The main legal point established in the judgment is the requirement for a specific denial of execution under the Proviso to S.68 of the Evidence Act and the necessity of delivery of possession for a valid gift.

Defendants 1 to 5 in O.S. No. 51 of 1981 on the file of the Sub 'Court, Manjeri are the appellants. Suit was for partition.

2. Briefly stated, facts which are essential for determination of the above appeal arc as follows: The properties described as Schedule II-B in the plaint originally belonged to one Assankutty. Assankutty died in. 1968 without any male issue. Defendants 1 to 5 arc his daughters and Kathiyakutty Umma was his wife. According to the plaintiffs, defendants 1 to 5, Kathiyakutty and Assankutty's brothers, 1st plaintiff, 10th defendant, 2nd plaintiffs father deceased Mohammed and one Ahammad, father of defendants 11 and 12 are the legal heirs of Assankutty, who are entitled to succeed to the assets of deceased Assankutty. They also alleged that they came to know 'of the execution ofExts.B2and B3 gift deeds in favour of defendants 1 to 5 only through the reply sent by defendants 1 to 5. According to them, during the life time of Assankutty, plaint schedule items were not given possession and till his death, Assankutty was in possession and enjoyment of plaint schedule property and was residing in the building in item 2 of plaint schedule property. They also alleged that the gift deeds did not take effect and they are not binding on them and if any such gift deeds were executed by Assankutty in favour of defendants 1 to 5, it was done under fraud, coercion and undue influence with a view to defeat the legitimate rights of the plaintiffs and other legal representatives.

3. Defendants 1 to 5 in their written statement contended that since items 1 and 2 were gifted to them under Exts. B1 and B3 and they took possession pursuant to those documents, plaintiffs were not entitled to any relief.

4. The trial court found that Exts. B1 and B3 gift deeds were executed by Assankutty, that they were not vitiated by fraud, undue influence or coercion and that therefore the plaintiffs are not entitled to partition. In that view of the matter, the suit was dismissed.

5. On appeal to the District Court, learned District Judge found that execution of gift deeds has not been proved in accordance with the provisions contained in S.68 of Evidence Act. In that view of the matter, the lower appellate court set aside the judgment and decree of the trial court and remanded the matter to consider the other relevant issues such as shares, etc. Aggrieved by the judgment and decree passed by the lower appellate court, the defendants 1 to 5 have filed this CM. Appeal.

6. Sri. V.R. Venkatakrishnan, learned counsel for appellants submitted that in view of Proviso to S.68 of Evidence Act, no formal proof of execution is required in the instant case and therefore the order of remand passed by the court below holding that item 1 is partible is unsustainable in law.

7. S.68 of Evidence Act states 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. However, the proviso to the said Section, which was introduced by Act 31 of 1926 lays down 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 Indian Registration Act, 1908 (Act 16/1908) unless its execution by the person by whom it purports to have been executed is specifically denied.

8. Learned counsel for appellants submitted that there is no specific denial of execution of the document by Assankutty. Learned counsel took me to para.5 of the plaint, which has been relied on by the appellate court and argued that the plea made therein cannot be understood as plea of specific denial. In para.5 of the plaint, it is stated that plaintiffs are not aware of the existence of gift deeds as stated by defendants 1 to 5. It further states tha