IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA TUESDAY, THE 23RD DAY OF AUGUST 2011/1ST BHADRA 1933 SA.No. 636 of 2002 (A) ----------------------- AGAINST THE ORDER/JUDGMENT IN AS.224/1998 of III ADDL. DISTRICT COURT, TRIVANDRUM DATED 10-01-2002 AGAINST THE ORDER/JUDGMENT IN OS.281/1996 of SUB COURT, NEDUMANGAD DATED 24-01-1998 APPELLANT(S)/(1ST APPELLANT/1ST DEFENDANT): -------------------------------------------- ------------------------ ABOOBAKER, S/O.MOHAMMED KANNU, NAZEEMA MANZIL, KOCHUKARIKKAKOM DAIVAPURA P.O., PERINGAMALA. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S)/(RESPTS & 2ND APPLT/ADD.PLTFFS 2 TO 8 AND DEFENDANTS 3 AND 4 AND DEFENDANT: ---------------------- 1. JUMAILA BEEVI AGED ABOUT 68, W/O.SHAHUL HAMEED, SURYAKANTHI, THADATHARIKATHU VEEDU THENNOOR P.O., PERINGAMMALA. 2. S.M.BASHEER, S/O.SHAHUL HAMEED, MOTTAMOODU, THADATHARIKATHU VEEDU, MARUTHUMMOODU CHETTACHAL P.O., VITHURA. 3. S.M.RASHEED, S/O.SHAHUL HAMEED, SALEENA HOUSE, CHENNAMPARA, VITHURA P.O. 4. S.M.SALIM, S/O.SHAHUL HAMEED, SOORYAKANTHI, THADATHARIKATHU VEEDU, THENNOOR P.O. PERINGAMMALA. 5. ABIDA BEEVI, W/O.SULAIMAN, ROADARIKATHU VEEDU, KAPPUKADU, KOTTOOR P.O. KUTTICHAL. 6. RAFEEKA BEEVI, D/O.SHAHUL HAMEED, ELAMTHOTTAM, T.C.43/742, KAMALESWARAM MANACAUD P.O., TRIVANDRUM. SA.No. 636 of 2002 -2- 7. SUBAIDA BEEVI, D/O.SHAHUL HAMEED, PALLITHIRUVU, POONTHURA, TRIVANDRUM. 8. S.M.ASHRAF, S/O.SHAHUL HAMEED, SOORYAKANTHI, THADATHARIKATHU VEEDU THENNOOR P.O.(NOW WORKING AT P.B. 4341, ABUDHABI U.A.E. 9. A.ABDUL AZEEZ, S/O.ASANARU PILLAI, MANNANTHALA, KIZHAKKUMKARA PUTHEN VEEDU KOCHUKARIKKAKOM, ELANCHIYAM P.O., PERINGAMMALA. pR1TO R7 BY ADV. SRI.P.GOPALAKRISHNAN NAIR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23-08-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA ,J. ------------------------- S.A No.636 of 2002 -------------------------- Dated this the 23rd August, 2011 J U D G M E N T This appeal arises from decree and judgment in partition suit, on the file of the Sub Court. First defendant is the appellant. A preliminary decree was passed for partition of plaint A and B schedule properties into three shares by metes and bounds and the plaintiff was allotted one share out of it. 2. According to plaintiff, (parties will be referred to as they are referred to in the suit) plaint A schedule property comprising of 43 cents belong to the mother of the parties. Plaint B schedule property also originally belonged to the deceased mother and it is item No.3 in Annexure A1 which is a gift deed dated 24.3.1984. 3. As per Ext.A1, certain extent of property was settled in favour of the plaintiff and defendants 1 and 2. Plaintiff and defendants 1 and 2 were brothers. Item No.3 in Annexure A1 was allotted to the 1st defendant. Plaintiff's case is that on 5.3.1986, first defendant re-conveyed the S.A No.636 of 2002 2 property (plaint B schedule ) in favour of mother by virtue of Ext.A2 gift deed. Therefore, it is partible and plaintiff is entitled 1/3 rd share in the said property. 4. During the pendency of the case, plaintiff died and hence his legal representatives were impleaded as additional 3rd defendant and 4th defendant. 5. First defendant filed a written statement and admitted that plaint A schedule property was settled in favour plaintiff and defendants as per Ext.A1. Plaint B schedule property is in exclusive possession and ownership of 1st defendant. But he did not execute Ext.A2 or any gift deed in favour of mother in 1986 and re-conveyed the property. If at all any document is created, it may be by impersonation. He also set up a case of oral gift by which the plaint A schedule property was allegedly gifted in favour of him. Thereby, he is in occupation of the house in which plaint A schedule property is situated. 6. Second defendant filed written statement adopting the contention of the 1st defendant. To prove the case of plaintiff, PW1 to 5 were examined and Exts.A1 and A2 were S.A No.636 of 2002 3 marked. Defendants did not adduce any evidence either oral or documentary. Exts.X1 and X1 (a) were also marked. On an analysis of the evidence, the trial court upheld the contentions of the plaintiff and found that Ext.A2 gift deed was executed by first defendant and the properties covered by the document belong to the mother on the date of her death and hence, plaint B schedule property are partible. It was also held that the oral gift alleged by the 1st defendant is not true and hence plaint A schedule property was also held to be partible and a preliminary decree was passed accordingly. 7. Appellate court also confirmed the above findings and dismissed the appeal filed by the 1st defendant. Against the concurrent finding and the preliminary decree passed this second appeal is filed by the 1st defendant. 8. Learned counsel for appellant at the very outset submitted that he is not pressing the contention relating to plaint A schedule property and the decree and judgment in respect of plaint A schedule property. Heard both sides. Perused the records. The following substantial questions of S.A No.636 of 2002 4 law is involved in this appeal and those are formulated as follows: (i) Can execution of a gift deed be proved by production of a registration copy of a gift deed (issued under Section 57 of the Registration Act) and marking of the same? (ii) In the total absence of any evidence to show that a particular signature in a particular document is that of a particular person, can it be compared with admitted signature of a person under Section 73 of the Evidence Act? (iii) If there is any inconsistency between the chief examination and the cross-examination, is it legal or proper to accept the facts stated in chief examination in preference to the cross- examination? Substantial questions of law (i )to (iii) 9. Learned counsel for appellant strongly argued that Ext.A2 which is the alleged gift deed executed by the 1st defendant in favour of his mother by which he allegedly re- conveyed the property is not proved.. There is absolutely no evidence to show that Ext. A2 gift deed is executed by the 1st defendant/appellant though its execution is disputed. It is specifically pleaded in the written statement that the document which is purported to have been executed by 1st defendant must have been created by personation. In spite S.A No.636 of 2002 5 of such pleading, respondents plaintiff has not proved that the said document was executed by the 1st defendant. 10. Learned counsel for appellant also argued that gift deed requires attestation by virtue of Section 123 of the Transfer of Properties Act and such a document can be proved only in the manner stated in Section 68 of Evidence Act. But Ext.A2 gift deed is not proved, as required under law. In the absence of proof of Ext.A2 as per law, trial court and appellate court grievously erred in comparing signature in Ext.X1 which is the thump register with admitted signature in the vakalath. 11. It is also argued that original of Ext.A2 is not before the court and respondent has no case that the original was not available. In the absence of any evidence as to what happened to the original of Ext.A2, it ought not to have been relied upon as secondary evidence, it is submitted. He also cited various decisions in support of his arguments. 12. Learned counsel for plaintiff-respondent argued that Ext.A2 is a public document, being the certified copy of gift deed issued by PW2, the Registrar and the S.A No.636 of 2002 6 production of the same is sufficient to prove execution of EXt.A2. In the light of the decision reported in Hafeeza Bibi Vs. Shaikh Farid & Others [2011 (5) SCC 654], three essential of a valid gift deed are (i) a declaration of gift by the donor (2) an acceptance of gift by donee and (3) Delivery of possession to the donee. Writing itself is not essential for validity of gift, it is submitted. 13. In this case all these three essentials exist and hence it cannot be said that there is no valid gift, it is argued. It is also argued that defendants have not adduced any evidence to prove that he has not executed Ext.A2 gift deed. It is also argued by respondents counsel that PW5 who is an attester to Ext.A2, was won over by 1st defendant and hence, he gave a different version in the cross -examination . The trial court which had occasion to notice the demeanor of the witness has rightly accepted the chief examination of PW5, in preference to the cross-examination and his evidence also proves that Ext.A2 is executed by 1st defendant. 14. On hearing both sides, I find that the whole case S.A No.636 of 2002 7 revolves upon the pivot of alleged execution of Ext.A2 by the 1st defendant. If Ext.A2 is not executed by 1st defendant, going by the pleading in the plaint itself, Plaint B schedule property belongs to the 1st defendant by virtue of Ext.A1 gift deed executed by the deceased mother. Under Ext.A1, the plaintiffs have also received a portion of the property and such portion is not included in the suit for partition. Plaintiff is admitting execution of Ext. A1 by which plaint B schedule property has been settled in favour of the 1st defendant. 15. According to plaintiff-respondent, plaint B schedule properties are re-conveyed to the mother by 1st defendant by executing Ext.A2. As pointed out by learned counsel for appellant, the original of Ext.A2 is not produced before the court. When execution of document is denied and disputed, it is the duty of the plaintiff or the person who seeks to prove the document to produce the original itself. Existence of a document must be proved by primary evidence as per Section 64 of Evidence Act except in cases referred to in the subsequent provisions. “Primary evidence” means, the document itself produced for inspection of court, as per S.A No.636 of 2002 8 Section 62 of Evidence Act. The expression “must be proved” in Section 64 of Evidence Act is quite relevant. “Proved “ is defined in Section 3 of Evidence Act. It reads thus: “Proved”: A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.” 16. Thus, as per Section 3, a fact can be said to be proved, of the court believes that such fact exists. A thing or state of thing which is capable of being perceived by the senses is a “fact” as per definition under Section 3 of Evidence Act. A “document” is a thing which exists in a particular condition or state, with certain contents, as stated in the definition of “document” in Section 3 of Evidence Act. The existence of a thing in such condition or state or with certain contents as referred to in the definition of “document” in Section 3 is capable of being perceived by the senses. 17. Therefore, existence of a “document” in a S.A No.636 of 2002 9 particular condition or state with certain contents, as stated in the definition of “document” is a “fact”. Such thing must be proved by production of the document itself, as per Section 64 of Evidence Act except in cases referred to in the subsequent provisions in the Evidence Act. Therefore, existence of a document in a particular state or condition with certain contents can be said to be proved, if such document is produced for inspection of court and the court believes its existence, condition/state and contents. 18. The “document” itself must be produced for the court to believe or to be satisfied that such a thing exists in a particular condition/state with certain things which it contains. Without production of the same, it is difficult to believe such facts exist. That is why it is laid down in Section 64 of Evidence Act that document must be proved. However, an exception is carved out in Section 64 itself. Thereby, a document could be proved, as per provisions falling after Section 64 of Evidence Act and Section 65 is one such provision. Therefore, document can be proved (the existence, condition/state and its contents) as per Section 65 S.A No.636 of 2002 10 onwards, as an exception. 19. Section 65 of Evidence Act lays down that “secondary evidence” may be given of the “existence, condition or contents of a document” in the cases referred to in sub-clause (a) to (g) of Section 65. But to prove the existence, condition or contents of the document by adducing “secondary evidence”, certain conditions as referred to in Section 65 are to be satisfied. But only if the conditions referred to in Section 65 are satisfied, the secondary evidence can be permitted to be let in by the court under the said Section. Proof of a document is ordinarily by primary evidence and only in the absence of primary evidence that secondary evidence can be let in. But, as rightly pointed out by learned counsel for appellant, there is absolutely no pleading or evidence in this case to show whether original document is available or it exists. There is also no pleading revealing whether the original gift deed exists or it is available and if available, why it is not produced. 20. Plaintiff/respondent has no case that as to what S.A No.636 of 2002 11 happened to the original document. Plaintiff is silent about the existence of original. In the absence of anything on record to show that the case at hand falls under any of the sub-clauses of (a) to (f) of Section 65, mere explanation regarding the existence or availability of the original, mere production of a registration copy of the gift deed, will not be sufficient to admit such copy as secondary evidence. This is particularly so, since the execution of a gift deed is denied. A decision of the Division Bench of this Court reported in Thampy Vs. Varkey Emmanuel [2005 KHC 1226], was cited at the Bar to say that under what circumstances, secondary evidence can be allowed to be adduced under Section 65 of Evidence Act. 21. When execution of a document is denied and it is contended that the document is created by personation, the court will firstly look forward for proof of handwriting and signature in the document, to confirm whether such document is executed by the person who allegedly created and purportedly signed it. If a document is alleged to be signed or written by any person, such signature or S.A No.636 of 2002 12 handwriting must be proved to be in his hand writing (vide Section 67 of Evidence Act). This is the first step towards proving execution of a document. 22. But there is absolutely no evidence to prove that the gift deed contains the signature of the 1st defendant. Ext.A2 is only a registration copy of the alleged gift deed which does not even contain the signature. Ext.A2 is only the certified copy of book no.1 which is issued under section 57 of the Registration Act. The mere production of the document issued under Section 57 of the Registration Act or the marking of the same will not prove that the original of such document was created or caused to be created at the instance of the person who allegedly executed it. 23. The specific case of appellant is that said document would have been created against him by personation. It was also pointed out by learned counsel for appellant that there was no occasion for appellant to execute the gift deed by which he re-conveyed the property with his mother. The plaintiff/respondent has not pleaded any fact or circumstances which indicate that 1st defendant would have S.A No.636 of 2002 13 been persuaded or compelled to re-convey the properties to his mother. 24. It is also pointed out that properties which were allotted in favour of plaintiff and second defendant as per the same document Ext.A1 were not re-conveyed to mother by either of them and there was absolutely no reason for appellant to re-convey the properties back to his mother. Plaintiff examined PWS1 to 5 to prove the execution of the gift deed by appellant. But none of the witnesses deposed in court that the gift deed was signed by appellant in their presence. No witness was examined to prove execution of Ext.A2. There is absolutely no evidence to prove that gift deed was executed by appellant. 25. PW5 is the alleged attester to the alleged gift deed executed by appellant. In the chief examination, he did not make any whisper that appellant signed in any gift deed. PW5 stated that he is a witness in Ext.A2 (which is only a registration copy of gift deed) and that he had signed the same, as requested by first defendant from the office of scribe. It is needless to say that registration copy of a gift S.A No.636 of 2002 14 deed will not show the signature of the executant or attestors. So, no value can be attached to the version given by PW5 that Ext.A2 was signed by him. He was not shown original of Ext.A2 which may contain the signature. 26. In such circumstances, even evidence of PW5 who is stated to be the sole attester, will not prove that appellant signed in any gift deed, as alleged by plaintiff. It is pertinent to note that in the cross examination, PW5 specifically deposed that he had not seen the appellant coming to the Registrar's Office or signing any document though he stated in chief examination that he himself had signed in Ext.A2 as requested by the appellant. 27. The question is not whether PW5 signed any gift deed as an attester at the request of appellant. What is relevant is whether appellant had signed any gift deed and executed the same. The evidence of PW5 is totally insufficient to prove such fact. It will not show that a gift deed was executed by appellant. The basic facts from which an inference can be made about signature and execution of a gift deed are not before court. In this context it is relevant S.A No.636 of 2002 15 to note that both the courts below entered a finding that gift deed was executed by first defendant, based on the evidence of PW5. 28. The observations and findings in the judgment of the first appellate court are as follows: “PW5 is an attester to the Ext.A2 gift deed. In the chief-examination he has deposed that he has signed as a witness in the gift deed executed by the first defendant in favour of Pathummal Kunju and he has signed in the document as requested by the first defendant who was known to him for a very long time. After the chief- examination the case was adjourned to another day at the request of the learned counsel for the defendants. But PW5 was not turned up for completing his examination in the Court. As PW5 has not turned up after chief examination he was proceeded by resorting to coercive steps like arrest warrant and attachment of his property. But when PW5 has been examined after one month he has deposed that he has not seen first defendant signing in the document” It is clear from the relevant portion from the impugned judgment that the court entered a finding that what is stated in the chief examination is correct and version in the cross examination was not voluntarily. Under no stretch of S.A No.636 of 2002 16 imagination such a conclusion can be made, on the basis of the evidence given by PW5. For the sole reason that cross examination was conducted after lapse of considerable time and that PW5's presence for cross examination was made available after resorting to coercive steps etc, court cannot reject cross examination and accept chief examination. 29. Statements made in chief examination as well as cross examination constitute “evidence” as per law. The oral statement given in the chief examination and cross examination constitute “evidence” under section 3 of Evidence Act. Court cannot accept one portion of evidence (chief examination) and reject the other (cross-examination) without assigning any strong reason to do so. 30. A close reading of PW5's evidence will show that he did not in fact state anything inconsistent in cross examination. In the chief examination, he had no case that first defendant had signed in any gift deed and in cross- examination he stated that he had not seen first defendant signing the document. Therefore, there is no inconsistency and there is no justification for holding that “change in S.A No.636 of 2002 17 version of PW5 because he was won over by after chief examination”. 31. While rejecting any part of evidence on a crucial aspect or accepting any portion of evidence in preference to the other, the court must show cogent reason to do so. It is only if court thinks that portion of the evidence is not believable that such evidence can be rejected. But it will be highly improper for the court to accept a portion of evidence of a witness on a material fact according to its whims and fancies and reject the other portion without any acceptable reason. If facts stated in chief examination is accepted and cross examination is rejected and if any finding is entered into on the basis of chief examination alone which is arbitrarily chosen by the court in preference to the cross- examination, without assigning any strong reasons, such finding can be said to be vitiated by perversity. Such a finding cannot be sustained. 32. Any way, In the absence of any evidence on the availability of the original of a document like gift deed, mere production of a registration copy of such document or S.A No.636 of 2002 18 gift deed will not suffice to prove that the person who allegedly executed the document executed such document, especially when the execution of such document is disputed and it is contended that it is falsely created. 33. The execution of a gift deed cannot be proved by mere production of registration copy of a document, especially in the absence of anything in pleading and evidence to show that the original is not available. Production of the original is the rule and secondary evidence is only except going by Section 64 of Evidence Act. The non-production of original gift deed and absence of any explanation for letting in any secondary evidence under Section 65 of Evidence Act, the court shall not act upon the mere registration copy of a document issued under Section 57 of Registration Act to hold that such document was executed by the person who allegedly executed it. Therefore, mere marking of Ext.A2 is not sufficient to prove that appellant executed a gift deed. 34. Going by the contention of plaintiff-respondent, plaint B schedule property was owned by first S.A No.636 of 2002 19 defendant/appellant by virtue of Ext.A1. The case set up by plaintiff that the said property was re-conveyed in favour of his mother by virtue of Ext.A2 is not proved by the plaintiff. In such circumstances, 1st defendant does not lose his right over plaint B schedule property and it is not partible. A preliminary decree granted in favour of plaintiff respondent in respect of plaint B schedule property is therefore clearly illegal and is liable to be set aside. 35. Both the courts below committed another serious mistake. The signature in a Thumb Register maintained in the Registrar's office was compared with admitted signature in vakalath to hold that there was a gift. 36. The trial court and the appellate court made a comparison of the signature in Ext.A2 with Ext.X1(a) and held that Ext.A2 was executed by appellant. Ext.X1 is a thumb expression register. Exts.X1 and X1(a) are not marked through any witness. The thumb impression register was produced by PW2 in court and Ext.X1(a) is supposed to be the signature of appellant. 37. PW2 did not make any reference to Ext.X1 or S.A No.636 of 2002 20 Ext.X1(a) while examined in court. The said