ROSAMMAL ISSETHEENAMMAL FERNANDEZ (DEAD) BY LRS. AND ORS. versus JOOSA MARIYAN FERNANDEZ AND ORS.

Citation: [2000] SUPP. 2 S.C.R. 336 · Decided: 09-08-2000 · Supreme Court of India · Bench: AJAY PRAKASH MISRA, Y.K. SABHARWAL · Disposal: Case Partly allowed

Judgment (excerpt)

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ROSAMMAL ISSETHEENAMMAL FERNANDEZ (DEAD) 
BY LRS. AND ORS. 
v. 
JOOSA MARIYAN FERNANDEZ AND ORS. 
AUGUST 9, 2000 
[A.P. MISRA AND Y.K. SABHARWAL, JJ.] 
Indian Evidence Act, 1872 : 
S.68, proviso-Suit.for partition-Defendant claiming through gift deed-
Plaintiff alleging the document to have been brought fraudulently-Suit de-
creed by trial court-Execution of gift deed disbelieved-Defendant's appeal 
allowed-High Court dismissed plaintiff~· second appeal holding that there 
was no specific denial by plaintiff and the proviso to s.68 would apply-Held, 
High Court erred in drawing the inference-There is a clear denial by the 
plaintiff of execution of the document-None of attesting witness examined-
Execution of gift deed not proved-In view of non-compliance of s.68, gift deed 
could not be tendered in evidence-Plaintiff has succes~:fully challenged its 
execution-No right accrued to defendant under the said gift deed-Findings 
recorded by High Court to the contrary set aside. 
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3037of1991. 
From the Judgment the Order dated 20.7.90 of the Kerala High Court in 
S.A. No. 901 of 1983-G. 
G. Vishwanatha Iyer and M.A. Firoz for the Appellants. 
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S. Padmanabhan and G. Prakash for the Respondents. 
The following Order of the Court was delivered : 
Heard learned counsel for the parties. 
The short question raised is, whether the High Court was right to entcr-
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tain Exhibit B-1 in evidence, in view of proviso to Section 68 of the Indian 
Evidence Act. 
The short facts are, the appellants filed the suit for partition of the plaint 
Schedule property claiming 2/Sth share as parties arc Roman Catholic Chris-
tians of Latin rite and as per custom in the community, both daughters and sons 
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get equal share. The appellant also challenged the execution of the gift deed 
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R.l. FERNANDEZ v. J.M. FERNANDEZ 
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Exhibit B-1 and the Settlement Oeed Exhibit B-2. The trial court dismissed the 
suit with the finding that the plaintiffs have not proved the existence of any 
custom, by which the male and female heirs share equally to the property of 
a deceased dying intestate. The claim of the property is from Jossa Mariyan 
Fernandez (deceased). The court held that Jaius Fernandez was not in a position 
to execute the documents on the alleged date i.e. the 12th of November, 1973. 
Aggrieved. by the samt:, the appellants filed an appeal. The appellate court, after 
permitting to bring on record, two additional documents, remanded the case 
back for fresh determination. After remand the trial court decreed the suit and 
held that the custom<}lleged has been proved and disbelieved the execution of 
the said two documents. The respondents' appeal by the appellate court was 
allowed and the trial--court judgment was set aside. The appellant's second 
appeal was dismissed. The High Court held the issue of custom has become 
irrelevant in view of the decision of this Court that succession among Chris-
tians in Travancore is governed by Indian Succession Act under which daugh-
ter also gets right to succeed. However, considering the execution of the said 
two documents with reference to the gift deed which we are concerned, in the 
absence of any of the attesting witness being examined, the High Court held 
as there was no specific denial of this document by the plaintiff hence, proviso 
to Section 68 of the Evidence Act will apply. 
The High Court records; 
"In fact, in this case there is no specific denial of the execution 
of the documents and it is really a case for setting aside the documents 
· on the ground of vitiating circumstances and in such a case, it is 
difficult to infer a specific denial 0f the execution of the documents 
within the meaning of that proviso." 
The finding of the High Court is challenged by the learned counsel for the 
appellant. He submits that actually there is specific denial of the execution of 
this document but the High Court has perfunctorily considered this. The ex-
istence of denial is very clear in the pleading itself. Both the High Court and 
the appellate court drew this inference based on the testimony of PW-5. The 
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relevant portion of the High Court order is quoted hereunder: 
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"Even PW-5 had to admit that he and his brother DW-3 signed in 
the document on the particular day after the document was prepared 
at their office and that Jusa Mary an Fernandez was present there then." 
Similarly, relevant portion of the a

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