st appellant purchased the property by utilising their own funds. He deposed that he along with his brother Sreedharan did not execute any gift deed in favour of their father. It is interesting to note that except such a stray sentence in the chief examination, he has not specifically denied the execution of Ext.B3 gift deed. When confronted with Ext.X1 thumb impression register, he denied putting any thumb impression. In order to impeach his credibility, the summons served on him and duly signed by him was shown, which also he denied. When confronted with Ext.X1 thumb impression register, he denied putting any thumb impression. In order to impeach his credibility, the summons served on him and duly signed by him was shown, which also he denied. It is his version that when he filed the written statement, he was not aware of Ext.B3. He never read Ext.B3. He admitted that his father had sold 5 cents of property to one Kochuvareed. He has no explanation how his father could sell the property without having title and possession over the same. He even disowned his written statement when some of the contentions raised therein were found to be inconvenient. On a reading of his deposition, one can find no effective denial of Ext.B3, except a contention that he was ignorant of its execution. 19. In the light of these materials on record, I shall venture to analyse the legal position regarding the substantial questions of law under consideration. 20. As mentioned above, in the plaint as well as in the written statement of the 2nd defendant, no specific plea denying the execution of Ext.B3 gift deed was raised. Principle that a fact which is not pleaded cannot be proved is unchallengeable. The mandate of Section 68 of the Evidence Act is that a document required by law to be attested shall not be used as evidence until one of the attesting witnesses at least has been called for the purpose of proving its execution; of course, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence. Proviso to the Section makes it abundantly clear 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 under the provisions of the Indian Registration Act, 1908 unless its execution is specifically denied by the person by whom it purports to have been executed. The words “specifically denied” assume importance in the case of a document required by law to be attested, other than a Will. 21. In this context, Order VI Rule 4 and Order VIII Rules 3, 4 and 5 of the Code are worthy to be mentioned. The said provisions clearly show that each allegation of fact in the pleading must be specifically dealt with. 21. In this context, Order VI Rule 4 and Order VIII Rules 3, 4 and 5 of the Code are worthy to be mentioned. The said provisions clearly show that each allegation of fact in the pleading must be specifically dealt with. Above provisions have been incorporated in the Code not merely as a rule of procedure, but they assume significance because in a fair trial, no party shall be taken by surprise and a fair opportunity should be afforded to meet the contentions of the other party. 22. As mentioned above, 1st respondent (2nd defendant), though had an opportunity to file an additional written statement after the plaint was amended, did not avail of it to raise any specific denial of execution of Ext.B3 gift deed. Any amount of evidence adduced without a foundation in the pleadings cannot be looked into. Therefore, the oral evidence of the plaintiffs and the supporting defendant may not be relevant in deciding the issue. 23. A Division Bench of this Court had occasion to consider the meaning of the expression “specific denial” used in the proviso to Section 68 of the Evidence Act in Kannan Nambiar vs. Narayani Amma and Others, 1984 KLT 855 . The relevant principle reads thus: “The requirement is only that the execution should be specifically denied by the party against whom the document is sought to be used. 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. 'Specific' means with exactness, precision in a definite manner. It is clear that something more is required to connote specific denial in juxtaposition to general denial. 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 in 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.” 24. Sri. 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.” 24. Sri. S.V. Balakrishna Iyer placed reliance on Rosammal Issetheenammal Fernandez vs. Joosa Mariyan Fernandez, 2000 SAR (Civil) 824 to urge that as there is no denial of execution of Ext.B3, the contesting respondent has no liability to comply with the conditions in the proviso to Section 68 of the Evidence Act. The principle of law stated in the decision reads thus: “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..........” On the same point, a decision in Ishwar Dass Jain vs. Sohan Lal, AIR 2000 SC 426 is also relied on. 25. Law is clear that a document, other than a Will, required to be attested by law, shall be proved by examining at least one of the attesting witnesses, if there be a specific denial of its execution. But, when there is no specific denial, which expression is clearly understood in the legal parlance in terms of the provisions under the Code and the relevant precedents, no burden to prove it under Section 68 of the Evidence Act could be cast on the propounder. Only exception to the above proposition is a Will, which may have to be proved even though not specifically denied. 26. However, in this case DW3 is the attesting witness to Ext.B3. As mentioned above, his evidence has not been impeached in the cross-examination at the instance of the plaintiffs and supporting defendant. Therefore, the contention of the appellants that Section 68 of the Evidence Act has not been complied with cannot be accepted. 27. Sri. S. Sreekumar strongly contended that Ext.B3 gift deed was not properly attested as required under the provisions of law (Section 3 of the TP Act). I have already extracted the relevant portion from the above Section. Therefore, the contention of the appellants that Section 68 of the Evidence Act has not been complied with cannot be accepted. 27. Sri. S. Sreekumar strongly contended that Ext.B3 gift deed was not properly attested as required under the provisions of law (Section 3 of the TP Act). I have already extracted the relevant portion from the above Section. It is vehementally argued by Sri. S. Sreekumar that only DW3 had attested the document. On a look at Ext.B3, it can be seen that after DW3 signed the document, a licensed document writer by name Puthenveettil Kunjupilla Kumaran Nair had also signed the document. According to Sri. S.V. Balakrishna Iyer, Kumaran Nair did subscribe his signature in the capacity as an attesting witness. There is no legal bar for a document writer to attest a document. Per contra, Sri. S. Sreekumar contended that Kumaran Nair, who was no more at the time of trial, did not sign the document with an animo attestendi and he cannot be regarded as an attesting witness. This rival contention can be resolved by applying the following principles. 28. Kerala Document Writers' Licence Rules, 1960, framed under Section 69 of the Indian Registration Act, 1908, defines “document writer”. The expression means and includes one who is engaged in the profession of preparing documents, viz., doing the work of conveyancing, including the investigation of title, preparation of draft deeds and engrossing the deed on stamp paper for registration (see Rule 3(1)). Rule 5 enumerates the category of persons eligible to get document writer's licence. Rule 10 deals with issue of licence. Rule 18 may be relevant as it deals with attestation of documents. It reads thus: “Attestation of documents.-Every non-testamentary document prepared by a Document Writer and transcribed by a Scribe shall be attested by them in the following manner:- Prepared by (Name in full with License No. of the Licensed Document Writer and signature) Transcribed by (Name in full with License No. of the Licensed Scribe and signature). Note: In the case of type-written or printed document an attestation by a Scribe is not necessary.” Nowhere in the Rules a provision can be seen barring a document writer from attesting a document prepared by him. 29. The contesting respondent has a case that the original of Ext.B3 was produced before the court even at the first opportunity. Note: In the case of type-written or printed document an attestation by a Scribe is not necessary.” Nowhere in the Rules a provision can be seen barring a document writer from attesting a document prepared by him. 29. The contesting respondent has a case that the original of Ext.B3 was produced before the court even at the first opportunity. But, for some reason or other, it could not be traced out from the records. Sri. Balakrishna Iyer contended that the contesting respondent filed a certified copy of Ext.B3 before the lower appellate court and that was one of the reasons for remanding the case to the trial court. However, fact remains that the original of Ext.B3 was not traceable in the case records. Undisputed photocopy of the original document was produced for a perusal of this Court. From the copy, it can be seen that DW3 had signed as witness No. 1 and the document writer, Kumaran Nair had signed as witness No. 2. The document was written in the handwriting of Puthusseri Kunjuvareed Philipose. From Ext.B3 it is clearly evident that Kumaran Nair signed as 2nd witness to the document. Kumaran Nair's identity has been clearly revealed and his license number is also mentioned in Ext.B3. DW3 is shown as 1st witness to the document by writing the numeral 1' against his name. Similarly, numeral 2' is written against the name of Kumaran Nair, clearly indicating that he signed the document as an attesting witness. Merely for the reason that his license number is also mentioned in Ext.B3, it cannot be held that he signed the document in the capacity as a document writer alone. Unchallenged testimony of DW3 in this regard fortifies the animo attestandi exhibited by Kumaran Nair. For the aforementioned reasons, I find that the contention of the appellants that Ext.B3 gift deed was not attested as required under law cannot be accepted. 30. There cannot be a dispute to the proposition that if one attesting witness can prove the execution of a compulsorily attestable document, examination of the other witness can be dispensed with. The Supreme Court in Janki Narayan Bhoir vs. Narayan Namdeo Kadam, (2003) 2 SCC 91 laid down the under mentioned law “10...... 30. There cannot be a dispute to the proposition that if one attesting witness can prove the execution of a compulsorily attestable document, examination of the other witness can be dispensed with. The Supreme Court in Janki Narayan Bhoir vs. Narayan Namdeo Kadam, (2003) 2 SCC 91 laid down the under mentioned law “10...... In a way, Section 68 gives a concession to those who want to prove and establish a will in a court of law by examining at least one attesting witness even though the will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of clause (c) of Section 63 viz. attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will.…...........” This principle is reiterated in Rur Singh and Others vs. Bachan Kaur, (2009) 11 SCC 1 . It is to be remembered that the above principle of law said in the context of a Will applies in the case of a gift as well. 31. Sri. S. Sreekumar contended that effect of subscribing signature by the scribe cannot be given the same status as that of an attesting witness. According to him, the principles stated in Kamalam vs. Ayyasamy, (2001) 7 SCC 503 apply to this case. After going through the decision, I am of the definite view that the fact situation in Kamalam's case is completely different from the facts in this case and the Supreme Court in a totally different set of facts held in Kamalam's case that the scribe cannot be identified to be of the same status as that of an attesting witness. 32. In relation to a Will, the Supreme Court in M.L. Abdul Jabbar Sahib vs. H. Venkata Sastri and Sons and Others, AIR 1969 SC 1147 pronounced on the word “attested”, which can be safely applied in the case of a gift also. 32. In relation to a Will, the Supreme Court in M.L. Abdul Jabbar Sahib vs. H. Venkata Sastri and Sons and Others, AIR 1969 SC 1147 pronounced on the word “attested”, which can be safely applied in the case of a gift also. In every case the court must be satisfied that the names were written animo attenstandi and evidence is admissible to show that the witness had an intention to attest. Applying this principle in this case, it can only be found that the scribe Kumaran Nair attested the document with animo attestandi and this is fortified from the recitals in Ext.B3 itself, coupled with the unimpeached testimony of DW3. From the above discussion, it will be clear that the contention raised by the appellants that Ext.B3 gift deed was not properly attested cannot be approved. 33. Another point raised by Sri. S.V. Balakrishna Iyer is that certificate of registration amounts to execution of a document. In order to canvass this proposition, a decision rendered by a learned Single Judge in Sumathi Amma vs. Kunjulekshmi Amma, 1964 KLT 945 is pressed into service. The principle of law laid down is thus: “In cases where S.68 of the Evidence Act has no application, the certificate of registration in the light of the presumption in S.114, illustration (e) of the Evidence Act is evidence of execution, and can, in fit cases, be accepted as proof thereof. The facts required to be proved under S.67 can be proved by any kind of evidence, and there is nothing in the section to indicate that the evidence furnished by the registration certificate and by the presumption in illustration (e) of S.114 of the Evidence Act, is to be excluded. The court is not bound to accept the certificate as sufficient proof, and, where better evidence is available, can insist on better evidence, drawing the presumption in illustration (g) of S.114 of the Evidence Act.” 34. Sri. S.V. Balakrishna Iyer contended that there are enough circumstances proved in evidence to show that deceased 1st defendant had accepted Ext.B3 gift. Acceptance of Ext.B3 gift is established from the facts that he had admittedly assigned five cents of property to a stranger and executed a document in favour of the 3rd defendant. Sri. S.V. Balakrishna Iyer contended that there are enough circumstances proved in evidence to show that deceased 1st defendant had accepted Ext.B3 gift. Acceptance of Ext.B3 gift is established from the facts that he had admittedly assigned five cents of property to a stranger and executed a document in favour of the 3rd defendant. Relying on Narayani Bhanumathi vs. Lelitha Bai, 1973 KLT 961 it is contended that slightest evidence of acceptance of gift would be sufficient because normally when a person gifts property to another, and it is not an onerous gift, one may expect the other to accept such a gift, when once it comes to his knowledge, since normally any person would be only too willing to promote his own interests. In this case, unambiguous evidence established the acceptance of gift. It is therefore contended that not only the execution and attestation of Ext.B3, acceptance and dealing with the gifted property by deceased 1st defendant are also established from the evidence in the case. On an evaluation of the entire evidence, I agree with the contention of Sri. S.V. Balakrishna Iyer that Ext.B3 was duly executed and attested and it was accepted promptly. 35. To conclude this point, I hold that a gift deed duly executed and attested in accordance with Section 123 read with Section 3 of the TP Act need not be proved under Section 68 of the Evidence Act, if its execution is not specifically denied. Evidence adduced by one of the attesting witnesses is sufficient to prove a gift deed in terms of Section 68 of the Evidence Act in case it is specifically denied, provided his evidence is credible and establishes the requirements in Section 3 of the TP Act and Section 68 of the Evidence Act. There is no legal bar for a scribe to attest a gift deed provided he has the animo attestandi at the material time. 36. Applying the above principles, I find that Ext.B3 gift deed stands proved in all respects. Therefore, the points under consideration are decided against the appellants. Substantial Question No. (iv) 37. One of the prayers in the suit, after its amendment, is for a declaration that Ext.B3 is a fraudulent document, void document and also a sham document. It is pertinent to note that Ext.B3 gift deed is dated 05.08.1975. The suit was filed for a prohibitory injunction alone on 31.08.1988. Substantial Question No. (iv) 37. One of the prayers in the suit, after its amendment, is for a declaration that Ext.B3 is a fraudulent document, void document and also a sham document. It is pertinent to note that Ext.B3 gift deed is dated 05.08.1975. The suit was filed for a prohibitory injunction alone on 31.08.1988. It was amended incorporating the declaratory relief in the year 1998, ie., exactly after ten years of institution of the suit. It is relevant to notice that initially trial court pronounced a judgment in the suit on 16.10.1993 and the first appellate court remanded the case to the trial court vide judgment dated 15.07.1997. Thereafter the amendment was effected in the plaint seeking a declaratory relief. One of the contentions raised is that the declaratory relief claimed is hopelessly barred by limitation. 38. Going by the averments in the plaint, it can be seen that the relevant provision applicable in this case is Article 58 of the Limitation Act. According to this Article, a suit to obtain a declaration of the nature claimed herein should have been instituted within a period of three years when the right to sue first accrued. In this case, the 1st defendant, who was contesting the suit, filed a written statement on 02.09.1989 specifically contending in paragraph 3 that Ext.B3 gift deed was executed by his children Sreedharan and Vasu in the year 1975. The plaintiffs cannot take a position that they were not aware of the contention raised by the 1st defendant claiming a right to the property covered by Ext.B3. From the judgment of the trial court in the first round of litigation, dated 16.10.1993, it can be seen that an issue had been cast as to whether Ext.B3 gift deed was genuine or not. Trial court entered a finding thereon that Ext.B3 was not proved as the donee (deceased 1st defendant) did not adduce evidence to support the document. However, the fact remains that the contention based on Ext.B3 was urged by the 1st defendant at the first opportunity. Still, the plaintiffs did not choose to amend the plaint suitably by raising a challenge against Ext.B3. 39. Article 58 of the Limitation Act is a residuary Article and covers all those cases which are not governed by Articles 56 and 57. Still, the plaintiffs did not choose to amend the plaint suitably by raising a challenge against Ext.B3. 39. Article 58 of the Limitation Act is a residuary Article and covers all those cases which are not governed by Articles 56 and 57. It is well settled that this Article does not apply to a suit for possession covered by Article 65 of the Limitation Act. In that case, probably a person may contend that the declaratory relief could be claimed within 12 years as stipulated in Article 65 of the Limitation Act. But, in this case, no relief of recovery of possession on the strength of title has been claimed. Therefore, Article 58 of the Limitation Act should apply to the declaration sought for in the plaint. Viewing from that angle, it can only be found that the suit is time barred. This point is decided against the appellants. Substantial Question No. (vi) 40. In order to have a continuity in discussion, I shall now answer this point relating to nature of the suit essentially required in the context of the pleadings. As mentioned above, the appellants in their plaint categorically contended that 2nd respondent (additional 3rd defendant) has no right over the property because his assignor, deceased 1st defendant, did not get any right, title or interest in respect of the property covered by Ext.B3 on account of the fact that the document was not property executed and attested. I have already seen that Ext.B3 gift deed was properly executed, attested and registered and also that the gift was accepted as per the requirements of law. Whether a suit is in the correct form or not has to be decided with reference to the pleadings in the plaint. The plaint, after successive amendments, has taken completely a new shape. 2nd respondent has raised a definite plea, drawing support from the written statement filed by the 1st defendant, that he is in possession of the property scheduled to Ext.B3 by virtue of a valid assignment. It is therefore clear that the plaintiffs and the supporting defendant (1st respondent) had gone out of possession of the property. 41. It is trite that in a suit for partition, essentially the parties must have a pre-existing joint right. It is therefore clear that the plaintiffs and the supporting defendant (1st respondent) had gone out of possession of the property. 41. It is trite that in a suit for partition, essentially the parties must have a pre-existing joint right. Corollary of the rule is that a fractional right holder cannot seek partition of land from a person holding it either without a title or claiming a title from another source. In other words, the parties to a partition suit should derive title from an anterior common source. If the defendant in a suit for partition simplicitor holds the property under a different title or without any title, the remedy of a plaintiff seeking partition is to join all the rightful owners and the stranger, holding the property under a different title or as a trespasser, as parties to the suit and in that case the plaintiff is bound to seek recovery of property from the stranger for bringing the partiable assets to a common hotchpot. Then only it can be divided among the sharers. Unless such a claim is made in a suit for partition, the property in the hands of a stranger, not claiming title jointly with the plaintiff, cannot be held liable to be partitioned. 42. In this case, despite putting forward a rival title by the 2nd respondent, the appellants did not choose to seek recovery of possession from him. It is also pertinent to note that no court fee was paid for recovery of the property. Relying on the decision in Sarojini Amma vs. Pappi Amma and Others, 1973 KLT 148 , Sri. S.V. Balakrishna Iyer contended that the suit is legally incompetent. Following proposition from the decision is relevant for this case: “It cannot be denied, and it is not disputed also before us, that there cannot be a partition of a property unless it is brought into the hotchpot of the joint family or of the co-owners, as the case may be. It is, therefore, necessary in this case to eject the trespassers from the portion of the property which is alleged to have gone out of the possession of the joint family before partition could be effected...............” Viewing from this angle also the suit is not maintainable. Substantial Question No. (v) 43. As observed earlier, the declaratory reliefs claimed in the plaint are incongruous to one another. Substantial Question No. (v) 43. As observed earlier, the declaratory reliefs claimed in the plaint are incongruous to one another. Multipronged attacks are levelled against Ext.B3 gift deed. It is said to be a document fraudulently created. At the same breath, it is said to be a void document. At the same time, it is contended to be a sham document. These three qualifications attributed to Ext.B3 are different legal concepts. Section 17 of the Indian Contract Act, 1872, (in short, “the Contract Act”) defines “fraud” in the following terms: “Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract: (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true. (2) the active concealment of a fact by one having knowledge or belief of the fact. (3) a promise made without any intention of performing it. (4) any other act fitted to deceive. (5) any such act or omission as the law specially declares to be fraudulent. Explanation.-Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech.” 44. Fundamental rule is that a mere false statement is not a fraud. Fraud is committed by one man who causes another to act on a false belief by a false representation, which he does not himself believe to be true. He need not have a definite knowledge or belief that it is not true. 45. A party relying on fraud must state in his plaint the particulars of fraud with dates and items, if necessary. This is the mandate of Order VI Rule 4 of the Code (See: Ramesh B. Desai vs. Bipin Vadilal Mehta, AIR 2006 SC 3672 and Chief Engineer, M.S.E.B. vs. Suresh Raghunath Bhokare, (2005) 10 SCC 465 ). 45. A party relying on fraud must state in his plaint the particulars of fraud with dates and items, if necessary. This is the mandate of Order VI Rule 4 of the Code (See: Ramesh B. Desai vs. Bipin Vadilal Mehta, AIR 2006 SC 3672 and Chief Engineer, M.S.E.B. vs. Suresh Raghunath Bhokare, (2005) 10 SCC 465 ). It is a fundamental principle that a plaintiff alleging fraud must both plead and prove it and must give specific particulars of the alleged fraud (See: Shanti Budhiya Vesta Patel vs. Nirmala Jayprakash Tiwari, AIR 2010 SC 2132 and Saradamani Kandappan vs. Rajalakshmi, (2011) 12 SCC 18 ). As revealed from the discussion above, in this case absolutely no pleading is made in the plaint as to how a fraud was committed and when it was committed. In fact, the plaintiffs are not parties to Ext.B3 document. Therefore, it was not possible for them to allege a fraud with the required specificity. 2nd defendant, who was a party to the document, should have alleged fraud against Ext.B3 in specific terms. Both the plaintiffs and the 2nd defendant utterly failed in raising the requisite pleas to establish that a fraud was perpetrated on the 2nd defendant and deceased Sreedharan which led to the execution of Ext.B3. In the absence of a specific pleading as required by law, no amount of proof can salvage the situation. 46. Section 19 of the Contract Act clearly says that when consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. It is, therefore, beyond any doubt that by merely alleging fraud, no document can be declared void. Here, there is no prayer in the plaint to cancel or set aside Ext.B3, which was essential in the case of a voidable document. Therefore, on this count the appellants are bound to suffer a setback. 47. The distinction between void and voidable documents has been clearly pronounced by the Supreme Court in Dhurandhar Prasad Singh vs. Jai Prakash University and Others, (2001) 6 SCC 534 as follows: “Thus the expressions “void and voidable” have been the subject-matter of consideration on innumerable occasions by courts. The expression “void” has several facets. 47. The distinction between void and voidable documents has been clearly pronounced by the Supreme Court in Dhurandhar Prasad Singh vs. Jai Prakash University and Others, (2001) 6 SCC 534 as follows: “Thus the expressions “void and voidable” have been the subject-matter of consideration on innumerable occasions by courts. The expression “void” has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g. may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g. if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable.” 48. Another plea raised in the plaint is that Ext.B3 gift deed is a sham and nominal document. In order to raise such a plea, no doubt, the existence of Ext.B3 must be recognized. In other words, a document which was executed properly was not intended to be acted upon is the gist of the said contention. Another plea raised in the plaint is that Ext.B3 gift deed is a sham and nominal document. In order to raise such a plea, no doubt, the existence of Ext.B3 must be recognized. In other words, a document which was executed properly was not intended to be acted upon is the gist of the said contention. A transaction which is said to be sham or nominal is one which is not intended to be acted upon and no legal effect flows from the transaction as the parties had no intention to effectuate the transaction. It is therefore clear that the challenges against a document that it is fraudulent, that it is void and that it is sham and nominal cannot go together as they are in three different watertight compartments. Resultantly, all the pleas which are mutually incongruous to one another will only destroy the case of the plaintiffs. It is interesting to note that none of the pleas was specifically urged and attempted to be proved, except seeking a relief to that effect through a subsequent amendment. Pertinent aspect is that no relevant fact was incorporated in the body of the plaint justifying a relief of declaration as mentioned above. So much so, the parties could not have adduced any evidence to substantiate their claim for a declaratory relief. Hence this question is also decided against the appellants. 49. Before parting with this case, I may painfully note that the lawyer at the first level unjustifiably failed to marshal the facts correctly and apply the correct legal principles while drafting the plaint. As in so many other cases, architect of the plaint miserably failed to remember the reality that the pleadings in a civil case is the corner stone of a multi-layer litigation, which may perhaps end up in the highest court of the land. Drafting faulty, unscientific and perfunctory pleadings would be a wasteful exercise like building a castle on the seashore without laying a foundation. It may crumble under its own weight at any time. Such slipshod acts are great disservices not only to the litigant, but also to the justice administration system. 50. For the aforementioned reasons, I find all the substantial questions of law against the appellants and that the lower appellate court is justified in arriving at the conclusion that the suit is not legally competent. Such slipshod acts are great disservices not only to the litigant, but also to the justice administration system. 50. For the aforementioned reasons, I find all the substantial questions of law against the appellants and that the lower appellate court is justified in arriving at the conclusion that the suit is not legally competent. Judgment and decree passed by the lower appellate court is confirmed. In the result, the appeal is dismissed. There is no order as to costs. All pending interlocutory applications will stand dismissed.