Donee Not Required To Examine Attesting Witness If There Is No Specific Denial Of Execution Of Gift: SC [Read Judgment]

The Supreme Court has held that, when the execution of the gift deed was not specifically denied in the suit filed, it is not necessary for the Donee to examine one of the attesting witnesses in terms of proviso to Section 68 of the Indian Evidence Act, 1872.

In this case [Govindbhai Chhotabhai Patel vs. Patel Ramanbhai Mathurbhai], the High Court dismissed the suit filed by the plaintiffs against the defendant on the ground that they had not denied the execution of the document but only alleged forgery and fabrication. It was further held that the subject property of the gift deed was not ancestral property, but a self acquired through the will executed in favour of the donor by his father.

The bench comprising Justice L. Nageswara Rao and Justice Hemant Gupta quoted in approval the following observations made in the Kerala High Court judgment in Kannan Nambiar v. Narayani Amma, which while interpreting Section 68 of Indian Evidence Act, had observed that the specific denial of execution of gift must be an unambiguous and categorical statement that the donor did not execute the document:

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 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

The court noted that, in this case, the plaintiffs came out with the plea of forgery and fabrication of the gift deed which is based on different allegations and proof than the proof of document attested. While upholding the High Court judgment, the bench said:

The facts of the present case are akin to the facts which were before the Kerala High Court in Kannan Nambiar. The appellants have not denied the execution of the document but alleged forgery and fabrication. In the absence of any evidence of any forgery or fabrication and in the absence of specific denial of the execution of the gift deed in the manner held in Kannan Nambiar, the Donee was under no obligation to examine one of the attesting witnesses of the gift deed. As per evidence on record, the Donee was taking care of the Donor for many years. The appellants were residing in the United States but failed to take care of their parents. Therefore, the father of the appellants has executed gift deed in favour of a person who stood by him.In the absence of any intention in the Will, beneficiary would acquire the property as self-acquired property

In the absence of any intention in the Will, beneficiary would acquire the property as self-acquired property

Another issue that arose in this case was whether the plaintiffs prove that the suit properties are ancestral properties and the donor had no right to execute the gift deed. Referring to judgment in C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar, the bench observed that since the beneficiary of the Will was his son and in the absence of any intention in the Will, beneficiary would acquire the property as self-acquired property. It observed:

The burden of proof that the property was ancestral was on the plaintiffs alone. It was for them to prove that the Will of Ashabhai intended to convey the property for the benefit of the family so as to be treated as ancestral property. In the absence of any such averment or proof, the property in the hands of Donor has to be treated as self-acquired property. Once the property in the hands of Donor is held to be self-acquired property, he was competent to deal with his property in such a manner he considers as proper including by executing a gift deed in favour of a stranger to the family. 

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