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IN THE HIGH COURT OF KERALA AT ERNAKULAM
SATHISH NINAN, J.
Usha Kumari W/o Muraleedharan – Appellant
Versus
Santha Kumari W/o R.P. Haridas – Respondent
R.F.A. No. 323 of 2006
Decided On : 26-06-2023
Indian Evidence Act, 1872 - Section 74, (2), 77 - Civil Rules of Practice, Kerala - Rules 113, 226, 129, 240 - Properties - Decree for partition - Genuineness of Gift Deeds - Preliminary decree in a suit for partition is under challenge by defendant Nos. 3 and 4 - Entire properties of Nanu were not gifted under Exts.B1 to B3.
Findings of the Court:
Documents under consideration are not Will Deeds where any and all suspicious circumstances are required to be dispelled by propounder - Documents in question are Gift Deeds - All that law requires is proof of same in terms of Section 68 of Evidence Act - Its due execution and attestation have been proved by evidence of PW3 - There has been misreading of evidence by trial court - There is no reason to hold against Exts.B1 to B3 Gift Deeds - Finding against said documents, entered into by trial court is liable to be set aside - Exts.B1 to B3 Gift Deeds are upheld - Decree and judgment of trial court will stand modified excluding properties included in Exts.B1 to B3 Gift Deeds as from partition.
Result: Appeal allowed.
The legal reasoning in this case primarily revolves around the admissibility and proof of public documents, specifically Gift Deeds, under the Evidence Act. The court emphasizes that certified copies of public documents, such as pleadings and written statements filed in court, are considered public records and thus fall within the scope of Section 74(2) of the Evidence Act (!) (!) (!) (!) . The court clarifies that pleadings are part of the public records maintained by the court, and as such, they are admissible as public documents, especially when certified copies are obtained in accordance with procedural rules (!) (!) (!) (!) (!) (!) .
The court further discusses that objections to the admissibility of such documents on the basis of mode of proof are procedural and can be waived if not raised at the time of admission (!) (!) . It highlights that the primary issue is whether the secondary evidence, such as certified copies, was properly admitted, and since no objection was raised, the court considers the document admissible (!) .
Regarding the proof of the Gift Deeds themselves, the court notes that under Section 68 of the Evidence Act, due execution must be proved by examining at least one attesting witness. In this case, the attesting witness's testimony supported the due execution and attestation of the Gift Deeds (!) (!) (!) (!) (!) . The court observes that the witnesses' long lapse of time since the execution does not necessarily undermine their credibility, especially since the witnesses testified about the circumstances of execution and identification of signatures (!) (!) (!) (!) (!) .
The court also considers the admission made by the original owner, Nanu, in a previous written statement regarding the execution of the Gift Deeds, which constitutes substantive evidence and supports their genuineness (!) (!) (!) . The fact that the Gift Deeds were executed in a manner consistent with legal requirements, including proper attestation and registration, further strengthens their validity (!) (!) .
Based on this comprehensive evaluation, the court concludes that the Gift Deeds were properly proved and are valid. Consequently, properties covered under these Gift Deeds are excluded from the partition, and only the remaining properties are subject to division (!) (!) . The appeal is allowed, and the trial court’s decree is modified accordingly, upholding the validity of the Gift Deeds and excluding the gifted properties from the partition process.
JUDGMENT :
SATHISH NINAN, J.
1. The preliminary decree in a suit for the partition is under challenge by defendant Nos. 3 and 4.
2. The plaint schedule consists of 20 items of properties. The properties originally belonged to one Nanu under Ext.A1 Partition Deed dated 02.01.1976. Nanu, in his first wife Lakshmi, had five children. One among them viz. Sukumaran is no more. Plaintiffs 1 and 2, and defendants 1 and 5 are the other children. Plaintiffs 3 to 5 are the wife and children of Sukumaran. The second wife of Nanu is one Chella. Defendants 2, 3 and 4 were born to Nanu in Chella. The plaintiffs claim partition.
3. The suit was contested by defendants 3 and 4. According to them, Nanu had executed three Gift Deeds; Ext.B1 Gift Deed in favour of the third defendant, Ext.B2 Gift Deed in favour of the 4th defendant, and Ext.B3 Gift Deed in favour of his wife Chella. Exts. B1 C. R. to B3 Gift Deeds were executed on 22.02.1990, gifting thereunder various items of properties from out of those scheduled in the plaint. It is only the remaining properties that are liable to be partitioned, is the contention.
4. The plaintiffs filed a rejoinder disputing the genuineness of the Gift Deeds.
5. The trial court held against the Gift Deeds and accordingly passed a preliminary decree for partition. The claim for equitable allotment by defendants 6 to 10, who are assignees from the donees under the Gift Deeds, was reserved to be considered in the final decree proceedings.
6. Heard Sri.T.Krishnanunni, learned Senior Counsel for the appellants and learned Senior Counsel Sri.T.Sethumadhavan on behalf of the respondents.
7. On the rival contentions of the parties and having heard the learned senior counsel on either side, the following points arise for determination:
(ii) Have defendants 3 and 4 proved the due execution of Exts.B1 to B3 Gift Deeds?”
8. Before I proceed to discuss on the proof of Exts.B1 to B3 Gift Deeds, it would be appropriate to refer to a litigation that had occurred in the family of Nanu even during his lifetime. It is of significance that the lis was later in point of time to the execution of the Gift Deeds.
9. The present first plaintiff had filed a suit as O.S. 151/90 against Nanu and the other members in the family viz. the parties to the present suit. Nanu was the first defendant therein. That suit was one for partition. Therein the plaintiff claimed that the properties are family properties. Ext.B5 is the plaint and Ext.B6 is the decree therein. Sukumaran, the predecessor of plaintiffs 3 to 5 herein, had filed Ext.B8 written statement in that suit denying the claim of the plaintiff that it is family property. What is relevant and of significance is Ext.B11, which is the written statement filed by Nanu along with the present defendants 3 and 4. In Ext.B11 written statement, the Gift Deeds which are in issue in the present suit (Exts. B1 to B3) were specifically adverted to. The properties covered under the three Gift Deeds were scheduled to the written statement and it was stated that the properties were conveyed under Exts.B1 to B3 Gift Deeds to defendants 3 and 4, and their mother Chella. The suit was ultimately dismissed for non-prosecution. The categoric admission of Nanu regarding the execution of the Gift Deeds, is of much significance and is to be borne in mind while evaluating the evidence regarding proof of Exts.B1 to B3 gifts.
10. Admission in the written statement is substantive evidence. The admission made by Nanu in Ext.B11 written statement filed in the suit in which all the present parties were parties, cannot be brushed aside. While the first plaintiff was examined as PW1, Ext.B11 written statement and the content was specifically put to her. However, she just feigned ignorance. Pertinently, Ext.B11 was not denied. So also, while DW1 was cross-examined, not even a question or a suggestion was put to the witn
Section 77 of Evidence Act enables production of certified copies of public documents in proof of contents of such public document.
The main legal point established in the judgment is that a family arrangement deed indicating a prior oral partition, lack of possession by the donor at the time of executing the gift deed, and the d....
A gift deed executed by a deceased, if validly registered and accepted, cannot be dismissed without substantial proof of fraud or forgery.
When delivery of possession was effected in furtherance of the sale deed, it would amount to notice to all concerned.
Settlement deeds must be credible; conflicting evidence regarding execution can lead to their invalidation, impacting property partition.
Registered settlement deed proved under Evidence Act Section 68 proviso absent specific denial of execution; certified copy admissible if original lost; partition suit barred without cancelling deed.
(1) Execution of gift-deed – A deed of gift having only one witness would be void ab initio and a nullity in its very inception, but a deed of gift having two witnesses would not by itself stand ab i....
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