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Under the proviso to Section 68 the obligation to produce at least one attesting witness stands withdrawn if the execution of any such document, not being a will which is registered, is not specifically denied.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.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7528 of 2019 

Decided On: 23.09.2019

Govindbhai Chhotabhai Patel  Vs. Patel Ramanbhai Mathurbhai

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Whether court can put burden of proof on other side if plaintiff has failed to plead that she was pardanashin lady?

The plaintifffirst
respondent filed a Suit No. 155 of 1996
before the Civil Judge (J.D.), Roorkee. A copy of the plaint has
been placed on record (Annexure P/1). On perusal of the plaint,
it reveals that it has nowhere been pleaded that the plaintifffirst
respondent is a pardanasheen illiterate lady. In the ordinary
course the burden of proof rest, on who attack. On the contrary,
it was pleaded in the plaint that defendant nos.1 and 3 are the
sons of her uncle Mangta and defendant no. 2 is the wife of
defendant no. 1 and they hatched a conspiracy to grab the land
of the plaintifffirst
respondent and with connivance, the power of
attorney was prepared & registered on 25th April, 1995 in the
registry office, in the name of the plaintiff and pursuant thereto,
suit land was sold by a registered sale deed. On the basis of
pleadings on record, the abovementioned
eight issues were
framed on which both the parties have adduced oral and
documentary evidence and the trial Judge, after considering the
evidence, dismissed the suit vide judgment and decree dated 19th
January, 2001 and that came to be affirmed on dismissal of the
appeal filed at the instance of the plaintifffirst
respondent dated
27th August, 2001. It reveals from the record that without there
being any factual foundation, the High Court, while admitting the

appeal, framed two substantial questions of law in reference to
which there was no supporting pleadings on record.
14. We still, for our satisfaction have gone through the plaint
placed on record at Annexure P/1 and we are unable to find the
pleadings in support that she was a pardanasheen illiterate lady
and was entitled for protection of law and the burden was on the
defendantappellant
to prove that the alleged power of attorney
was the result of fraud.

NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 7137 OF 2010

ALI HUSSAIN  Vs  RABIYA 

Dated:SEPTEMBER 17, 2019
Rastogi, J.

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Whether a person can be held bound by recitals of deed even if he has signed said deed without reading it?

Their Lordships wish to add that in a case where the person executing the deed is neither blind nor illiterate, where no fraudulent misrepresentation is made to him, where he has ample opportunity of reading the deed and such knowledge of its purport that the plea of non est factum is not open to him, it is quite immaterial whether he reads the deed or not. He is bound by the deed because it operates as a conclusive bar against him-not because he has read it or understands it, but because he has chosen to execute it. 

BEFORE THE PRIVY COUNCIL

Privy Council Appeal No. 16 of 1937

Decided On: 13.01.1938

Martin Cashin and others  Vs. Peter J. Cashin

Hon'ble Judges/Coram:

Lords Atkin, Thankerton, Bussell of Killowen, Wright and Maugham

Citation:AIR 1938 Privy Council 103

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Whether valid gift deed can be executed even if possession of gifted property is not given to donee?

We have critically examined the contents of the gift deed. To us, it appears that the donor had very clearly transferred to the donees ownership and title in respect of her 1/8th share in properties. It was open to the donor to transfer by gift title and ownership in the property and at the same time reserve its possession and enjoyment to herself during her lifetime. There is no prohibition in law that ownership in a property cannot be gifted without its possession and right of enjoyment. Under Section 6 of the Transfer of Property Act "property of any kind may be transferred" except those mentioned in Clauses (a) to (i). Section 6 in relevant part reads thus:

6. What may be transferred.-Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force.

(a)* * *

(b) A mere right to re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property affected thereby.

(c)* * *

(d) An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.

(e) A mere right to sue cannot be transferred.

11. Clause (d) of Section 6 is not attracted on the terms of the gift deed herein because it was not a property, the enjoyment of which was restricted to the owner personally. She was absolute owner of the property gifted and it was not restricted in its enjoyment to herself. She had inherited it from her maternal father as a full owner. The High Court was, therefore, apparently wrong in coming to the conclusion that the gift deed was ineffectual merely because the donor had reserved to herself the possession and enjoyment of the property gifted.

(Emphasis supplied)

17. We are in respectful agreement with the statement of law contained in the above passage. There is indeed no provision in law that ownership in property cannot be gifted without transfer of possession of such property. As noticed earlier, Section 123 does not make the delivery of possession of the gifted property essential for validity of a gift.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4195 of 2008

Decided On: 17.07.2014

Renikuntla Rajamma Vs. K. Sarwanamma

Hon'ble Judges/Coram:

T.S. Thakur, V. Gopala Gowda and C. Nagappan, JJ.

Citation: AIR 2014 SC 2906

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Whether executant of deed is liable to pay enhanced stamp duty if rates of stamp duty are enhanced?

 The discussion made above would clearly reveal that, the document is not executed by the court concerned. In the meanwhile, Finance Act was introduced and the stamp duty was enhanced by 2%, which thus means petitioner is liable to pay the stamp duty as per the enhanced rate. The issue with respect to payment of stamp duty vis-à-vis., the fair value fixed under S. 28A of the Kerala Stamp Act, 1959 was considered by this court in Ranga Swamy Chettiar A. v. Mari Chettiyar & Anr. MANU/KE/1540/2010 : (2010 (4) KLT 367 : 2010 (4) KHC 523), and held that, stamp duty has to be paid at the rate which exists at the time of execution of instrument involving immovable property. So also in All Kerala Document Writers & Scribes Association v. State of Kerala (MANU/KE/0181/2005 : 2005 (3) KLT 234), this court had occasion to consider the issue with respect to enhancement of stamp duty with respect to execution of the document and held that, a document shall be deemed to be executed for the purpose of the Act, at the time of signing it and the stamp duty payable on it, is the one that is prevailing at the time of signing the document. So also S. 54 of the Transfer of Property Act deals with sale of immovable property. There the sale is defined as transfer of ownership in exchange of price paid or promised or part-paid and promised, and in the case of tangible immovable property of a value of ` 100/- and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

7. That apart S. 23 of the Registration Act, 1908 deals with time of presentation of document before the registering authority which says that, subject to the provisions contained in Sections 24, 25 and 26, no document other than a will be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution. Therefore, if a document is executed prior to the enhancement of the stamp duty, the consequence of paying enhanced stamp duty will not arise. So also the circumstances, law and facts dealt with under the aforesaid judgments and the facts and circumstances in this case, have no material difference so far as the essence of the issue is concerned vis-à-vis. the law involved. Taking note of the respective submissions made across the Bar and the proposition of law discussed above, it is unequivocal and clear, petitioner is liable to pay stamp duty prevailing at the time of execution of the sale deed, by the Presiding Officer of the court as per the decree granted.

IN THE HIGH COURT OF KERALA

W.P.(C) No. 33591 of 2016

Decided On: 24.10.2016

 Kurian Jose

Vs.

State of Kerala

Hon'ble Judges/Coram:

S.P. Chaly, J.

Citation: AIR 2017(NOC) 437 kerala

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Whether law applicable in respect of payment of stamp duty is as on the date of execution of said deed?

 Perusal of the impugned order reveals that the authorities have proceeded to hold the instrument in question to be deficiently stamped while taking into consideration the provisions of Section 25 of the said Act as was amended by Maharashtra Act No.XXVII of 1985. It may be noted that aforesaid section underwent changed by virtue of provisions of Maharashtra Act No. XXVII of 1985 w.e.f. 22-11-1985. However, in view of the clear provisions of Section2(d) of the said Act, the deed of conveyance having been executed on 27-03-1981, the same was chargeable in terms of the provisions of the said Act that were prevailing on said date. As observed above, provisions of Section 25 of the said Act as on the date of execution of the instrument did not attract any duty in terms of said Section.

12. From the above, it is therefore, clear that the respondent no.2 proceeded on the wrong premise that provisions of Section 25 of the said Act as amended by Maharashtra Act No. XXVII of 1985 were applicable and hence the instrument in question was deficiently stamped. A specific plea raised by the petitioners in that regard that the date of execution of the instrument was the material date has been lost sight by the Collector of Stamps. Similar error has been committed by the appellate Authority by proceeding to adjudicate the liability of the petitioners in terms of provisions of Section 25 as amended by Maharashtra Act No.XXVII of 1985 though the deed of conveyance was chargeable in terms of Section 2(d) of the said Act on 27-03-1981. In view of aforesaid, it is clear that the authorities misdirected themselves in coming to the conclusion that the deed of conveyance was insufficiently stamped under Section 25 of the said Act.                                                                                               

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH NAGPUR.

WRIT PETITION NO.6069 OF 2005

Universal Ferro & Allied Chemicals Limited, V The Deputy Inspector General of Registration &Deputy Controller of Stamps

Nagpur.

CORAM: A. S. CHANDURKAR J.

Dated : SEPTEMBER 24 & 25, 2014.

 Citation;2015(2)MHLJ152,2015(1)ALLMR571

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Whether absolute sale can be cancelled by execution of Cancellation deed?

After giving our anxious consideration on the questions raised in the instant case, we come to the following conclusion: -
(i) A deed of cancellation of a sale unilaterally executed by the transferor does not create, assign, limit or extinguish any right, title or interest in the property and is of no effect. Such a document does not create any encumbrance in the property already transferred. Hence such a deed of cancellation cannot be accepted for registration. (ii) Once title to the property is vested in the transferee by the sale of the property, it cannot be divested unto the transferor by execution and registration of a deed of cancellation even with the consent of the parties. The proper course would be to re-convey the property by a deed of conveyance by the transferee in favour of the transferor. (iii) Where a transfer is effected by way of sale with the condition that title will pass on payment of consideration, and such intention is clear from the recital in the deed, then such instrument or sale can be cancelled by a deed of cancellation with the consent of both the parties on the ground of non-payment of consideration. The reason is that in such a sale deed, admittedly, the title remained with the transferor. (iv) In other cases, a complete and absolute sale can be cancelled at the instance of the transferor only by taking recourse to the Civil Court by obtaining a decree of cancellation of sale deed on the ground inter alia of fraud or any other valid reasons.
Sale made absolute by transfer of property from vendor to purchaser. Such transfer cannot annulled by executing deed of cancellation. Cancellation of Sale deed can be ordered only under section 31 of specific relief act. Or purchaser can reconvey said property to vendor by paying stamp duty of sale deed.

Madras High Court

M/S.Latif Estate Line India Ltd vs Mrs. Hadeeja Ammal on 11 February, 2011
W.A. Nos. 592 and 938 of 2009

Citation;AIR 2011 Mad 66 (F.B.)

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