Specific denial of execution is required under Section 68 of the Evidence Act, and vague or omnibus allegations do not amount to specific denial. Additionally, challenges against the sufficiency of attestation must be raised in the lower courts to be considered.

JUDGMENT :

Sathish Ninan, J.

1. The concurrent dismissal of a suit for partition is assailed by the plaintiff in the suit.

2. The parties are siblings. The plaint schedule consists of two items of properties. Item No. 1 having an extent of 42.40 Ares admittedly belonged to the mother of the parties. Plaint item No. 2 belonged to the father of the parties and was gifted to the mother as per Ext.A3. Thus, both plaint items 1 and 2 belonged to the mother.

3. The claim for partition was challenged by the defendants setting up Ext.A1 Gift Deed executed by the mother in their favour.

4. The courts below held that without seeking to set aside Ext.A1 or a declaration that the same is void, the mere suit for partition is not maintainable. The decree was confirmed in appeal.

5. Heard learned counsel Sri. Arun V.G. on behalf of the appellant-plaintiff and Sri. Saji Issac on behalf of the respondents-defendants on the following substantial questions of law:

(a) Were the courts below justified in relying on Ext.A1 Gift Deed without the same being proved as mandated under Section 68 of the Evidence Act?

(b) Is Ext.A1 Gift Deed bad for want of proper attestation as required under law?

6. Section 68 of the Evidence Act mandates that if the execution of the gift deed is denied, then it shall be proved by examining at least one attesting witness. If the execution is not proved, then Ext.A1 will not be of any avail to defend the claim for partition. It would be apposite to refer to Section 68 of the Evidence Act which reads thus:

“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 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.”

7. Admittedly none of the attesting witnesses to Ext.A1 were examined. The question essentially is, whether the execution of Ext.A1 has been specifically denied by the plaintiff making it imperative for the defendants to prove execution in terms of Section 68 of the Evidence Act. The plea against Ext.A1 gift is found in paragraph 5 of the plaint. It reads thus:

“5. On getting information about the settlement deed the plaintiff enquired about the same before the S.R.O. Mararikkulam and obtained a certified copy of the same on 22.11.2006. The plaintiff here in disputing the validity and genuineness of the alleged settlement deed. The mother of the plaintiff herein, who is the executants of the said deed severely ill due to old age and other ailments at the time of execution of the alleged settlement deed. She was not capable of exercising her free will or volition exercising fraud coercion and undue influence, the defendants with their allies either caused the executants to forcibly put some signature in some document or they themselves created the document forging her signature and got it registered. The alleged settlement deed is vitiated by coercion, fraud and undue influence and void ab initio. During the period of the execution of the alleged settlement deed, the executants was not in state of mind or health to know the nature and contents of any documents or execute any document or subscribe her signature. The said settlement deed not come into force at any time and the parties to the settlement deed not acted upon the same and they did not effected any mutation regarding the properties. The said settlement deed is void abinitio and is not binding upon the plaintiff and it is only to be ignored.”

According to the learned counsel for the appellant,