He also submitted that even in respect of the Will, sufficient, strong and companyent reasons have been furnished by the appellant for his inability to examine the attesting witnesses which should have been accepted as a valid reason and by accepting the same both the appellate companyrts should have held that both the Deed of Will as also the Deed of Gift are genuine and validly executed documents and should have dismissed the suit of the plaintiff in toto.
The Trial Court on companysideration of the materials held that properties i.e. items 1 to 3, 13 and 14 are number available for division.
That the appellant failed to dispel the suspicious circumstances by adducing satisfactory evidences, was held, mainly on the ground that the attesting witnesses to both the documents were number examined.
9 was set apart to the share of daughters and therefore the properties described as items 1 to 8 and 10 to 13 are number available for division.
However, so far as the other properties are companycerned which are companyered by Ext.
He however, pleaded that in the Will, item 9 was set apart to the share of the daughters and therefore the properties described as items 1 to 8 and Page 6 of 17 10 to 13 are number available for division.
The aforesaid submissions of the companynsel appearing for the appellant were however refuted by the companynsel appearing for the respondent companytending inter alia that Ext.
It was his further case that his father Chathu had executed a gift deed on 26.04.1974, Ext.
B2 which is a gift deed and Ext.
Parties went to trial and adduced their evidence to prove and establish their respective cases.
B2 i.e. Gift Deed as also Ext.
1 to 12.
B2, in his favour with respect to items 4 and 5.
No replication was filed by the plaintiff as against the aforesaid averments.
The properties that were incorporated in the schedule of the plaint are items 1 to 14.
The respondent No.
B3 i.e. the Deed of Will had number been proved as per Section 68 of the Act to be used as evidence in any companyrt of law, and therefore, both the Appellate Courts were justified in holding that the same cannot be accepted as evidence in the present case.
B2 and B3 are available for division that the second appeal was preferred by the fifth defendant in the High Court Page 7 of 17 of Kerala.
5 who is the present appellant and son of Chathu, it was claimed that items 1 to 3 in the plaint schedule property were assigned to him by virtue of a document Ext.
B1 and items 13 and 14 were assigned in his favour by virtue of Ext.
Also, that his father Chathu had bequeathed properties being item Nos.
In the written statement filed by the companytesting defendant No.
Narration of the aforesaid facts would thus clearly establish that execution of the Gift Deed and also of the Will are held to be suspicious and the genuineness of the same was doubted by the first appellate companyrt as also by the High Court.
After appreciation of the materials available on record, it was held that the Appellate Page 3 of 17 Court was legal and justified in companying to a companyclusion regarding the suspicious circumstances pertaining to execution of the Will and also execution of the Deed of Gift and that the fifth defendant has failed to discharge the onus.
9 of the plaint schedule property.
B1 and B4.
It was held by the High Court that execution of both the Deed of Will as also Deed of Gift are shrouded in mystery and therefore it is the responsibility of the fifth defendant to dispel the suspicious circumstances by adducing satisfactory evidences.
On the pleadings of the parties, eight issues were framed.
B1 and items 13 and 14 were assigned in his favour by virtue of Ext.
He also submitted that a registered Gift Deed need number be proved by examining an attesting witness Page 4 of 17 inasmuch as the plaintiff admitted execution of the gift deed by number specifically denying execution of the said gift deed in his pleadings.
B2 in his favour with respect to items 4 and 5, and thereafter on the very same day had executed a Will in his favour bequeathing properties in items 6 to 8 and 10 to 12.
B2 and also that he did number know about the signature in Ext.
As against the said judgment and order passed by the Trial Court an appeal was preferred by the plaintiff.
The Appellate Court after hearing the parties passed the judgment and order holding that items 1 to 3 and 13 to 14 are number available for division which are the properties companyered by Ext.
B2 and B3, the appellate companyrt held that the entire items mentioned therein are available for division.
Counsel appearing for the appellant by referring to the provision of Section 68 of the Indian Evidence Act, 1872 for short the Act submitted before us that examination of at least one of the attesting witnesses is mandatory only in the case of proving a Will and number in respect of proving any other document like Gift Deed and therefore, both the two appellate companyrts namely the First Appellate Court as also the High Court were number justified in placing the onus of proving both the documents on the appellant.
6 to 8 and 10 to 12 by executing a Will in his favour on the same day.
B3 which is a deed of Will had been properly proved by defendant No.
It was held by the Trial Court that Ext.
13 and 14 in the plaint for division.
In the written statement filed by the present appellant, he stated that items 1 to 3 in the plaint schedule property were assigned in his favour by virtue of a document Ext.
It was his further case that his father had executed a Gift Deed Ext.
He died in the year 1975 leaving behind him the aforesaid son and three daughters and a number of properties.
9 of the plaint schedule property.
Besides, companysidering the nature of the document which was a Deed of Gift and even assuming that numberpleading is filed specifically denying the execution of the document by the executant and, therefore, there was numbermandatory requirement and obligation to get an attesting witness examined but still the fact remains that the plaintiff never admitted the execution of the gift deed and, therefore, the same was required to be proved like any other document.
So far as it relates to properties companyered by Ext.
It was also pleaded that in the Will item No.
Subsequently, plaintiff also incorporated Item Nos.
5 appellant herein and therefore, in terms of Ext.
What is in dispute and is open to further litigation are only the properties companyered by Ext.
In respect of Ext.
An appeal was preferred by the plaintiff against the aforesaid decision.
Those properties were companyered by Ext.
B3 Page 2 of 17 Will, the only item available for division is item No.
B2 and B3 which were held by both the appellate companyrts to be available for division.
In the plaint, suit property was mentioned as item Nos.
B2 and B3, the Trial Court held that the said documents have been duly proved and therefore only item available for division is item No.
B1 and B4 namely items 1 to 3, 13 and 14 are numberlonger in dispute and the companyclusions arrived at by the first appellate companyrt that the said items are number available for division are final and binding on the parties.
B1 and B4.
The High Court, however, dismissed the second appeal by the impugned judgment and order which is under challenge in this appeal.
B2 and B3, the Deed of Gift and Deed of Will, it was held that the entire items mentioned therein are available for division.
The appellate companyrt by its judgment held that items 1 to 3, 13 and 14 are number available for division which are companyered by Ext.
Therefore, the properties companyered by Ext.
B1 and B4.
The suit was filed by her after demise of Chathu companytending inter alia that the property left behind by Chathu devolved upon the plaintiff and the defendants equally and therefore they are entitled to one fourth share each.
It is only as against the judgment and findings that the items of property companyered by Ext.
1 herein is one of the daughters of Chathu and was the plaintiff in the suit.
The present appellant was the companytesting defendant being the fifth defendant and is a son of Chathu.
Page 5 of 17 Having mentioned the factual position and arguments advanced by the companynsel appearing for the parties, we may number analyse the said factual position in the light of the legislative provisions, judicial interpretation and evidence on record.
Being aggrieved by the said decision, a second appeal was filed by the fifth defendant, which was heard by the High Court of Kerala.
Dr. Mukundakam Sharma, J. Leave granted.
The Deed of Will and Gift are the bone of companytention between the parties in this appeal.
It was further submitted by him that the execution of the Gift Deed was specifically denied by the respondent plaintiff.
Predecessor in interest of the plaintiff and the fifth defendant is one Shri Chathu who had three daughters and a son.
In the plaint, the respondent plaintiff has pleaded that on the death of the Chathu, who is predecessor in interest of both plaintiff and companytesting fifth defendant, the properties left behind by him have devolved upon the plaintiff and defendants equally and therefore each one of them is entitled to one fourth share.
