KBP 7519-08.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7519 OF 2008 Udayavara Raghavendra Acharya ..Petitioner Vs. Krishan Jathan and anr. ..Respondents WITH WRIT PETITION NO.7520 OF 2008 Udayavara Raghavendra Acharya ..Petitioner Vs. S.Manmohansingh Bedi and anr. ..Respondents WITH WRIT PETITION NO.7521 OF 2008 Udayavara Raghavendra Acharya ..Petitioner Vs. S.Ajit Singh Bedi and ors. ..Respondents ......... Appearances: [W.P. NO.7519 AND 7521 OF 2008] Mr.R.M.Nakhwa i/b. Mr.Vasant Dhawan, for petitioner. Mr.P.K.Dhakephalkar, Senior Counsel i/b. Mr.Jaydeep S.Deo, for respondent no.1. [W.P.7520 OF 2008] Mr.R.M.Nakhwa i/b.Mr.Vasant Dhawan, for petitioner. Mr.P.K.Dhakephalkar, Senior Counsel i/b.Mr.Jaydeep Deo, for respondent no. 2-A. ......... KBP 7519-08.sxw 2 CORAM : A.S.OKA, J.. DATE : 18 th August, 2009. P.C. : 1] Heard learned counsel appearing for the petitioners and respondents. 2] The petitioners are the original plaintiffs. The limited issue involved in this writ petition under Article 227 of the Constitution of India is whether the gift deed on which the petitioners plaintiffs are placing reliance has been proved in accordance with law of evidence. In the impugned order, the learned trial Judge has directed that the gift deed shall be marked as Article “X”. The learned Judge rejected the objection raised by the respondents – defendants that the said document was not properly stamped. The issue before the learned trial Judge was whether there is compliance of Section 68 of the Indian Evidence Act, 1872 and whether the proviso to Section 68 can be invoked. 3] In view of the decision of the Full Bench of this Court, as the evidence is being led by producing affidavits, it was necessary for the trial court to make proper adjudication on the question whether the gift deed is duly proved. The law on the aspect of proof of such documents has been laid down by the Apex Court in the case of Rosammal Issetheenammal Fernandez Vs.Joosa Mariy An Fernandez and others [(2002)7SCC 189] as well as in the case of K.Laxmanan Vs.Thekkayil Padmini and ors.[(2009)1 SCC 354]. The submission of the learned counsel appearing for the respondents based on a decision of the erstwhile Nagpur High Court is that the specific denial contemplated by the proviso to Section 68 is not the denial by the alleged executant but a specific denial by a person against whom document is sought to be proved. The said submission is not inconsistent with the law laid down by the Apex Court in the aforesaid decisions. Perusal of the impugned order shows that the learned Judge has not adverted to the KBP 7519-08.sxw 3 pleadings and especially to the written statement of the respondents defendants. The applicability of the proviso to Section 68 will depend on the question whether there is a specific denial by the respondent defendant as contemplated by the proviso to Section 68 of the Indian Evidence Act, 1872. In this view of the matter, I am of the view that the issue regarding proof of document namely the gift deed needs to be reconsidered by the trial Court in the light of aforesaid decisions of the Apex Court. 4] In the circumstances, pass the following order: (a) The impugned judgments and orders only to the extent to which it deal with the issue of proof of gift deed are quashed and set aside. (b) The learned trial Judge will reexamine the issue of the proof of gift-deed in the light of the law down by the Apex Court. (c) After examining the pleadings and other material on record, the learned trial Judge will decide the said question afresh. (d) The writ petitions are disposed of accordingly. ( A.S.OKA, J. )