Case Note & Summary
The present appeal arises from a second appeal before the Gujarat High Court concerning a gift deed executed by Chhotabhai Ashabhai Patel (donor) on November 15, 1977, in favour of Ramanbhai Mathurbhai Patel (donee). The appellants, sons of the donor, filed a suit challenging the gift deed on the grounds that it was fabricated and that the suit property was ancestral, thus the donor had no right to execute the gift deed. The trial court and first appellate court decreed the suit in favour of the appellants, holding that the gift deed was not proved as required under Section 68 of the Indian Evidence Act, 1872, and that the property was ancestral. The High Court, in second appeal, reversed these findings, holding that the execution of the gift deed was not specifically denied, so no attesting witness was required, and that the property was self-acquired in the hands of the donor as it devolved upon him under a Will from his father. The Supreme Court considered whether the High Court exceeded its jurisdiction in second appeal and whether the property was ancestral. The Court noted that the appellants admitted that their grandfather purchased the property and that it came to the donor under a Will. Relying on C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar, the Court held that property bequeathed by a Mitakshara father to his son under a Will is self-acquired in the hands of the donee, not ancestral. The Court also held that since execution of the gift deed was not specifically denied, the donee was not required to examine an attesting witness. The Supreme Court dismissed the appeal, affirming the High Court's judgment and upholding the validity of the gift deed.
Headnote
A) Evidence Act - Section 68 - Proof of Gift Deed - Attesting Witness - Where execution of gift deed is not specifically denied in the plaint, it is not necessary for the donee to examine an attesting witness under the proviso to Section 68 of the Indian Evidence Act, 1872 - The procedural disability for non-compliance cannot be used by the plaintiff to succeed on weakness of defendant's case (Paras 6, 92). B) Hindu Law - Ancestral vs Self-Acquired Property - Testamentary Disposition - Property bequeathed by a Mitakshara father to his son under a Will is self-acquired in the hands of the donee and does not become ancestral property - The son takes by devise, not by descent, and has full power of alienation - C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar, AIR 1953 SC 495 followed (Paras 12-15). C) Hindu Succession Act - Section 8 - Devolution of Property - Where property is self-acquired of the father, it devolves on his sons in their individual capacity, not as coparcenary property - Son's son cannot claim right in such property (Paras 105, 108).
Issue of Consideration
Whether the suit property was ancestral in the hands of the donor, and whether the gift deed was validly executed and proved under Section 68 of the Indian Evidence Act, 1872.
Final Decision
The Supreme Court dismissed the appeal, affirming the High Court's judgment and decree, holding that the gift deed was valid and the property was self-acquired in the hands of the donor.
Law Points
- Section 68 Indian Evidence Act
- 1872
- gift deed
- attesting witness
- ancestral property
- self-acquired property
- Mitakshara law
- testamentary disposition
- Hindu Succession Act
- 1956
- Section 8
