IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 RSA.No. 713 of 2008() --------------------- AS.22/2001 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.238/1996 of SUB COURT, MAVELIKKARA .................... APPELLANT/2ND APPELLANT/1st DEFENDANT:- ----------------------------------------------------------- IYPE CHANDA PILLAI,S/O CHANDA PILLAI, AGED 50 YEARS, KOTTPPURATHU HOUSE,KIZHAKKEVAZHI MURI, THRIPPERUMTHARA VILLAGE,MAVELIKARA TALUK. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.GEORGE MATHEW SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW RESPONDENT(S)/RESPONDENTS/PLAINTIFFS: --------------- 1. SUSAN CHANDA PILLAI @ SUSAN KURUVILA D/O CHANDA PILLAI,KOTTAPPURATHU HOUSE, KIZHAKKEVAZHI THRIPPERUMTHARA,MAVELIKKARA, REP. BY POWER OF ATTORNEY HOLDER A.M.KURIVILA, RESIDING AT 2789, ANSA APPARTMENTS, 12 TH MAIN ROAD, ANNA NAGAR WEST, MADRAS -40 2. JAYA CHANDA PILLAI @ JAYA MATHEW VARGHESE, D/O CHANDA PILLAI, KOTTAPPURATHU HOUSE, KIZHAKKEVAZHI THRIPPERUMTHARA, MAVELIKKARA, NOW RESIDING AT ANY VIEW, CHERUKULATHU, PANNIVIZHA P.O., ADOOR.. ADV. SRI.P.R.VENKETESH FOR R1,2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.713 of 2008 -------------------------------------- Dated this the 7th day of October, 2009. JUDGMENT This Second Appeal arises from judgment and decree of learned Additional District Judge-I, Mavelikkara in A.S.No.22 of 2001 confirming judgment and decree of learned Sub Judge, Mavelikkara in O.S.No.238 of 1996. That was a suit for declaration of title, setting aside Ext.A6, cancellation deed and for consequential reliefs. Appellant and respondent Nos.1 and 2 are children of late Chanda Pillai and defendant No.2 who died pending suit. Property described in plaint schedule originally belonged to late Chanda Pillai. Respondent Nos.1 and 2, daughters claimed that late Chanda Pillai executed Ext.A1, gift deed No.1882 of 1974 in their favour. As per that document item No.I of plaint schedule was gifted to respondent No.1 while item No.II went to respondent No.2. Respondent Nos.1 and 2, late Chanda Pillai and defendant No.2 were residing together until marriage of respondent Nos.1 and 2. They claimed that they accepted the gift and effected mutation of the properties in their respective names, paid revenue and enjoyed the properties. Respondent No.1 was sent in marriage in the year 1977 and respondent No.2, in the year 1983. From then onwards they are residing with their husbands. While so Chanda Pillai died on 5.5.1996. Respondent Nos.1 and 2 learnt that late Chanda Pillai executed Ext.A6, deed dated 23.3.1991 cancelling Ext.A1. They claimed that the original of Ext.A1 was entrusted to late Chanda Pillai by RSA No.713/2008 2 respondent No.2 on Chanda Pillai representing to her that the original document is required for effecting some correction in the re-survey number of the property referred to in that document and thus the original happened to be given to Chanda Pillai. Their further case is that after cancellation of the gift deed late Chanda Pillai mortgaged the properties in favour of defendant No.3, a Co- operative Bank which is not binding on them or the suit properties. Appellant contended that no such gift deed was executed and at any rate it was not accepted or acted upon by respondent Nos.1 and 2 during the life time of late Chanda Pillai. According to him, respondent Nos.1 and 2 were not even aware of the gift. The property continued to be in the possession of late Chanda Pillai till his death and thereafter in the possession of himself and deceased defendant No.2. He claimed that the cancellation deed is valid. Defendant No.3, the Co- operative Bank contended that late Chanda Pillai mortgaged the suit property with it and obtained loan and hence it has a charge over the property. Learned Sub Judge found that the gift is duly executed as admitted by late Chanda Pillai himself, it was accepted and acted upon by the donees (respondent Nos.1 and 2) and that its cancellation is invalid. As such mortgage created by late Chanda Pillai in favour of defendant No.3 could not bind respondent Nos.1 and 2 or the suit property. Accordingly, decree was granted as prayed for. First appellate court has concurred with the said conclusions and dismissed the appeal. Hence this Second Appeal raising the question whether due execution of Ext.A1 is proved as the substantial question of law. Learned senior counsel appearing for RSA No.713/2008 3 appellant contends that courts below were not correct in taking recourse to Section 70 of the Indian Evidence Act (for short, “the Act”) to hold, in the absence of other evidence in favour of due execution of Ext.A1. In so far as execution of Ext.A1 is not proved, claim of respondent Nos.1 and 2 over suit property has to fail. 2. So far as the question raised by learned senior counsel regarding proof of execution of Ext.A1 is concerned, Section 68 of the Act states that if a document is required by law to be attested it shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Proviso to Section 68 exempts from the said requirement documents registered in accordance with the provisions of the Registration Act not being a Will the execution of which by the persons by whom it purports to have been executed is not specifically denied. Section 70 of the Act states that admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested. It is not disputed that gift deed is a document required by law to be attested. Therefore, if its execution is specifically denied, its execution has to be proved by the person putting up such document. True, in this case appellant has denied execution of Ext.A1, gift deed. Then the question is whether in the light of Ext.A6 and Section 70 of the RSA No.713/2008 4 Act it was incumbent on respondent Nos.1 and 2 to examine at least one of the attesting witness in Ext.A1 in proof of that document. I referred to the scope of Section 70 of the Act. If the executant of the document himself has admitted its execution, then further proof of its execution is not required. Learned senior counsel has referred to Ext.A6, cancellation deed dated 23.3.1991 executed by late Chanda Pillai who according to respondent Nos.1 and 2, executed Ext.A1, gift deed. Ext.A6 specifically refers to late Chanda Pillai admitting execution of Ext.A1. If further says that for reasons stated therein, he is cancelling Ext.A1. In other words, Ext.A6 contains a specific admission by late Chanda Pillai that he executed Ext.A1. Admission is the best form of evidence. Facts admitted need not be proved. That satisfies, in my view the requirement of Section 70 of the Act. Appellant is claiming right over suit property only as legal representative of late Chanda Pillai and therefore cannot have any independent right over the suit property. No doubt he can also deny execution of the gift deed in his capacity as legal representative. But, late Chanda Pillai himself having admitted execution of Ext.A1, it is not open to the appellant to deny the execution of Ext.A1. At any rate, even if the denial is taken on its face value as valid, due execution of Ext.A1 is proved by Ext.A6 as admitted by late Chanda Pillai himself and hence, in my view it was not necessary for respondent Nos.1 and 2 to examine any attesting witness in proof of Ext.A1. On this question no RSA No.713/2008 5 substantial question of law would arise as urged in the appeal memorandum on the facts and evidence of the case and as the position is settled by Section 70 of the Act. 3. So far as acceptance of Ext.A1, gift deed by respondent Nos.1 and 2 during the life time of the donor (late Chanda Pillai) is concerned, evidence is let in by respondent Nos.1 and 2 by producing Exts.A1 to A21. It is seen that the property was being cultivated by respondent Nos.1 and 2 and they were taking yield. The documents produced by respondent Nos.1 and 2 show that they were selling the agricultural produces collected from the suit property and realising the price thereof. Mutation of the property was effected in the name of respondent Nos.1 and 2. There is sufficient evidence to show that the gift was accepted and acted upon by respondent Nos.1 and 2 during the life time of donor. I must also bear in mind that so far as Ext.A1 is not an onerous gift, only slight evidence is required to prove its acceptance. Ext.A1 itself says that donor divested himself of all his right, title and interest in the suit property and conveyed right, title and possession to respondent Nos.1 and 2. Respondent Nos.1 and 2 were permitted to effect mutation of the property in their names and pay revenue which they have done as seen from the documents produced. The Supreme Court has held in Asokan v. Lakshmikutty [2008 (1) KLT 54] that even an averment in the gift deed regarding handing over possession is sufficient proof of acceptance by the donee. So far as Ext.A6, cancellation deed RSA No.713/2008 6 is concerned evidence shows that before it was executed the gift was accepted and acted upon by respondent Nos.1 and 2. There is no right reserved by donor in Ext.A1 to cancel it. It is not a conditional gift. Hence, except through court, Ext.A1 could not have been cancelled as held in Gopalakrishnan v. Rajamma [2006 (4) KLT 377]. Courts below have on these aspects found in favour of respondent Nos.1 and 2 on evidence and no substantial question of law is involved in that regard as well requiring admission of this Second Appeal and notice to the respondents. Resultantly, this Second Appeal fails. It is dismissed. I.A.No.1721 of 2008 will stand dismissed. THOMAS P.JOSEPH, Judge. cks