Sunday, 12 January 2020

When it is not necessary to examine attesting witness to prove execution of gift deed?

Under the proviso to Section 68 the obligation to produce at least one attesting witness stands withdrawn if the execution of any such document, not being a will which is registered, is not specifically denied. Therefore, everything hinges on the recording of this fact of such denial. If there is no specific denial, the proviso comes into play but if there is denial, the proviso will not apply.
We think that specific denial of execution of gift is an unambiguous and categorical statement that the donor did not execute the document. It means not only that the denial must be in express terms but that it should be unqualified, manifest and explicit. It should be certain and definite denial of execution. What has to be specifically denied is the execution of the document. 
18. The question which elicited the above answer gives a clear understanding of the case of the Defendants as they understood their case. Defendants have no case that no document was executed by Anandan Nambiar. Their case is that the document is not valid because it had been executed under circumstances which would render the document invalid. There is no specific denial of the execution of the document. The Respondents can seek the aid of the proviso to Section 68 of the Evidence Act. No defect in not calling an attesting witness to prove the document. We do not think that we can ignore Ext. A1 gift deed on the ground that no attesting witness has been called for, for proving the gift deed.

Civil Appeal No. 7528 of 2019 

Decided On: 23.09.2019

Govindbhai Chhotabhai Patel  Vs. Patel Ramanbhai Mathurbhai

Hon'ble Judges/Coram:
L. Nageswara Rao and Hemant Gupta, JJ.

Citation: AIR 2019 SC 4822
Read full judgment here: Click here
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