IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.204 of 2009 1.Paras Ahir, Son of Late Paharu Ahir. 2. Most. Shanti Kuwar, Wife (Widow) of Late Sawarath Ahir @ Sarath Ahir. Both residents of Village- Kharati, P.O. & P.S.-Chand, District-Kaimur (Bhabhua). --------Defendants-Appellants-Appellants. Versus 1.Lali Devi ,Wife of Namawar Yadav, Resident of Village- Parasiya, P.S.- Chandauli, District- Varanasi(U.P.), alleged in the plaint as well as decree at present resident of village- Kharati, P.O & P.S.-Chand, District- Kaimur(Bhabhua). 2. Chanda Devi, Wife of Kripa Shankar Singh, resident of village-Kata, P.S.- Chandauli, District- Varanasi(U.P.), alleged in the plaint as well as decree at present resident of village- Kharati, P.O & P.S.-Chand, District- Kaimur (Bhabhua). ------Plaintiffs-Respondents-Respondents. ----------- 11. 03.11.2011 Heard Mr.Anjani Kumar Sinha, the learned counsel appearing on behalf of the appellants in support of this appeal. 1. The defendants are the appellant in this second appeal against the dismissal of his appeal in the appellate court below. The defendants in the suit have claimed to have obtained a gift deed dated 24.03.1986 for the suit 2 property from the father of the plaintiffs and the plaintiff have assailed the said gift deed by filing the suit for declaration that the gift deed dated 24.03.1986 is an illegal and void document and the prayer has been made to set aside the same. The plaintiffs have also prayed for declaration of their title and possession over the suit land. The main assertion of the plaintiffs is that their father Sukhdeo Ahir was rustic man of weak intellect and the defendants by taking benefits of his weakness and shortcomings have fabricated the gift deed in question with regard to the entire property although Sukhdeo Ahir had only ¼ the share in the same. The defendants have resisted the reliefs sought for by the plaintiffs, inter alia, by asserting that Sukhdeo Ahir (father of the plaintiff) out of his own freewill and volition had executed the gift deed in question in their favour and he had full title over the gifted property and right to execute the said gift deed. It is also the case of the defendants that even prior to the execution of the present gift deed dated 24.03.1986 (Ext. B/1) , the same donor had executed a gift deed dated 17.07.1982(Ext.B) in favour of the defendants for the same land but as the 3 earlier gift deed was without requisite sanction from the consolidation authorities, the later gift deed had been executed after obtaining the necessary sanction. The defendants have also come out with the case that the earlier gift deed of the year 1982 had been subject matter of challenge in a suit filed by the mother of the plaintiffs in which the donor in his written statement had admitted the execution of the gift deed in favour of the defendants. The defendants, thus, on the basis of these main submissions have prayed for dismissal of the suit. 2. Both the courts below after considering the evidence and rival submissions of the parties have reached to the concurrent finding that the gift deed in question(Ext.B/1) is not a document which has been executed with freewill and volition by the donor (Sukhdeo Ahir) in favour of the donees(defendants).It has further been held that the defendants have failed to prove the execution of the gift deed in their favour by examining at least one attesting witness thereupon in view of the provisions of Section 68 of the Evidence Act. As a result the suit was decreed holding the gift deed (Ext.B/1)to be illegal and invalid document and appeal 4 thereof has also been dismissed. 3. The learned counsel appearing on behalf of the appellants has vehemently argued that the error of law has been committed by both the courts below in attracting the provisions of Section 68 and holding on that basis that the execution of the gift deed could not be proved by the defendants. It has been urged by the learned counsel that the written statement filed by the donor, Sukhdeo Ahir, in the earlier suit brought on record as Ext.D/1 clearly shows that he had admitted to have executed the gift deed in favour of the defendants. It has been contended that although the earlier suit was with regard to Ext. B i.e. the gift deed in favour of the defendants of the year 1982 but the factum of execution and the intention of the donor to have willingly executed the gift deed in favour of the defendants was explicit. Referring to the provisions of Section 33 of the Evidence Act the learned counsel has submitted that the previous admission by the donor accepting gift deed could be sufficient to overcome the provisions of Section 68 of the Evidence Act. Thus the learned counsel has contended that substantial question of law arises for 5 consideration in this appeal as the defendants have been wrongly non-suited by both the courts below. 4. There is no dispute regarding the applicability of the provisions of Section 68 of the Evidence Act to the facts of this case according to which it was incumbent upon the defendants to have examined at least one attesting witness in order to prove the execution of the gift deed in their favour. There is also no dispute that no attesting witness of the gift deed had been examined on behalf of the defendants. The contention of the learned counsel that in view of the provisions of Section 33 of the Evidence Act the admission by the donor in the earlier suit between the same parties can be looked into for the purpose of exempting the defendants from examining the attesting witness in order to prove its execution in view of the provisions of Section 68 of the Evidence Act. 5. The purpose and object of the provisions of Section 123 of T.P.Act and Section 68 of the Evidence Act, relating to attestation and examination of the attesting witnesses, are by way of precaution against forgery or perpetration of fraud or exercise of undue 6 influence and coercion in obtaining a gift deed and the testimony of the attestor is taken as “the most desirable and trustworthy evidence” as to the fact of execution of the document. However, the requirement of examining the attesting witness is waived in a case where the execution of the registered gift deed has not been specifically denied by the donor. In the present case, the plaintiffs have in clear and strong terms denied the execution of the gift deed in question by their father in favour of the defendants in their pleadings. As such the benefit of the proviso of Section 68 of Evidence Act will not be available to the defendants. The apex court in (Rosammal Issetheenammal Fernandez Vs. Joosa Mariyan Fernandez & Ors.) (2000) 7 SCC 189 considering the applicability of the proviso to Section 68 evidence in similar circumstances has held: “11.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 7 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. In the present case as we have held, there is clear denial of the execution of such document by the plaintiff, hence the High Court fell into error in applying the said proviso which on the facts of this case would not apply. In view of this the very execution of the gift deed, Exhibit B-1 is not proved. Admittedly in this case none of the two attesting witnesses has been produced. Once the gift deed cannot be tendered in evidence in view of the non-compliance of Section 68 of the Indian Evidence At, we uphold that the plaintiff has successfully challenged its execution.” 6. However, the learned counsel for the appellant has tried to wriggle out from this position by relying upon the written statement (Ext.D/1) of the donor in previous suit relating to the earlier gift deed of the year 1982 in their favour and has submitted that the said 8 admission by the donor, is sufficient to bring his case within the proviso to Section 68 of Evidence Act as the present gift deed had to be executed because the earlier gift deed was not valid for want of sanction under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. By referring to Section 33 of the Evidence Act, it has been contended that the said admission becomes relevant for proving the due execution of the gift deed in question in the present suit. 7. The relevancy of the admission made by the donor (Sukhdeo Ahir )made in his written statement (Ext.D/1) and in his deposition in other proceedings has been considered by both the courts below and it has been rightly held that the validity of the present gift deed dated 24.03.1986(Ext.B/1) was not at all in issue in the previous suit or other proceedings and therefore the statement made by the donor with regard to another gift deed in that suit or proceedings could not be made relevant in the present suit. This view is in consonance with the proviso to Section 33 of Evidence Act which makes an admission relevant only when “ the question in issues were substantially the same in the first as in the 9 second proceeding” and thus the contention of the learned counsel in this regard has got no force. For the foregoing reasons it is held that there is no substantial question of law arising for consideration in this appeal. This appeal is, accordingly, dismissed. Nitesh ( V. Nath, J.)