Summary
Sons challenged their father’s registered gift deed as dealing with ancestral property and as forged. The Court held that they had not established ancestral character in property their grandfather purchased and bequeathed to their father. On its reading of these pleadings and evidence, execution was not specifically denied for purposes of the Evidence Act proviso, and forgery was unproved. It upheld the High Court’s reversal of the decrees favouring the sons.
Issues
- Whether property received under the grandfather’s will was proved ancestral in the donor’s hands.
- Whether an attesting witness had to be examined and whether forgery was established.
- Whether the High Court exceeded its second-appeal jurisdiction.
Provisions considered
- Section 68 and proviso, Indian Evidence Act, 1872For a registered instrument other than a will, an attesting witness need not be called unless execution is specifically denied; the Court found no such denial here. (¶¶ 22, 23, 24, 31, 35, 38, 39, 40, 41)
Held
- A gift or testamentary bequest of self-acquired property to a son does not necessarily make it ancestral. The mode of transmission and the grantor’s intention matter. The plaintiffs neither produced the grandfather’s will nor proved an intention to benefit the family, and a bare assertion of later partition did not discharge their burden. (¶¶ 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21)
- The Court construed the entire plaint as accepting execution while attacking the deed through allegations of fabrication and surrounding improbabilities. Those allegations were not proved and did not amount, on these facts, to the specific denial attracting mandatory examination of an attesting witness. Authorities involving actual specific denials were distinguishable. (¶¶ 27, 29, 31, 32, 33, 34, 35, 38, 39, 40, 41)
- The trial court had not found the deed forged, having resolved the case on ancestral character. The High Court could decide the outstanding issue on the existing evidence. The separate will propounded by the sons had not been proved through an attesting witness. (¶¶ 28, 29, 30)
Result
The appeal was dismissed. The High Court’s judgment setting aside the trial and first appellate decrees and sustaining the registered gift was left undisturbed.