2010(6) ALL MR 31
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

B.R. GAVAI, J.

Dattatray Narayan Aher Vs. Bhaskar Narayan Aher

Second Appeal No.166 of 1998

31st August, 2010

Petitioner Counsel: Mr. G. S. GODBOLE , Ms. JAI KANADE
Respondent Counsel: Mr. M. M. SATHAYE

Evidence Act (1872), S.68 - Proof of execution of document - Donor specifically denying execution of gift deed - Examination of attesting witness is necessary - It cannot be said that since the scribe was examined it was not necessary to examine the attesting witness.

In the instant case, the donor has unequivocally stated that he is not admitting the gift deed. He has also clearly stated that he has not executed the gift deed, in favour the defendant. He has further stated that he had signed the documents on the say of the defendant as the defendant informed him that execution of the said document was necessary for obtaining a loan. Hence merely because donor had admitted the signature, did not mean that the donor had also admitted execution of gift deed. The donor has categorically stated that he is an illiterate person, whereas the defendant is an educated officer, who at the relevant time was Tahsildar. He has further stated that the contents of documents were not read over to him. In view of specific denial on the part of the donor-plaintiff, it was necessary for the defendant to have examined at least one attesting witness to prove execution of the said gift deed. AIR 2003 Orissa 123 Foll. [Para 12,15]

Cases Cited:
M. L. Abdul Jabbar Sahib Vs. M. V. Venkata Sastri, 1969(1) SCC 573 [Para 3,16]
N. Kamalam Vs. Ayyasamy, 2001(7) SCC 503 [Para 3,14,16]
Nainsukhdas Vs. Gowardhandas, AIR 1948 Nag. 110 [Para 4]
K. Narasimhappa Vs. Lakkanna, AIR 1959 Mys. 148 [Para 4]
Kadiya Umma Vs. Mayankutty, AIR 1992 Ker. 261 [Para 4]
Engineers Corpn. Pvt. Ltd. Vs. W. B. Financial Corpn., AIR 1986 Cal. 132 [Para 4]
Rosammal Issetheenammal Fernandez (dead) by LRs Vs. Joosa Mariyan Fernandez, 2000(4) ALL MR 587 (S.C.)=(2000)7 SCC 189 [Para 6,15]
Union of India Vs. M/s. Chaturbhai M. Patel & Co., (1976)1 SCC 747 [Para 6,17]
Smt. Chandrakantaben w/o. Jayantilal Bapalal Modi Vs. Vadilal Bapalal Modi, (1989)2 SCC 630 [Para 7]
Smt. Nishamani Singh Vs. Nishamani Dibya, AIR 2003 Orissa 123 [Para 8,13]
Brij Mohan Bakhshi Vs. Amar Nath Bakhshi, AIR 1980 J & K 54 [Para 8,13]
Manohar Lal Vs. Smt. Rajeshwari Devi, AIR 1977 All 36 [Para 8,13]
Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, 2003(2) ALL MR 689 (S.C.)=AIR 2003 SC 761 [Para 9]
Kashibai w/o. Lachiram Vs. Parwatibai w/o. Lachiram, 1996(1) Mh.L.J. 1 [Para 9,15,16]
Kannian Vs. Sethurama, AIR 2000 SC 3522(1) [Para 9,14]
Gitabai w/o. Sriniwas Vs. Dayaram Shankar, AIR 1970 Bom. 160 [Para 10,13]
N. M. Ramachandraiah Vs. State of Karnataka, AIR 2007 Karnataka 164 [Para 10,13]
Vintha Venkateswara Reddi Vs. Anjamma, AIR 1966 AP 354 [Para 10,13]
Re: Kuttadan Velayudhan, AIR 2001 Kerala 123 [Para 10,13]
Karbalai Begum Vs. Mohd. Sayeed, AIR 1981 SC 77 [Para 10,17]


JUDGMENT

JUDGMENT:- The appellant challenges the concurrent judgments and orders passed by the learned Civil Judge, S.D., Nashik dated 30.12.1991 in Special Civil Suit No.458/88 thereby decreeing the suit filed by the respondent-plaintiff and by the learned Second Additional District Judge, Nashik in Civil Appeal No.37/92 dated 19.1.1998 thereby dismissing the appeal filed by the present appellant.

2. The respondent-plaintiff had filed a suit for cancellation of the gift deed dated 9.5.1978 allegedly executed by him in favour of the appellant-defendant regarding suit property and for declaration that he was owner of the said suit property and for perpetual injunction against the defendant from interfering with the plaintiff's possession. It was the case of the plaintiff that the plaintiff had never executed any gift deed in favour of the defendant and the defendant had obtained his signature on certain documents posing the said documents to be loan documents. It was the contention of the plaintiff that only when on 14.9.1988, he received a notice from the Talathi, on an application filed by the defendant, for the mutation of his name in the revenue records he came to know regarding alleged gift deed. It was therefore the case of the plaintiff that he was required to file said suit. It was the case of the defendant that the gift deed was executed by the plaintiff who was his younger brother as he felt indebted to the defendant since the defendant had helped him in financial and other matters. It was further case of the defendant that the gift deed was scribed as dictated by the plaintiff, the stamp paper etc. was purchased by him, as such it was a valid gift deed. The learned trial Court after appreciation of the evidence held that the gift deed in question was not executed by the plaintiff and as such decreed the suit, thereby cancelling the said deed, declaring the plaintiff to be the owner and granting the perpetual injunction as prayed for. As aforesaid an appeal preferred there against, came to be dismissed by the learned District Judge. Being aggrieved thereby the present appeal is filed.

3. Smt. Kanade, learned counsel holding for Mr. Godbole, learned advocate for the appellant submits that both the courts below have failed to appreciate the issue in correct perspective. Learned counsel submits that since the plaintiff himself had admitted the signature on the gift deed, in view of proviso to section 68 of the Indian Evidence Act, it was not necessary to examine the attesting witness. Learned counsel in this respect relies on a judgment of the Apex Court in the case of (i) M. L. Abdul Jabbar Sahib Vs. M. V. Venkata Sastri & Ors., 1969(1) SCC 573, (ii) N. Kamalam & Anr. Vs. Ayyasamy & Anr., 2001(7) SCC 503.

4. Smt. Kanade, learned counsel further submits that the so called denials by the plaintiff regarding execution of gift deed were vague denials and as such could not have been taken into consideration by the courts below. She submits that unless the denials are express and specific no value could be attached to the same. Learned counsel further submits that when the execution of the document is not specifically denied it is not necessary for the parties to prove the document by examining an attesting witness. Reliance in this respect is placed on following judgments (i) Nainsukhdas Vs. Gowardhandas AIR 1948 Nag. 110 (ii) K. Narasimhappa Vs. Lakkanna, AIR 1959 Mys. 148, (iii) Kadiya Umma Vs. Mayankutty, AIR 1992 Ker. 261 and (iv) Engineers Corpn. Pvt. Ltd. Vs. W.B. Financial Corpn., AIR 1986 Cal. 132.

5. Learned counsel further submits that the Courts below have also failed to take into consideration the evidence of the scribe Vitthal who has specifically stated that the plaintiff had dictated the gift deed. It is submitted that when the material evidence on record is not properly considered, it would be a "substantive question of law" and an interference would be permissible under section 100 of the Code of Civil Procedure.

6. Learned counsel also submits that the question as to whether there is denial or not cannot be considered by the Court in a causal manner and the said aspect is required to be decided on consideration of the evidence. It is submitted that if the evidence was correctly appreciated, the finding that there was a denial, would not have been arrived at. Reliance in this respect is placed on judgment in the case of Rosammal Issetheenammal Fernandez (dead) by LRs & Ors. Vs. Joosa Mariyan Fernandez & Ors., (2000)7 SCC 189 : [2000(4) ALL MR (S.C.) 587]. Learned counsel further submits that the allegation of fraud is required to be proved beyond reasonable doubt even in civil cases and in this respect reliance is placed on a judgment of the Apex Court in the case of Union of India Vs. M/s. Chaturbhai M. Patel & Co., (1976)1 SCC 747. Learned counsel further submits that the allegation of fraud having not been proved, the finding of the learned trial Court that the suit was within limitation is not sustainable in law.

7. Learned counsel further submits that the question of possession has also not been correctly considered by the courts below and therefore the finding in respect thereof, is liable to be set aside. Reliance is placed on a judgment of the Apex Court in the case of Smt. Chandrakantaben w/o. Jayantilal Bapalal Modi Vs. Vadilal Bapalal Modi & Ors., (1989)2 SCC 630.

8. Mr.Sathaye, learned counsel appearing on behalf of respondent on the contrary submits that the fact regarding execution of gift deed was specifically denied by the plaintiff not only in his pleadings but also in his evidence. He submits that in view of the specific denial, it was necessary for the defendant to have examined the attesting witness. It is submitted that on failure to do so, the courts below have correctly come to the conclusion that the defendant has failed to prove the gift deed. Learned counsel in this respect relies on the following reported judgments (i) Smt. Nishamani Singh Vs. Nishamani Dibya & Ors., AIR 2003 Orissa 123, (ii) Brij Mohan Bakhshi Vs. Amar Nath Bakhshi & Ors., AIR 1980 J & K 54 and (iii) Manohar Lal Vs. Smt. Rajeshwari Devi & Anr., AIR 1977 All. 36.

9. Learned counsel for the respondent further submits that unless the attesting witness is examined, the gift deed in question cannot be proved. He submits that in view of the provisions of section 68 unless an attesting witness is examined, proof of execution of document cannot be inferred. He relies on a judgment of the Apex Court in that regard in the case of (i) Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, AIR 2003 SC 761 : [2003(2) ALL MR 689 (S.C.)], (ii) Kashibai w/o. Lachiram & Anr. Vs. Parwatibai w/o Lachiram & Ors., 1996(1) Mh.L.J. 1 and (iii) Kannian & Anr. Vs. Sethurama, AIR 2000 SC 3522(1).

10. Learned counsel further submits that admission of signature of a person on the document would not tantamount to an execution of a document and in this respect he relies upon following judgments (i) Gitabai w/o. Sriniwas Vs. Dayaram Shankar & Ors., AIR 1970 Bom. 160, (ii) N. M. Ramachandraiah & Anr. Vs. State of Karnataka & Ors., AIR 2007 Karnataka 164, (iii) Vintha Venkateswara Reddi Vs. Anjamma & Anr., AIR 1966 AP 354 and Re: Kuttadan Velayudhan & Ors., AIR 2001 Kerala 123. Learned counsel for the respondent further submits that finding as to perpetration of a fraud being finding of fact, High Court cannot interfere with the same in second appeal. Reliance in this respect is placed on a judgment of the Apex Court in the case of Karbalai Begum Vs. Mohd. Sayeed & Anr., AIR 1981 SC 77.

11. He further submits that the circumstances that though the alleged deed is executed in 1978, no steps are taken by the appellant till 1988, for correcting the revenue record or any other steps, would itself establish that the gift deed was not a genuine gift deed. In so far as the contention of the appellant regarding the suit being beyond limitation is concerned, learned counsel submits that since the fact regarding the alleged execution of sale deed, came to be noticed by the applicant only in September, 1988, when he received the notice from Talathi the suit as filed was within limitation and the Courts below have correctly arrived at finding with respect thereto.

12. For appreciating rival submissions and deciding the appeal it will be necessary to consider as to whether it was necessary for the defendant to have examined the attesting witness for proving the gift deed and as to whether the suit as filed was within limitation.

Section 68 of the Evidence Act, 1872 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 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.]"

From perusal of the said section it will be revealed that if a document is required by law to be attested, it cannot be used as evidence until one attesting witness, at least has been called for the purpose of proving the execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. The proviso thereto provides that it shall not be necessary to call an attesting witness in proof of the execution of the said document not being a will, which has been registered in accordance with provisions of the Indian Registration Act, 1908, unless its execution by the person, by whom it purports to have been executed is specifically denied.

13. It is strenuous contention of the appellant that since the signature was admitted by the plaintiff and there was no specific denial, it was not necessary to prove the said gift deed by examining the attesting witness. Per contra, it is contended that since there was specific denial, unless the attesting witness was examined the said document could not have been proved. To appreciate rival submissions, it will be necessary to refer to certain averments made in the plaint. In para 6 of the plaint it has been specifically stated as under:

"lnjP;k lqPkuki=kRk uEkwn ks½Èe^ce²f Okknhus nkO;kRkhYk fEkGdRk ^fRkOkknhLk dËkhgh c{khLk fnYksYkh uOgRkh o ukgh-"

In para 7 it is further stated that:

"Okj µ|J½Èe^ce²f nkO;kRkhYk fEkGdRk Okknhus çfRkOkknhYkk dËkhgh c{khLk fnYksYkh uOgRkh o ukgh-"

From the perusal of evidence of the plaintiff it will be clearly seen that the plaintiff has unequivocally stated that he is not admitting the gift deed. He has also clearly stated that he has not executed the gift deed, in favour the defendant. He has further stated that he had signed the documents on the say of the defendant as the defendant informed him that execution of the said document was necessary for obtaining a loan. Learned Single Judge of this Court in the case of Gitabai's case (supra) has observed thus:

"6. ...... ....... ....... ....... Dayaram, it appears having been shown the batai patra, has admitted that the signature appeared to be of Uttam. But this admission is not tantamount to saying that Dayaram admitted that Uttam had executed the batai patra. It is one thing to admit the signature of a person on a document and quite another thing which has different legal implications to admit that person whose signature is identified by the deponent has executed the document. Execution of a document is an act importing legal implications. That was not the question put to Dayaram and that was not the answer given by Dayarm. The inference drawn by the learned Additional Tahsildar therefore is wholly unwarranted."

The learned Single Judge of Karnataka High Court in N. M. Ramachandraiah's case (supra) after considering various judgments on the issue has observed thus:

"15. Therefore, the law is well settled. Execution of a document does not mean merely signing, but signing by way of assent to the terms of the contract embodied in the document. Execution consists in signing a document written out and read over and understood, and does not consist of merely signing a name upon a blank sheet of paper. It is as solemn act of the executant who must own up the recitals in the instrument and there must be clear evidence that he put the signature after knowing the contents of document fully. To be executed, a document must be in existence; where there is no document in existence there cannot be execution. Mere proof or admission that a person's signature appears on a document cannot by itself amount to execution of a document. Registration does not dispense with the necessity of proof of execution when the same is denied. Thus, execution of document is not mere signing of it."

The Andhra Pradesh High Court also, in its judgment in Vintha Venkateswara Reddi's case (supra) has held that merely speaking to signatures on papers would not amount to admission of execution of the document. It has further been held that the execution must and does imply that the recitals in the document executed were known to the another who signed and that in approval thereof he had affixed his signature thereto. Similar view has been taken by the Kerala High Court in the case of Re: Kuttadan Velayudhan (supra). The facts in the present case are almost identical with the facts before the Orissa High Court in the case of Smt. Nishamani Singh (supra). In the said case also donor had specifically denied the execution of gift deed. It was pleaded that the donee had taken signature on documents, after giving her understanding that it was merely a power of attorney for managing her properties. It was contended therein, that it was not conscious execution of gift deed. In the said case also valid attestation was not proved. Learned Judge held that, merely because donor had admitted the signature, did not mean that the donor had also admitted execution of gift deed. Similar view has also been taken by the Jammu & Kashmir High Court in the case of Brij Mohan Bakhshi (supra) so also by the Allahabad High Court in the case of Manohar Lal (supra).

14. The contention of the appellant that since the scribe was examined it was not necessary to examine the attesting witness is also without substance. The Apex Court in the case of Kannian & Anr. (supra) has held that the scribe cannot be regarded as an attesting witness. A similar view has also been taken by the Apex Court in the case of N. Kamalam & Anr. (supra)

15. The Apex Court in the case of Kashibai w/o. Lachiram (supra) has held that:

"Section 68 of Evidence Act relates to the proof of execution of document required by law to be attested. A deed of will is one of such documents which necessarily require by law to be attested. Section 68 of the Evidence Act contemplates that 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. A reading of section 68 will show that 'attestation' and 'execution' are two different acts one following the other. There can be no valid execution of a document which under the law is required to be attested without the proof of its due attestation and if due attestation is also not proved, the fact of execution is of no avail."

It is thus a settled legal position that merely admitting signature on the document does not amount to admission of execution of a document. As already discussed herein above it can be found that both the courts trial as well as appellate courts have concurrently held that there has been specific denial regarding execution of the gift deed by the plaintiff. Though aware of the limitation of this Court while exercising jurisdiction under section 100 that it is not permissible to re-appreciate the evidence, I have referred to certain averments in the plaint and the evidence of the plaintiff which clearly show that the plaintiff has specifically denied the execution of the gift deed. The plaintiff in the pleadings so also in his deposition has clearly stated that he was told by his brother that the said documents were required to be executed for the purpose of obtaining loan and that he was made to sign said documents by giving said impression. He has categorically stated that he is an illiterate person, whereas the defendant is an educated officer, who at the relevant time was Tahsildar. He has further stated that the contents of documents were not read over to him. In view of specific denial on the part of the respondent-plaintiff, it was necessary for the defendant to have examined at least one attesting witness to prove execution of the said gift deed. The judgment of the Apex Court in the case of Rosammal [2000(4) ALL MR (S.C.) 587] (supra) which is relied upon on behalf of the appellant, in my considered view, would rather support the case of the plaintiff than the defendant. The Apex Court in para 7 of its judgment observed thus:

"7. We find that High Court committed error by drawing such inference. In considering this question, whether there is any denial or not, it should not be casually considered as such finding has very important bearing on the admissibility of a document which has important bearing on the rights of both the parties. In fact the very finding of the High Court, "it is difficult to infer a specific denial of the execution of the document", shows uncertainty and vagueness in drawing such inference. In considering applicability of proviso to section 68 of the finding should be clearly specific and not vaguely or negatively drawn. It must also take into consideration the pleadings of the parties which has not been done in this case. Pleading is the first stage where a party takes up its stand in respect of facts which they plead. In the present case, we find that the relevant part of the pleading is recorded in the judgment of the trial Court dated 17.8.1977 which is the judgment prior to the remand."

In the present case, in the pleadings the plaintiff has specifically denied execution of gift deed. It is his specific case, that it was fraudulently obtained by the defendant who was his elder brother, on giving false impression that the execution of documents was necessary for obtaining loan. Therefore I am of the considered view that in the absence of examining any of the attesting witnesses by the defendant no error could be found with the findings of fact recorded by both the courts below.

16. In so far as reliance placed by the learned counsel for the respondent on the judgment of the Apex Court in the case of M. L. Abdul Jabbar Sahib (supra) is concerned, the said judgment, would be of no assistance to the present appellant, in as much as in the said case, the Apex Court has held that the registering officer puts his signature on the document in discharge of his statutory duty under section 59 of the Indian Registration Act and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature. The said judgment would rather support the case of the plaintiff. It has been further held in the said judgment, that even the scribe cannot be considered as an attesting witness. In the case of N. Kamalam & Anr. (supra) cited by the plaintiff, also it has been held that the scriber cannot take place of an attesting witness. As such the said judgment would also not support the case of the appellant. In so far as the various judgments of Nagpur, Mysore, Kerala, Calcutta so also Bombay High Courts cited by the learned counsel in support of her contention are concerned, there cannot be a dispute with the legal position that the denial has to be specific and not general. However as already discussed herein above, both the courts below upon appreciation of evidence have clearly held that the denial was specific and not general. Not only that, I have also referred herein above to the averment in the plaint and the evidence of the plaintiff in this respect. The Apex Court in the case of Kashibai (supra) has observed thus:

"12. Further, it may not be out of place to mention that sub-section (1) of section 100 of the Code of Civil Procedure explicitly provides that an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. Sub-section (4) of section 100 provides that when the High Court is satisfied that a substantial question of law is involved in any case it shall formulate that question. But surprisingly enough the High Court seems to have ignored these provisions and proposed to re-appreciate the evidence and interfere with the findings of fact without even formulating any question of law. It has been the consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, based on appreciation of the relevant evidence. There is a catena of decisions in support of this view. Having regard to all the facts and circumstances of the present case discussed above, we are satisfied that there was no justification for the High Court to interfere with the well-reasoned findings of the two courts below. Consequently, this appeal must succeed."

In view of the settled law legal position, it would not be permissible for this Court to re-appreciate the evidence, while exercising jurisdiction under section 100 of the Code of Civil Procedure. However apart from that as I have already discussed, the evidence on record clearly reveals that there was a specific denial. In so far as the grievance of the appellant, that the evidence of Vithal has not been properly considered and consideration thereof would have led to opposite conclusion is concerned, I find that, firstly it would not be permissible for this Court to re-appreciate the evidence of said Vithal, the scribe. Apart from that, no error could be found with the findings of the courts below in this regard. The evidence of the said Vithal has been rightly discarded by the Courts below. The said witness who has scribed the document in question in the year 1978, in his deposition on 27.11.1999 i.e. after 13 years stated that the gift deed was written by him as dictated by the plaintiff. It is to be noted that he has admitted that he does not know either of the parties. His evidence therefore does not appear to be natural. In this view of the matter the courts below have rightly disbelieved this witness. No doubt that if the court fails to take into consideration the vital evidence, the consideration of which would have changed the decision, would amount to a substantial question of and interference in the second appeal would be permissible. However, the question as to whether the evidence has been correctly appreciated or not, cannot be gone into in the jurisdiction of this Court under section 100 of Code of Civil Procedure. It is not the case that the Courts below have failed to take into consideration the evidence of this witness and as such reliance placed by the appellant on a judgment of the Apex Court in the case of Ishwar Dass Jain (supra) would also be of no assistance.

17. That leaves me to the next question, as to whether the Courts below erred in holding that the suit was within limitation. It can be seen that the case of the present plaintiff is that for the first time on 14.9.1988, when he received copy of notice from the Talathi, regarding application made by the defendant for correction of revenue records, he came to know, that the plaintiff had fraudulently obtained the signature on the gift deed. It is his specific case, that the signatures were obtained on giving an impression that the said papers were necessary for the purpose of obtaining loan. In this respect the conduct of the parties is also required to be taken into consideration. Though according to the defendant, the gift deed was executed in 1978, he has not taken any steps till 1988, for correcting the entries in the revenue records or any other steps. In this background, the findings recorded by the courts below, that the cause of action would arise, when the plaintiff came to know about the fraud exercised by the defendant i.e. On 14.9.88, and as such suit filed was within limitation, would call for no interference. In so far as the reliance placed by the learned counsel for the appellant on a judgment in the case of Union of India (1976)1 SCC 747 (supra) is concerned, in respect of contention that the fraud must be proved beyond reasonable doubt even in a civil case is concerned, in the said case the plaintiff had filed a suit for damages against the Union of India contending that due to negligence of the railways the identical goods dispatched by the plaintiff did not reach the consignee. The suit was resisted by the defendant on the ground of fraud. The suit was dismissed. In an appeal, the High Court found that the defendant had failed to lead any evidence regarding the fraud and as such allowed the appeal and decreed the suit. The same was confirmed by the Supreme Court. In the present case, both the courts below have on the basis of evidence led before it, have concurrently held that the plaintiff had proved the case of fraud. In that view of the matter, said judgment would not be applicable to the facts of the present case. The Apex Court in the case of Karbalai Begum (supra) in unequivocal terms, has held that the finding as to perpetration of fraud is finding of fact and the High Court should not interfere with the same in second appeal. In that view of the matter the contention in this respect, raised on behalf of the appellant also fails.

18. In the result, appeal fails and is dismissed.

Appeal dismissed.