K. LAXMANAN versus THEKKAYIL PADMINI & ORS.

Citation: [2008] 16 S.C.R. 1117 · Decided: 03-12-2008 · Supreme Court of India · Bench: TARUN CHATTERJEE · Disposal: Dismissed

Cited by 5 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

t 
[2008) 16 S.C.R. 1117 
K. LAXMANAN 
v. 
THEKKAYIL PADMINI & ORS. 
(Civil Appeal No. 7082 of 2008) 
DECEMBER 3, 2008 
[TARUN CHATTERJEE AND DR.. MUKUNDAKAM 
SHARMA,. JJ.] 
Evidence Act, 1872: 
s.68 - Will - Genuineness of- Burden to prove - Held: 
Is on the propounder -
When there are suspicious 
circumstances surrounding the Will, onus is on propounder 
to explain them to satisfaction of court - Will cannot be used 
A 
B 
c 
as evidence until at least one of the attesting witnesses is 
0 
called for proving its execution - On facts, scribe and one of 
attesting witnesses to the Will died before examination -
Second attesting witness was not in good physical condition 
inasmuch as he was not able to speak or move, the fact which 
was proved by the deposition of the doctor - Consequently, 
E 
as execution of Will could not be proved by primary evidence, 
propounder was required to lead secondary evidence - The 
evidence led thereof was not sufficient to satisfy the Court 
regarding the genuineness and valid execution of the Will -
Hence Will cannot be accepted as genuine. 
F 
s.69 - Deed of Gift- Validity of- On facts, One of the 
two attesting witnesses to Deed of Gift died - The other 
attesting witness was neither examined nor any reason 
assigned by appellant-propounder f/}r not examining him -
Since both attesting witnesses were not examined, in terms G 
of s. 69, it was incumbent upon propounder to prove that 
:attestation of one attesting witness at least was in .his 
handwriting and that signature of person executing document 
was in the handwriting of that person - Identifying witness 
1117 
H 
1118 
SUPREME COURT REPORTS 
[2008] 16 S.C.R. 
A ·stated that he had not signed as an identifying witness in 
~ 
•. 
respect of Gift deed and also that he did not know about the 
signature in Gift deed - Consequently, no interference called 
for with the findings recorded by Courts below that appellant 
failed to prove that deed of gift was executed by deceased -
B Constitution of India - Article 136. 
Cdde of Civil Procedure, 1908: Order 6 r. 1 - Pleadings 
t 
- Replication - Non-filing of - Effect - Held: Mere non filing 
of replication would not mean admission of facts pleaded in 
c written statement. 
The appellant-fifth defendant and respondent No.1-
plaintiff were brother and sister. After death of their father, 
respondent. No.1 filed a suit contending that the property 
left behind· by their father devolved upon her and other 
D brother and sisters equally and, therefore, each were 
entitled to one fourth share. Before the trial Court, 
appellant stated that items 1 to 3 in the plaint schedule 
property were· assigned in his favour by virtue of a 
document Ext.81 and items 13 and 14 were assigned in 
E his favour by virtue of Ext. 84. Further in respect of item 
Nos. 4 and 5, a gift deed· Ext.82 was executed in his 
favour. Also item Nos. 6 to 8 and 10 to 12 were 
bequeathed in his favour by Will Ext.83. It was also 
pleaded that, in the Will, item No.9 was set apart to the 
F share of daughters. 
The trial Court held that Ext.82 and Ext.83 were 
properly proved by the appellant and therefore in terms 
of Ext.83 Will, the only item available for division was item 
G 
No.9 of the plaint scf,ledule. On appeal, the First Appellate 
Court held t~at items 1to3 and 13 to 14 were not available 
for division which were the prop~rties covered by Ext.81 
~ 
and 84. However, prope.rties covered by Ext.82 and 83 
were available for division. 
H· 
Appellant filed appeal before the High Court. The 
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K. LAXMANAN v. THEKKAYIL PADMINI & ORS. 
1119 
High Court held that execution of both the Deed of Will 
A 
and also Deed of Gift were shrouded in the mystery and, 
therefore, it was the responsibility of the appellant to 
dispel the suspicious circumstances by adducing 
evidences, which he failed to discharge. 
In the instant appeal, it was contended for the 
8 
appellant that by virtue of s.68 of Evidence Act, 1872, the 
examination of atleast one of the attestin·g witnesses is 
mandatory only in the case of proving a Will and not in 
respect of proving any other document; that a registered 
C 
Gift Deed need not be proved by examining an attesting 
witness inasmuch as respondent No.1 admitted 
execution of the Gift Deed by not specifically denying 
execution of the said Gift Deed in pleadings; and that 
dispute was only in respect of the properties covered by 
Ext. 82, Gift Deed and Ext. 83, Will, which were held by 

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