Must an attesting witness be called to prove a registered document other than a Will where execution is not specifically denied?

This Appeal Suit is directed against the judgment and decree, dated 28.02.2018 passed in O.S.No.65 of 2009 on the file of the Fast Track Mahila Court, Dindigul.

The appellant is the 1st defendant in O.S.No.65 of 2009 on the file of the Fast Track Mahila Court, Dindigul. The 1st respondent is the plaintiff and the respondents 2 to 4 are the defendants 2 to 4 in that suit. The 1st respondent/plaintiff filed the suit for partition seeking 1/2 share in the suit property.

For the sake of convenience, the parties are referred to as per their rank before the trial Court.

The brief facts are as below:

The trial Court framed the following issues upon the pleadings of both parties. 1. Whether Dr.Seenivasan executed a gift deed dated 04.05.1981 in respect of the 1 st item in favour of the 1st defendant? 2. Whether it is correct that the 2 nd defendant purchased the suit 2nd item from out of her income in the name of her husband Dr.Seenivasan in 01.05.1961 and whether Dr.Seenivasan executed a release deed dated 31.10.1962 in favour of his wife, the 2 nd defendant, Janakiammal? 3. Whether it is true that Dr.Seenivasan executed a Will prior to his death? 4. Whether the plaintiff has the right to claim a ½ share in the suit properties? 5. Whether the plaintiff is entitled to the relief of partition?

Whether the plaintiff is entitled to mesne profits?

To what other relief is the plaintiff entitled to? 6. During trial, the plaintiff examined herself as P.W.1 and marked exhibits as Ex.A.1 to Ex.A.3. On the defendants' side, 1st defendant was examined as D.W.1 and one Arunagiri was examined as D.W.2. and Ex.B.1 to Ex.B.14 were marked. 7. On appreciation of evidence and the submissions made on behalf of the parties, the trial Court has held that the plaintiff is entitled to 1/2 share in the suit property. Accordingly, the trial Court has passed a preliminary decree in favour of the plaintiff in respect of 1/2 share in the suit properties by its judgment and decree, dated 28.02.2018.

Aggrieved by the judgment and decree of the trial Court, dated 28.02.2018, the 1st defendant has preferred this appeal.

Both parties have made lengthy arguments in respect of their cases. Both parties have also filed their respective written arguments along with rulings.

The learned counsel for the appellant/1st defendant has placed arguments that the plaintiff and the 1st defendant are daughters of Dr.Seenivasan and the 2nd defendant, Janakiammal. The plaintiff is the elder daughter and is residing in USA. The 1st defendant is the younger daughter. After filing of the suit, the 2nd defendant died on 16.10.2009. The father of parties died on 16.07.2006. The plaintiff claims share on the grounds that the suit properties consisting of two items were originally purchased by Dr.Seenivasan, who expressed his last wish to the plaintiff when she came to Tamil Nadu in 2003 that he wanted to give the family house in the 1st item to the plaintiff and the vacant site situated on the eastern side of the family house to the 1st defendant and that both the plaintiff and the 1st defendant would divide the rental income derived from the 2nd item. The plaintiff has also claimed that the last wish was noted in a diary. There was no such last wish expressed by Dr.Seeinivsan and the alleged last wish has no legal standing and no legal force at all. There is no document produced by the plaintiff to show that the plaintiff came down to Tamil Nadu from USA. The trial Court has also concluded that the plaintiff has not proved the last wish since there was no witness examined and that unless the last wish was reduced into a Will and in the absence of such a Will, the alleged last wish is not deemed as having any effect.

The learned counsel for the appellant has further argued that Dr.Seenivasan purchased the 1st item of suit property on 01.03.1966 as per the registered sale deed Ex.A.1. So, it is his self acquired property. He executed a registered gift deed under Ex.B.1 on 02.05.1981 in favour of the 1st defendant and the said gift was informed to the Income Tax Authorities and wealth tax was remitted. The 1st defendant has produced a registered gift deed as Ex.B.1 and an assessment order from the Income Tax Department as Ex.B.2. Subsequently, a mutation was also effected in favour of the 1st defendant. The 1st defendant has been in possession and enjoyment of the 1st item by paying relevant taxes. Ex.B.1 is a registered document from the concerned Sub Registrar office and the transfer by the donor has been registered in the presence of two witnesses. Hence, Ex.B.1 is valid as per the provision of Sections 122 and 123 of the Transfer of Property Act.

The learned counsel for the appellant further argued that the 2 nd item, as far as its large extent is concerned, the 2nd defendant had purchased the 2nd item out of her income in the name of her husband, Dr.Seenivasan, as a name lender alone. Dr.Seenivasan had executed a registered release deed on 31.10.1962, stating the mode of purchase by the 2 nd defendant and released his name lending. The 1st defendant has marked the said release deed as Ex.B.13. The 2nd defendant had sold few portion of 2 nd item to one G.R.Sekar and G.Thilagaraj on 30.04.1979. The 2nd defendant had also sold 110 sq.ft in 2nd item in favour of the 1 st defendant on 11.12.2000 under a registered sale deed. Thereafter, the 2 nd defendant had executed gift deed in respect of remaining portion of the 2 nd item in favour of the 1st defendant. The 1st defendant has produced the gift deed as Ex.B.11. As per Ex.A.2, the 2nd item with larger extent is 9656 sq.ft. However, Ex.B.12 gift deed shows 4700 sq.ft. The plaintiff has mentioned the 2nd item after deducting the encumbrance made by the 2 nd defendant, i.e., only 4700 sq.ft. As per Ex.A.2, the east-west length is 142 feet, but the plaintiff described the east-west length as 75 feet since in Ex.B.2 - Settlement deed, the east-west length is mentioned as 75 feet. Ex.B.2 and Ex.B.11 were executed as per Section 17 of the Registration Act and in accordance with Section 123 of the Transfer of Property Act, they were proved before the trial Court. So, the plaintiff admitted the conveyance of portions of the 2nd item with a larger extent, which substantiated that the 2 nd item is absolute property of the 2nd defendant. Hence, the plaintiff had knowledge about the encumbrances made by the 2nd defendant. The plaintiff has not challenged those conveyances even after they pleaded in the written statement. Section 90 of the Evidence Act casts a presumption in favour of the 1st defendant. The plaintiff has not pleaded that the gift deeds are fraudulently created or forged. Therefore, without challenging the deeds, the plaintiff cannot claim partition that too partially.

The learned counsel for the appellant further argued that the trial Court has erred and cautiously framed issues to testify only with regard to Ex.B.2 without touching the Ex.B.8, Ex.B.9, Ex.B.11 and Ex.B.12 and that the trial Court has wrongly discussed in its judgment in paragraph Nos.13 and 22 that the 1st defendant has not examined any attesting witness. Once execution is admitted, no witness needs to be examined as per the provisions of Section 68 of the Indian Evidence Act. The plaintiff has not specifically denied the Gift Deed - Ex.B11 executed by the mother, 2 nd defendant herein, in favour of the 1st defendant. Therefore, the 1 st defendant has clearly proved her case before the trial Court, but the Court answered issues 1 to 3 jointly, which is not correct in the eye of law. The plaintiff is not entitled to any share in the suit properties. Therefore, the suit for partition is liable to be dismissed. The appeal may be allowed.

Per contra, the learned counsel for the 1st respondent/plaintiff states that Dr.Seenivasan, the father of the plaintiff, purchased the suit properties in the years 1961 and 1966. The plaintiff married and has been working and living in USA. The 1st defendant was with the mother, the 2nd defendant herein. The plaintiff’s father expressed his last wish and the relief is not based solely on his wish. Dr.Seenivasan died on 16.07.2006 and thereafter, the plaintiff filed the suit on 11.08.2009. The 1st defendant claimed in respect of the 1st item that Dr.Seeinivasan executed a settlement deed on 02.05.1981. The 1st respondent/plaintiff specifically denied in her evidence that it is false to say that her father executed a gift deed in favour of the 1 st defendant and even if it was executed, it is invalid. The 1st defendant’s argument that the document was not denied by the plaintiff by filing a reply statement is legally fallacious. There is no law mandating a plaintiff to file a reply statement. Moreover, reply statements/additional statements are only subsequential pleadings, which can be filed only with the leave of the Court. Non-filing of any reply statement has no legal consequences adverse to the plaintiff as laid down by the Hon’ble Supreme Court in 2009 (1) SCC 354 (K.Laxmanan vs. Thekkayil Padmini and Ors.). In this case, the 1 st defendant has not produced the original gift deed, she only marked the certified copy as Ex.B.1 without any explanation for the non production of the original. The certified copy of the settlement deed was filed in the Court 6 years after the filing of the suit. The said gift deed was not filed along with the written statement. When there is a specific denial, the 1st defendant has to prove the document. No witness was examined to prove Ex.B.1. Admissibility of document into evidence and proof of genuineness of such document are different issues. Mere production of a document will not amount to proof is a settled principle by the Hon’ble Apex Court in (1972) 4 SCC 562 (Sait Tarajee Khimchand and Ors. vs. Yelamarti Satyam Alias Satteyya and Ors.); (2008) 4 SCC 530 (Thiruvengadam Pillai vs. Navaneethammal and Anr.); (2008) 3 SCC 745 (Benjamin vs. State Represented by Inspector of Police); AIR 1975 Mad 257 (Karuppana Thevar (died) and Ors. vs. Rajagopala Thevar and Ors.) and 2010 4 LW 148 (Shanmugam vs. Elumalai Gounder & Ors.). There is no suggestion made by the 1st defendant to the plaintiff that the plaintiff was already aware of Ex.B.1 gift. The Ex.B.2 assessment is only in respect of gift tax related to the year 1982-83, the gift tax was paid by Dr.Seeinivasan, as he was an income tax assessee, whereas the 1st defendant is not an assessee. If the gift was truly acted upon, Ex.B.2 proceedings would have been different. There is no valid evidence to prove that Ex.B.1 was true, valid and acted upon.

The learned counsel for the 1st respondent/plaintiff further submitted that the 2nd item with a larger extent was purchased by Dr.Seenivasan under Ex.A.1, dated 01.03.1966. The 1st defendant admitted the purchase, but claimed that it was purchased by benami in his name by utilizing the funds of the 2nd defendant and that it was released by Dr.Seenivasan under Ex.B.13, dated 31.10.1962. Later, the 2nd defendant executed a gift deed in favour of the 1st defendant after making some alienations. No ingredients required to establish a case of benami are pleaded by the 1st defendant. There is no material produced by the 2 nd defendant to prove that the 2nd item was self-acquired property of the 2 nd defendant. Though the 2nd defendant was alive at the time of filing the suit and after service of notice, the 2nd defendant has not filed any written statement disputing the plaintiff’s claim. The 2nd defendant died on 16.10.2009, the 1st defendant filed a written statement on 21.10.2009 within 5 days of the mother’s death, which revealed that the mother was unwilling to join with the 1st defendant. Though the defendant produced Ex.B.13 release deed executed by Dr.Seenivasan, it has no evidentiary value, while perusing the recitals of the document, even invoking Section 90 of the Evidence Act. The recitals in Ex.A.2 and Ex.B.13 are contradictory. The father paid the sale consideration under Ex.A.2. The alienations done subsequently by the mother are admittedly with the approval of the father and till the father’s death, the plaintiff or 1st defendant had no right. Therefore, the 2nd item, as available on the death of the father, was described in the suit. The 1st defendant has not taken a plea of partial partition. It is not the 1st defendant’s case that the plaintiff was fully aware of the release deed subsequent to alienation in 1979 and 2000, even no suggestion was put forward to P.W.1 at the time of her cross examination. Moreover, the original gift deed was not produced, only a certified copy of the gift deed was marked as Ex.B.12. Therefore, the argument put forth by the plaintiff in respect of Ex.B.1 would also apply with equal force to Ex.B.12.

The learned counsel for the 1st respondent/plaintiff has further argued that though the 1st defendant examined D.W.2 as an attesting witness, he was not able to identify the signature of the 2nd defendant Janakiammal. Therefore, the very requirement of attestation is not satisfied by the defendants' side. DW2 specifically deposed that he was called upon to sign the document after the full preparation of the document. So, he went to sign the document and that is not attestation under law as mentioned in Section 3 of the Transfer of Property Act or in Section 63(c) of the Indian Succession Act. A mere general statement about attestation without even identifying the signatures does not satisfy the requirement under law, which is settled by this Court in 1997 3 LW 673 (Govindan Chettiar (Died) vs. Akilandam alias Seethalakshmi and 24 Ors.). The 1st respondent/plaintiff was living in USA, while the mother was under the complete control and custody of the 1st defendant after the death of the father. There is evidence that the plaintiff and the 1st defendant were having a good relationship and there is no evidence of enmity between the plaintiff and the defendants & father. There is no reason stated as to why the 1st respondent/plaintiff was completely ignored from giving any share in the suit properties and why the 1st respondent was given all the properties. These are not explained by the 1st defendant. Even though the 1st defendant admitted to the execution of the Will by her father, she purposely suppressed the vital document. When the document itself was denied, the 1st defendant had to prove the same. But, in this case, the 1st defendant has not proved Ex.B.12 as required by law. Therefore, an adverse inference has to be drawn against the 1st defendant, which was rightly drawn by the trial Court. Hence, the 1st defendant has not proved Ex.B.1 and Ex.B.12 and thereby she is not entitled to those properties absolutely. The Hon’ble Supreme Court has held in AIR 2000 SC 1203 (Subhra Mukherjee & Anr. vs. Bharat Coking Coal Ltd. & Ors.) that only when a transaction in question is proved to be bona fide and genuine, the burden to dislodge it by proving it as sham and fictitious shifts to the respondent and when the circumstances of the case and the evidence on record clearly pointed out that the transaction is not bona fide and genuine, it is unnecessary for the Court to find out whether the respondent led any evidence to show that the transaction is sham, bogus or fictitious. In this case, the appellant/1st defendant failed to prove Ex.B.1 and Ex.B.12 as per law, therefore, there is no need for interference with the decision of the trial Court, and the appeal may be dismissed.

The point for consideration in this appeal are: 1. Whether the Ex.B.1 and Ex.B.12 registered settlement deeds are true and valid one in the eye of law? 2. Whether the appeal is to be allowed?

Points 1 and 2: On perusal of the appeal records, lower Court records and on consideration of arguments advanced by both sides, the suit properties consisting of two items were purchased in the name of Dr.Seenivasan, who is the father of the plaintiff and the 1st defendant, through the 2 nd defendant, Janakiammal. The plaintiff and the 1st defendant are sisters. Dr.Seenivasan died on 16.07.2006. The 2nd defendant died on 16.10.2009, i.e., after filing of the suit. There is a strong dispute only regarding the settlement deeds Ex.B.1, dated 02.05.1981 and Ex.B.12, dated 01.06.2009. Ex.B.1 is said to have been executed by Dr.Seenivasan in favour of the 1 st defendant. Ex.B.12 is said to have been executed by the 2nd defendant in favour of the 1st defendant. Though the 1st defendant has marked certified copies of settlement deeds as Ex.B.1 and Ex.B.12, subsequently, the originals of the same were replaced on 06.04.2017. The trial Court delivered judgment on 28.02.2018. Until delivery of the judgment by the trial Court, the plaintiff has not raised any objection or question regarding the original deed. The settlement deeds are registered one. It was not disputed.

It is the case of the plaintiff that her father has not executed Ex.B.1 - Settlement deed on 04.05.1981 and it is not true and valid and that no witness was examined on the 1st defendant's side to prove the same. It is the definite case of the 1st defendant that the 1st defendant specifically pleaded in her written statement about the execution of Ex.B.1 settlement deed, but the plaintiff has not denied it by filing any reply statement. The learned counsel submitted that there is no law mandating a plaintiff to file a reply statement, which is only subsequential pleadings. On perusal of the records, the plaintiff denied Ex.B.1 at the time of evidence only. It is a settled principle that without pleading, the evidence could not have any valid consideration in respect of immovable property. Moreover, the plaintiff has not taken any plea of fraud upon Ex.B.1. From records, it is clear that Dr.Seenivasan, the father of plaintiff and 1st defendant, has purchased the 1 st item on 01.03.1966 by virtue of Ex.A.1. Then, he executed the registered Ex.B.1 settlement deed in favour of the 1st defendant on 02.05.1981, i.e. after more than 15 years. The plaintiff questioned Ex.B.1 in 2009. Prior to that, there was no objection by the plaintiff regarding Ex.B.1. Hence, the learned counsel submits that the execution of the settlement deed is accepted and so there is no specific denial that has some force and the same cannot be brushed aside. If it is so, the settlement deed being a registered one is proved under the proviso of Section 68 of the Indian Evidence Act.

The material records of this case reveal that the disputed document is registered one and therefore, as guided by the settled legal principle that a document is presumed to be genuine if the same is registered, as held by the Hon’ble Supreme Court in Prem Singh and Ors. v. Birbal and Ors. The relevant portion of the said decision reads as follows:

The Division Bench of the Madras High Court in S.Shanmuga Sundaram /v/ S.Mohan case reported in 2023 (1) CTC 30 clearly held, based on settled principles by the Hon’ble Supreme Court, that the specific denial must relate to the execution of the document. Therefore, this Court is of the considered view that there is no specific denial against the Ex.B.1 - settlement deed, dated 02.05.1981, executed by Dr.Seenivasan in favour of his daughter, the 1st defendant herein. Ex.B.2 - Assessment Order issued by the Income Tax Department has also strengthened the execution of the settlement deed by Dr.Seenivasan.

Section 68 of the Indian Evidence Act is extracted hereunder:

There is a difference between void and invalid documents. There are sufficient materials to prove the existence of the original Ex.B.1 settlement deed and there is no specific denial of execution of the settlement by Dr.Seenivasan, except that it is not true. Even the plaintiff has not chosen to seek the relief as to the cancellation of Ex.B.1 when she came to know that it was not true. The plaintiff's inaction drawn an adverse presumption against her own case. Therefore, this Court of the view that the execution of the settlement deed by Dr.Seenivasan was not specifically denied and so, the 1st defendant is entitled to invoke the provisions of Section 68 of the Indian Evidence Act. The trial Court has not properly appreciated the evidence adduced in the case on hand and hence, the conclusion of the trial Court in respect of Ex.B.1 - settlement deed is incorrect.

In respect of the 2nd item, the plaintiff’s case is that Dr.Seenivasan purchased the 2nd item of suit property under Ex.A.2. The 1st defendant contends that her mother, the 2nd defendant herein, purchased the 2nd item out of her income in the name of her husband as a name lender. The 1st defendant has marked Ex.B.13, which is a registered release deed executed by Dr.Seenivasan. On perusal of records, Ex.A.2 is dated 01.05.1961 and Ex.B.13 is dated 31.10.1962. The contents of Ex.A.2 relate to the clearance of debts of the vendor therein. The contents of Ex.B.13 are that the debts were cleared by the amount derived from the Stridhana articles of the 2nd defendant and that the name of Dr.Seenivasan was utilized as the name of the lender only. The contents of Ex.B.13 are as follows:

At this juncture, the 1st defendant’s case is that her mother/ 2 nd defendant, being the absolute owner of the 2nd item of suit property, sold out one portion of the 2nd item to one G.R.Sekar under Ex.B.8 and another portion to one G.Thilagaraj under Ex.B.9 on 30.04.1979. It is her further case that the 2nd defendant has also sold out 110 sq.ft. to the 1st defendant by executing Ex.B.11 - sale deed on 11.12.2000 and the remaining portion of the 2nd item was gifted to the 1st defendant by way of Ex.B.12, registered settlement deed, dated 01.06.2009. The plaintiff admits that she has mentioned the 2nd item of suit property as shown in Ex.B.12 settlement deed. While the plaintiff claims that her father purchased the 2nd item under Ex.A.2. Ex.A.2 is related to 9656 sq.ft. Now the 2nd item measures 4700 sq.ft. Hence, this Court is of the considered view that the plaintiff has not added the 2nd item in its larger extent and has not fully added it as a suit property. Therefore, it is presumed that the plaintiff admitted the alienation made by the 2nd defendant under Ex.B.8, Ex.B.9 and Ex.B.11. If it is so, without challenging those documents, the plaintiff cannot seek partial partition as regards the 2nd item as rightly argued by the learned counsel for the 1st defendant. Hence, there is no specific denial by the plaintiff with regard to Ex.B.12 registered settlement deed. Therefore, the discussion made in earlier paras by this Court will also apply to Ex.B.12 also.

The specific argument of the 1st defendant's side is that until the settlement deeds and other alienations of the 2nd defendant are cancelled or set aside, the plaintiff cannot seek for partition as the deeds are the main obstacle to the plaintiff having some valid consideration. On perusal of records, the 1st defendant in her written statement clearly pleaded that the 2 nd item was purchased by her mother in the name of her father as a name lender and the release executed by her father in favour of 2nd defendant, who subsequently sold out some portions under Ex.B.8,9 and Ex.B.11 after she became the absolute owner of 2nd item. The father of both signed as a witness in Ex.B.8, Ex.B.9 and Ex.B.11. Apart from that, the 1st defendant has examined D.W.2 to prove the execution of those deeds. After that, the revenue records were mutated in the name of the 1st defendant, as seen from the receipts produced by the 1st defendant. Hence, the execution was accepted and the settlements were acted upon. The conditions were properly complied with as per Sections 122, 123 and 125 of the Transfer of Property Act.

The plaintiff’s father and paternal uncle signed as witnesses in the deeds, and the same was suggested to the plaintiff during her cross examination. Hence, the plaintiff, being one of the daughters of Dr.Seenivasan and 2nd defendant, might have known about the execution of settlement deeds and other deeds. Even after filing of the written statement with contents about the execution of the registered settlement deed, the plaintiff has not taken any steps to cancel or set aside the same by way of filing a case before the appropriate forum, much less to add a prayer for the cancellation of the settlement deed in the suit on hand. Moreover, there are other properties available to their family, except the suit property, as seen from the evidence of P.W.1 and D.W.1 and also pleadings that there were some other movable and immovable properties belonging to Dr.Seenivasan. Therefore, the plaintiff cannot seek for partition without setting aside or cancelling the settlement deed as rightly put forth by the 1st defendant as held by the Hon’ble Supreme Court in (1996) 7 Supreme Court Cases 767 in Noorul Hoda /v/ Bibi Raifunnisha and Others case, (stated supra) in which it is held in paragraph No.6 as follows:

The next argument put forth by the plaintiff side is that Ex.B.1 and Ex.B.12 are not valid as the plaintiff, being one of the daughters, was ignored from giving any share in the suit properties. Ex.B.1 and Ex.B.12 are settlement deeds. The plaintiff has always been residing in USA, whereas the 1st defendant has always been living with her parents by taking care of them. So, in the case of settlement, the consideration is mutual love, care, affection and satisfaction, independent and resulting from the preceding facts. Ex.B.1 and Ex.B.12 were executed in favour of the 1st defendant by her father and mother and handed over the same to the 1st defendant, which were accepted by the 1st defendant during the lifetime of her father Dr.Seeinivasan and mother the 2nd defendant. Ex.B.1 was executed on 02.05.1981 and Ex.B.12 was executed on 01.06.2009. The defendant's side documents show that the revenue records regarding the suit properties were mutated in the name of the 1st defendant during the lifetime of her father and mother. Therefore, the 1st defendant proved that Ex.B.1 and Ex.B.12 were acted upon during the lifetime of the executant.

As discussed above, the Ex.B.1 and Ex.B.12 - settlement deeds are proved by the appellant/1st defendant, the trial Court has erred in holding that they are not valid. Though the plaintiff put forth the case of the last wish made by her father, the same cannot have any valid legal force, as correctly observed by the trial Court, and also on the ground that the plaintiff has not produced the diary in which it was noted. And also, the plaintiff submitted that she is not claiming as per the last wish, and she only claims on the death of her father. Moreover, both parties have not produced Will as alleged to have been executed by Dr.Seenivasan. The rulings relied on by the 1st respondent/plaintiff side are not applicable to the facts and circumstances of this case. Therefore, the plaintiff cannot seek partition in respect of the properties covered in Ex.B.1 and Ex.B.12 settlement deeds, as the suit properties are the absolute properties of the 1st defendant as proved by her by adducing acceptable oral and documentary evidence. Considering all these aspects, this Court of the view that the 1st respondent/plaintiff is not entitled to any share in the suit properties. Considering the above facts and circumstances, the judgment and decree of the trial Court are liable to be set aside and the appeal is to be allowed. The point is answered accordingly.

In the result, (i)This Appeal Suit is allowed.