1. Present appeal is filed by the plaintiff aggrieved by the judgment and order dated 28.08 .2006 passed in R.A. No.207/ 2004 ( old No.17 /2000 ) on the file of the Principal District Judge, Ballari ( herein after referred to as ‘ first appellate Court’), by which the first appellate Court allowing the appeal filed by the respondents herein and set aside the judgment and decree dated 19 .01.2000 passed in O. S.No.281 / 1995 on the file of the Principal Senior Civil Judge ( Jr. Dn.), Ballari.

2. For the purpose of convenience, the parties are referred to by their original ranks before the trial Court.

3. The plaintiff had filed the above suit in O.S.No.281/ 1995 against the defendants for the relief of declaration that she is the absolute owner of the plaint schedule properties consisting of item No.1 being the house property bearing Door No.36 , Ward No. III, situated within the Kudithini village Panchayat, Ballari, measuring 22X38 ft. and item No.2 being the agricultural land bearing Sy. No.95 C/ 2 measuring 6 .44 acres situated at Kudithini village.

4. It is the case of the plaintiff that she is the only daughter of one Ganji Neelakanthappa and the defendants are the children of her senior uncle late Ganji Hanumanthappa. The said Ganji Neelakanthappa and Ganji Hanumanthappa were the sons of one Ganji Mudiyappa. The said Ganji Neelakantappa and Ganji Hanumanthappa partitioned the joint family properties during their lifetime in the year 1971 . In the said partition, the suit properties namely house property and the landed property both situated at Kudithini village, were allotted to the share of Ganji Neelakanthappa. Thus the said Ganji Neelakanthappa was the absolute owner of the suit schedule properties. The plaintiff being the only daughter of Ganji Neelakanthappa, he gifted item No.1 of the plaint suit schedule properties in her favour in terms of a registered gift deed dated 24 .05 .1983 . The defendants who are the cousin brothers and sisters of the plaintiff requested her to permit them to be in occupation of the item No.1 of suit properties as the plaintiff was moving with her husband from one place to another by virtue of his occupation being a government servant. Considering the request of the defendants, the plaintiff permitted them to occupy the item No.1 of the suit properties with an understanding that the defendants should vacate it as and when demanded by the plaintiff. Thus the defendants are in the permissive possession of the item No.1 of the suit properties. Upon the death of Ganiji Neelakanthappa as the plaintiff was the only legal heir left behind him item No.2 of the suit schedule properties devolved upon the plaintiff. During his lifetime Ganji Neelakanthappa was in actual possession and enjoyment of the suit properties and after demise the plaintiff continued to be in possession and enjoyment of the same. As the plaintiff was away from the village, she was receiving the assistance of the defendants in cultivating the suit land and during the harvest season she used to come and stay there. The defendants taking undue advantage of the plaintiff’s absence have started claiming the title to the suit properties adverse to the interest of the plaintiff. The defendants tried to get their names muted in the revenue records in respect of the item No.1 of the suit properties, constraining the plaintiff to cause issue of a notice to defendant No.6 and also to the village panchayath. The plaintiff called upon defendant No.6 to vacate and in handover the possession of the suit land to which there was evasive reply. The defendant No.2 had written a letter inviting the plaintiff and her husband for negotiation and for an amicable settlement. Since, the defendants denied the title of the plaintiff, she is constrained to file the present suit.

5. On service of summons, defendant Nos.1 , 3 , 4 and 5 remained absent and were placed ex parte, defendant Nos.2 and 6 appeared through their counsel.

6. The defendant No.2 filed the written statement admitting the relationship between the parties however, denied the other averments made in the plaint. It is denied that the plaintiff acquired the suit properties through deed of gift and inheritance as claimed in her plaint. It is denied that the father of the plaintiff had executed registered deed of gift as claimed by the plaintiff conveying the item No.1 of the suit properties in her favour. Alternatively it was also pleaded that Ganji Neelakanthappa had no right, title and interest over item No.1 the suit properties to gift the same to the plaintiff or to any other person, as there was no need of necessity to execute such a documents in favour of the plaintiff. It is claimed that the defendants are in exclusive possession and enjoyment of suit properties as absolute owners thereof, as the same had fallen to the share of their father Ganji Hanumanthappa in an oral partition that had taken place in the year 1971 and the father of the plaintiff was given 4 acres of land situated at Kudithini Village and another 2 acres of wet land situated at Daroji Village apart from cash and gold. That the plaintiff has sold out 4 acres of land to one Kristaiah of Kudithini Village in the year 1990 and she is in physical possession and cultivation of 2 acres situated at Daroji Village. That Ganji Neelakanthappa used to reside in a house belonging to one Somasetty Girijamma of Kudithini Village which is situated just opposite to the suit schedule house on a rental basis subsequent to the partition till 1985- 86 . That Ganji Hanumanthappa had renovated item No.1 the suit schedule properties by investing his money and had built a first floor in the year 1978 - 79 to the knowledge of the plaintiff. That the plaintiff has no right over the suit properties. That the father of the plaintiff was addicted to bad habits subsequent to death of Ganji Hanumanthappa and taking advantage of the same, plaintiff must have obtained the documents from him by misrepresentation and undue influence. Hence, sought for dismissal of the suit.

7. Defendant No.6 filed a memo adopting the written statement filed by the defendant No.2 .

8. Based on the pleadings, trial Court framed following issues and additional issue:

“1 ) Whether plaintiff proves that she is the absolute owner of plaint schedule item No. 1 and 2 properties

2) ) Whether defendant No. 2 proves that plaint schedule properties are fallen to the share of his father during partition held in 1971

3) ) Whether defendants prove that the father of second defendant has renovated item No. 1 of the schedule property in the year 1978 -79 by investing more than Rs.50 , 000 /- and built a first floor in the year 78 -79 to the knowledge of the plaintiff and a room in the year 1980 just by the side of item No. 1 premises by investing Rs.40 , 000 /-

4) ) Whether defendants prove that they are in possession and enjoyment of the property share allotted in the partition

5) ) Whether plaintiff is entitled for the relief of possession as prayed for

6) ) What order and decree

Additional Issue

1) ) Whether plaintiff proves that the defendants are in permissive possession of item No. 1 of plaint schedule property”

9. The plaintiff examined herself as PW1 and exhibited six documents marked as Exs.P 1 to P 6 . Defendants examined four witnesses as DW1 to DW4 and exhibited 11 documents as Exs.D1 to D11 .

10. The trial Court on appreciation of the evidence, decreed the suit of the plaintiff in part declaring her to be the absolute owner in respect of item No.1 of the plaint schedule properties and directed defendant Nos.1 to 6 to deliver peaceful vacant possession of the suit house of the plaintiff within two months from the date of the order. Insofar as item No.2 landed property, the suit of the plaintiff was dismissed.

11. Aggrieved by the aforesaid judgment and decree to the extent of decreeing the suit in respect of item No.1 of the suit properties, defendants filed regular appeal in R.A. No.207/ 2004 before the first appellate Court. It is necessary to note though the suit of the plaintiff in respect of item No.2 of the suit properties was dismissed, plaintiff has not chosen to file any appeal. The judgment and decree of dismissal in respect of the item No.2 of the suit schedule properties has thus attained finality. Considering the grounds urged by the defendants in the memorandum of appeal, the first appellate Court framed following points for its consideration:

“1 ) Whether the plaintiff/ respondent proves that the suit schedule item No.1 property viz., house property bearing door No. 36 , Ward No. III, situated within Kudithini village panchayat limits of Bellary taluk was fallen to the share of her father in the family partition which took place between her father and father of the defendants

2) Whether the plaintiff/ respondent proves that her father executed a gift deed, on 24 . 05 .1983 in her favour, in respect of item No.1 of schedule property

3) Whether the interference in the order of the trial Court is necessary

4) What order”

12. On re- appreciation of the evidence and considering the grounds urged by the defendants in the appeal, the first appellate Court allowed the appeal filed by the defendants setting aside the judgment and decree dated 19 .01 .2000 passed by the trial Court in O.S. No.281 / 1995 to the extent of item No.1 of the suit schedule properties. Aggrieved by the same, the plaintiff is before this Court in this second appeal.

13. This Court by order dated 30 .01 .2015 while admitting this appeal formulated the following substantial question of law for its consideration:

“Whether the first appellate Court was justified in reversing the finding of the lower appellate Court so far as title of the plaintiff to the suit schedule item No.1 pursuant to the registered gift deed 24.05 .1983”

14. Reiterating the grounds urged in the memorandum of appeal, learned counsel for the appellant submitted that admittedly the suit schedule properties were the joint family properties and were subject matter of the oral partition of the year 1971 in which all the joint family properties were divided equally between Hanumanthappa and Neelakanthappa. Apart from landed properties, property bearing door No.36 is the only house property which was the joint family property. Except that there was no other house property. Alongwith the other landed properties, the house property was also divided between Hanumanthappa and Neelakantappa. Thus by virtue of this oral partition, Hanumanthappa had become entitled to the item No.1 of the suit properties which he had conveyed in favour of his only daughter, the plaintiff herein under the registered deed of gift at Ex.P 1 .

15. That the first appellate Court without referring to the pleadings in the written statement, erroneously held that there was denial of execution of the gift deed requiring plaintiff to prove its execution in terms of Section 68 of the Evidence Act which finding is against the principles of law applicable thereof. Hence, she submits the substantial question of law is required to be answered in favour of the plaintiff. She has relied upon the judgment of this Court in the case of Kumbara Narasimhappa vs. Lakkanna and another reported in AIR 1959 KAR 148, which was followed and reiterated in the case of Sri. Sannaboraiah @ Boraiah vs. Konana Mallaiah and another reported in 2009 (3) KCCR 2251 [LQ/KarHC/2009/467] and also in the case of Govindbhai Chhotabhai Patel and others vs. Patel Ramanbhai Mathurbhai reported in (2020) 16 SCC 255 [LQ/SC/2019/1472 ;] ">(2020) 16 SCC 255 [LQ/SC/2019/1472 ;] [LQ/SC/2019/1472 ;] ">(2020) 16 SCC 255 [LQ/SC/2019/1472 ;] ">(2020) 16 SCC 255 [LQ/SC/2019/1472 ;] [LQ/SC/2019/1472 ;] [LQ/SC/2019/1472 ;] .

16. On the other hand, Sri. B.Chidananda, learned counsel for the respondents/ defendants justifying the order passed by the first appellate Court submitted that in the absence of proof with regard to the partition in which item No.1 of the suit properties having been allotted to the share of Neelkanthappa, plaintiff cannot claim any right thereof. Referring to paragraph 8 of the written statement, learned counsel submitted that there is a specific denial with regard to execution of deed of gift- Ex.P 1 requiring its proof in terms of Section 68 of the Evidence Act. He further submitted that when the said document is used against the party, the same has to be proved in the manner known to law in terms of Section 68 of the Evidence Act and that not having been complied, the plaintiff cannot succeed in the suit. He relied upon the judgment of the Apex Court in the case of Rosammal Issetheenammal Fernandez (dead) by LRs. and others vs. Joosa Mariyan Fernandez and others reported in AIR 2000 SC 2857 [LQ/SC/2000/1196] and Sri. Sannaboraiah @ Boraiah vs. Konana Mallaiah and another reported in 2009 (3) KCCR 2251. [LQ/KarHC/2009/467]

17. Heard the learned counsel for the parties. Perused the records.

18. The relationship between the parties is admitted. It is also admitted that there was an oral partition in the year 1971 in which certain joint family properties being house property and landed properties were partitioned by Hanumanthappa and Neelakanthappa. As regards landed properties are concerned, it is borne out of records that Hanumanthappa was allotted an extent of about 6 acres 44 cents while Neelakanthappa was allotted an equal extent of land. It is also admitted fact that the plaintiff after demise of her father having inherited his share of the landed property has sold an extent of 4 acres of the land in the year 1990 and even according to the defendant, she continues to be in possession of about 2 acres of land. Therefore, the issue with regard to allotment of equal share in the landed properties is an admitted fact. Though the plaintiff had claimed share in the item No.2 of the suit properties being the landed property, she not having been able to specifically identify her share of land therein, the trial Court declined to grant relief in that regard. Needless to reiterate plaintiff having chosen not to challenge that finding, the same has attained finality. The only issue in this appeal is with regard to the house property.

19. The trial Court has referred to the deposition of DW1 in which he has admitted that the house property was also a joint family property and Neelakanthappa had joint right over the said property and that during the partition, as per the decision of the elders of the family, since he was not having a male child, the said property was not allotted to his share. Considering the tenor of the aforesaid deposition and taking into consideration the other facts and circumstances of the matter, the trial Court arrived at the conclusion that preponderance of probabilities suggest that there was equal partition of all the properties including the house property. Therefore, held that Neelakanthappa who was also having share in the house property had conveyed his right, title and interest in favour of plaintiff in terms of the deed of gift dated 24 .05.1983 at Ex.P 1 . Accordingly, partly decreed the suit in favour of the plaintiff. Aggrieved by the same, defendants approached the first appellate Court raising various contentions including the very right, title and interest of Neelakanthappa to execute the said deed of gift- Ex.P 1 .

20. The first appellate Court considering the pleadings and evidence of the parties in its discussions at paragraphs 15 and 18 came to the conclusion that the plaintiff has failed to prove that her father Neelakanathappa had been given any share in the house property justifying his execution of deed of gift- Ex.P 1 in favour of the plaintiff. The first appellate Court also observed that though Neelakanthappa had executed gift deed in the year 1983, the same had not seen the light of the day till 1993 . Further, the first appellate Court also taken into consideration of the fact that the revenue records in respect of the house property continued to be in the name of Hanumanthappa and the same not having been effected in the name of Neelakanathappa, the presumption was that he was not allotted any share in the said property. As regards the proof under Section 68 of the Evidence Act, the first appellate Court has held that plaintiff ought to have proved the gift- Ex.P1 as mandatorily contemplated under the provision of Section 68 of the Evidence Act by producing cogent evidence in the nature of examining one of the witnesses and that not having been done, the plaintiff has failed to establish the execution of the deed of gift-Ex.P 1 .

21. Section 68 of the Evidence Act, 1872 provides as under:

“68 . Proof of execution of document required by law to be attested.— If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least 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:

[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]”

22. Proviso to the said section, makes it clear that it is not necessary to call an attesting witness in proof of execution of any document which has been registered in accordance with the provisions of Indian Registration Act unless its execution by the person by whom it purports to have been executed is “specifically denied”. What is required therefore is to see if the defendants have specifically denied the execution of the deed of gift- Ex.P 1 .

23. Learned counsel for the appellant referred to paragraph 4 of the written statement which is as under:

“4 . The allegations made in para 4 of the plaint that during the said family partition, the plaintiff’s father got the plaint schedule mentioned properties among others towards his share, during the l ife time of her father, he gifted the item No. 1 of the plaint schedule mentioned property i. e., the house bearing door No. 36 , Ward No. III, situates at Kudithini village in favour of the plaintiff under registered gift deed under vide document No.901 /3 -84 dated 24 .05 . 1983 at Sub-Registrar Office, Bellary is hereby denied as absolutely false. To the knowledge of this defendant, the father of the plaintiff has not at all executed any such documents either in favour of the plaintiff or anybody. Even otherwise he has no right, title or interest whatsoever on the said property to gift the sale either to plaintiff or to any person. Apart from that there was no need, necessity or occasion to execute the gift deed by the father of the plaintiff in favour of the plaintiff. The defendant reliably learnt that the alleged gift deed is forges, fabricated, created and invented by the plaintiff with the assistance of her supporters and the persons who are inimically disposed towards this defendant and others. Therefore the plaintiff is called upon to prove the same. There is no iota of truth in the allegations. Hence the alleged gift deed either it must be forged or fabricated or it must have obtained by fraud and misrepresentation, with a view to knock off the property and to cause wrongful loss to this defendant and others and to make wrongful gain by the plaintiff. That is the reason she has kept quite till the death of her father. In case any gift deed as such, she would have taken steps immediately. No prudent man will keep quite for more than 13 years in case the property is really acquired from the third parties.”

24. While counsel for the defendants referred to paragraph 8 of the written statement to contend that the same amounts to specific denial; paragraph 8 of the written statement is extracted as under:

"8 . The averments and allegations made in para 8 of the plaint that the plaintiff by virtue of registered gift deed referred above and by virtue of law of inheritency she become the absolute owner of both the properties is hereby denied specifically as false, untruth and baseless. This defendant has not received any lawyer’s notice as stated in the said paragraph. He has not aware of the notice contents alleged to have sent to defendant No.6 and panchayatboard. Further allegations made in the said paragraph that the defendants prevented the plaintiff from entering into the said land on 10 .08 . 1995 and on that day they have challenged the rights of the plaintiff in respect of the suit properties is specifically denied as false. The plaintiff never made any such i l legal attempt to enter upon the schedule property along with her husband, hence the question of preventing them by this defendant and others does not arise. The plaintiff has made reckless allegations against this defendant and others without anticipating its consequences. It is false to allege that the plaintiff has lodged the oral complaint to the police, who in turn have informed her to approach the court on the ground that it is a civil dispute. The further allegations made in the said paragraph as well as in para 9 of are all false and invented by the plaintiff. No cause of action arose as alleged and avered in para 10 of the plaint. The plaintiff is not at all entitled any reliefs as sought for in para 12 of the plaint.

25. A comprehensive perusal of paragraphs 4 and 8 as well as the entire written statement, it is clear that the defendants have made general denial with regard to execution of the deed of gift-Ex.P 1 . While defendants have also taken up a contention that the said document must have been obtained by playing fraud and misrepresentation and also taking advantage of the bad vices of the late Neelakanthappa.

26. Specific denial ought to be in the nature of denial of very execution of the document by the executant, namely denial of very affixing the signature, denial of admission of the execution before the concerned officer. Such denial is not forthcoming in the entire written statement.

27. The judgments relied upon by the learned counsel for the parties hereinabove, deal with this specific requirement of denial to press into service of provision of Section 68 of the Evidence Act. The Apex Court in the case of Govindbhai referred to hereinabove, at paragraphs 22 and 29 has held as under:

“22 . The other material question is whether the appellants have specifically denied the execution of the gift deed in terms of proviso to Section 68 of the Evidence Act, to make it mandatory for the defendant to examine one of the attesting witnesses to prove the Gift deed in his favour.

29. The High Court held that the appellants have not led any evidence that signature of their father on the gift deed was forged as neither the specimen signature nor writings of their father for the purpose of comparing the disputed signature on the gift deed have been attempted. There is no report of an expert in respect of signatures of the Donor on the gift deed nor any request was made for sending the document to the Forensic Science Laboratory. The High Court held as under:

“67 . In my view, the plaintiffs have miserably failed to prove any forgery. If it is the case of the plaintiffs that the signature of their father on the disputed gift deed is forged, then the burden is on them to establish and prove by leading cogent evidence that the signature is forged by another. A mere doubt or assertion or an allegation of forgery by itself is not sufficient to even prima facie draw an inference of fraud. The plaintiffs tried to rely upon the ' will' said to have been executed by their late father just two days before his demise in the year 2001 . One of the cousins of the plaintiffs took out the ' will' out of the blue and handed over to the plaintiffs. The plaintiffs tried to capitalize on this ' will' because in the said ' will', there is a thumb impression of the father of the plaintiffs i. e. the testator. The plaintiffs thereby tried to create a doubt in the mind of the Courts below that the father was i l literate and was unable to put his signature. However, if the plaintiffs wanted to rely upon the ' will', they should have produced the original and proved the same in accordance with law by examining one of the attesting witnesses to the said ' will'. The ' will' has not even been exhibited, and therefore, there is no question of looking into the same. The entire approach of the Trial Court could be said to be erroneous and has led to a serious miscarriage of justice. I am of the view that the plaintiffs have practically led no evidence even to prima facie create a doubt that the signature of their father on the gift deed is forged. The plaintiffs could have produced the specimen signature or writings of their father, if any, for the purpose of comparing the disputed signature on the gift deed. The Trial Court could have been asked to seek an opinion of an expert in this regard by sending the document to the Forensic Science Laboratory. Nothing of this sort was done. All that has been asserted in the evidence is that the father had no good reason to execute the gift deed in favour of the defendant, more particularly, when the sons were taking good care of their father. This hardly could be termed as evidence with regard to fraud or forgery. The plaintiffs have not even pleaded or deposed that their father was i l literate and was not able to put his signature. If the evidence on record is looked into, then the plaintiffs have in substance just expressed doubts as regards the signature of their father.”

28. This Court in the case of Kumbara Narasimhappa supra at paragraphs 2 and 3 has held as under:

“2 . The main contention on behalf of the appellant is that there is no specific denial of the execution of the mortgage bond and hence it was not incumbent on the plaintiff to prove that document by calling an attesting witness. As a result of this contest, three subsidiary questions arise for consideration. Section 68 of the Evidence Act requires that one attesting witness at least has to be called for the purpose of proving the execution of a document which is required by law to be attested.

It is indisputable that a mortgage bond is such a document, vide Section 59 of the Transfer of Property Act. But the proviso to Section 68 of the Evidence Act exempts the necessity of calling an attesting witness to prove the execution of such a document ( not being a will) which has been registered ' ' unless its execution by the person by whom it purports to have been executed is specifically denied". In the present case, defendant 1 who is the mortgagor has not put in any written statement, with the result that he cannot be deemed to have specifically denied the execution of the document.

The contention against the document, if any, is only raised by defendant 2 who is a subsequent mortgagee. The first question to be considered therefore, is whether the denial contemplated in the proviso is one that should be made by the executant alone or whether it could as well be done by some other defendant. The first appellate Court has, however, held that if any of the defendants to a suit denies the execution, the plaintiff must produce one of the attesting witnesses as required by Section 68 . All that the proviso requires in respect of the denial is that it should be a specific denial of the execution of the document.

There is nothing to indicate that the denial should be one made by the executant. But the denial should be to the extent that the person by whom the document purports to have been executed has not executed it. The words 'by the person by whom it purports to have been executed' go with the preceding word ' execution' and not with the words 'specifically denied'. What has to be specifically denied is such an execution.

It thus follows that the denial need not be necessarily by the executant and that it may be by any one of the defendants interested in the denial of the execution of the document. A similar view has been taken by the Nagpur High Court in the case of Zaharnl Hussain v. Mahadeo Ramji, AIR 1949 Nag. 149 . The words 'specifically denied' in Section 68 evidently moan specifically denied by the party against whom the document is sought to be used & not by the executant alone. The denial, there- fore, has to come from the party who is entitled to dispute or is interested in disputing its execution. Hence the denial, if any, by defendant 2 is as good as denial by the mortgagor himself for the purpose of Section 68 .

3. The next point for consideration is what amounts to a specific denial and whether there is any such denial in this case by defendant 2. The learned Advocate for the appellant contends that a mere denial of the mortgage transaction is not enough and that there must be specific words to convey that the party denies the execution by the executant and also its attestation by the attesters. As against this, the learned Advocate for respondent 2 urges that all that is needed is that the party should indicate that he does not admit the mortgage.

Looking to the wording of the proviso, it is apparent that what the law requires is not a mere denial but a specific denial, which means, not only that the denial must be in express terms but that it should be definite and unambiguous. What has to be specifically denied is the execution of the document. Other contentions not necessarily and distinctly referring to the execution of the document by the alleged executant cannot be covered by the denial contemplated in this proviso. Such contentions may be, for instance, in respect of the consideration for the document or the sham or colourable nature of the transaction evidenced by the document.”

29. Following the said judgment, coordinate Bench of this Court in the case of Sannaboraiah supra at paragraphs 13 and 15 has held as under:

“13 . The question for determination therefore is as to whether in the instant case the defendants have specifically denied the execution of the document by the alleged donor. The Learned Counsel for the plaintiff placed reliance on the decision in the case of Kumbara Narasimhappa v. Lakkanna and Another, AIR 1959 MYS. 148 to point out that this Court has held that even the denial of the genuineness of the document would not amount to specific denial of the execution of the document and if the manner of proof as contemplated under Section 68 is to be imposed on the plaintiff, there should be a specific denial of the execution of the document itself. In this background the written statement filed is referred, to point out that the nature of denial does not amount to specific denial. Reference is also made to the decision in the case of Adangan Puravan Assankutty's Daughter Kadiya Umma and Ors v. Adangan Puravan Kutty's Son Mayan Kutty and Ors. AIR 1992 KERALA 261 and to the case of Chuttanlal v. Shanthiprakash & Ors. AIR 1981 ALLAHABAD 50, wherein similar view is taken. On the other hand, Learned Counsel for the defendant has relied on the decision of the Hon' ble Supreme Court in the case of Ramsarup Gupta (Dead) by Lrs v. Bishun Narain Inter College and Ors. AIR 1987 SC 1242 [LQ/SC/1987/362] and on the decision of this court in the case of G. Aswathanarayana Setty v. M. N. Seshagiri Rao, ILR 1987 KAR 3041 . At the outset, it is to be stated that there can be no quarrel with regard to the position of law relating to the construction of the pleadings as contemplated underOrder VI → "> Order VI of the Civil Procedure Code and as enunciated in the decisions referred to by the Learned Counsel for the defendants which is referred supra. In the present facts, the said decisions would however be of no assistance. That apart, both the Learned Counsel have also referred toOrder VIII → Rule 3 and 5 → "> Order VIII Rule 3 and 5 of the Civil Procedure Code to contend with regard to specific denial. Keeping that in view, if the written statement in the instant case is perused, the reading of the entire written statement as a whole would no doubt indicate that the defendants have denied the case of the plaintiff wherein the plaintiff has claimed title to the property under a registered gift deed and it is in that background the issue No.1 extracted above has been framed casting the burden on the plaintiff to prove his title to the property. However, the position does not rest at that, inasmuch as in the instant case the situation is that the denial of the case putforth by the plaintiff on all other aspects alone is not sufficient, but what is to be considered is as to whether the denial in the written statement could be considered as the specific denial of the execution of the suit document which is a compulsorily attestable document, keeping in view the proviso to Section 68 of the Evidence Act, being the question of law raised for consideration in this appeal.

15. The Learned Counsel would further refer to the written statement to indicate that at several places, i t has been stated as 'alleged gift deed' and therefore the same amounts to denial. On noticing the said contention, a reference to the view expressed in the case of Kumbara Narasimhappa (Supra) would indicate that similar defence in the said case was held as not being a specific denial of the execution of the document for the purpose of Section 68 of the Evidence Act. It has been emphasised in the said judgment that the execution of the document should be specifically denied so as to require the plaintiff to prove the execution itself by examining the attesting witness. Though the learned counsel for the defendant attempted to distinguish the said case by contending that the said view was expressed in a situation wherein the passing of consideration alone has been denied, I am unable to accede to the said contention since in the said case apart from denying the passing of consideration, it was also contended that the mortgage deed must have been got up by the plaintiff in collusion for defeating the claim of the defendant and in fact in the said case, it was also stated that the said document is not genuine. In my view, such averment in the said case could be read as a contention to the effect that the document was concocted. Even after noticing such contention, the Learned Judge of this Court has stated that a denial could be considered as specific denial only if the execution of the document is denied and the said contentions were not accepted as specific denial. Similar is the situation in the other two decisions cited by the Learned Counsel for the plaintiff. Keeping this in view even though in the instant case the defendant has used the words 'concocted' and 'alleged' while referring to the gift deed, that alone would not indicate that the execution itself has been denied. Further while considering the said manner of denial as contended, what also requires to be noticed in the facts of the instant case is that, the defendants even prior to the filing of the suit, had raised a contention before the competent authority that there is violation of conditions of grant in view of the alienation during the prohibited period. That apart, it is also contended that father of the defendant was not competent to dispose the property by gift since the upset price was paid out of the joint family income and he was not the absolute owner. No doubt, the legal position is that not only alternate but contradicting contentions could also be urged in the written statement. However, in the instant case, the reading of the written statement does not indicate that the execution of the gift deed itself has been denied at the outset, and the other contentions have been urged as alternate contentions in the event of the execution of the document being proved. Therefore, on the facts of the present case, keeping in view the law laid down by this court, the only conclusion that could be arrived at is that the execution of the gift deed has not been specifically denied and as such, in the instant case, the plaintiff cannot be non-suited by holding that the gift deed is not proved in view of the non- examination of the attesting witness.”

30. Read in the light of the aforesaid judgments of the Apex Court and of this Court, it can be said that there is no “ specific denial by the defendants with respect to the execution of Gift Deed- Ex.D1 ”.

31. As strenuously contended by the learned counsel for the respondent, averments in paragraph 8 of the written statement to be of the specific denial, it hardly justifies the requirement of denial contemplated under Section 68 of the Evidence Act. In that view of the matter, the reasoning given by the first appellate Court cannot be countenanced. As regards the right of Neelakanthappa to execute the deed of gift-Ex.P 1 as already noted from the totality of circumstance of the matter and the deposition of DW1, more particularly his answer to the following question in the deposition recorded on 07 .09.1999:

“ Question: Do you say whether late Neelakanthappa had his right in the said house property

Answer: Before to division, he had joint right in the suit property, but during partition effected, the elders of the village mediated that as late Neelakantappa had no male issues and he had only one daughter to whom my father had arranged marriage at her 13 t h age. Therefore, it was resolved that the entire house property could be given to the share of my father.”

probabalizes the claim of the plaintiff that her father had equal half share in the house property.

32. It is not in dispute that item No.1 of the suit properties which measures 22 ’ x 38 ’ has an additional area of about 18 ’ x 38 ’ on its eastern side which is still vacant. Therefore, an inference can be drawn that this property was divided equally between Hanumanthappa and Neelakanthappa as was done in the other landed properties. Defendants having specifically taken up the contention of this property was exclusively allotted to the share of Hanumanthappa as Neelakanthappa did not have male issue have not led any evidence to justify their stand. Therefore, the first appellate Court was in error to come to the conclusion that this property was not subjected to partition. It is also to be noted that on failure of defendants to prove their claim of construction and renovation of house in the year 1978 - 79 and 1980 , the trial Court has answered issue No.3 in the negative.

33. Preponderance of probabilities weigh in favour of the plaintiff supported by the registered document- the gift deed at Ex.P 1 not having been specifically denied as required under the law, the substantial question of law is answered in favour of the plaintiff.

Appeal is allowed.

The judgment and decree dated 28.08 .2006 passed in R.A. No.207/ 2004 ( old No.17 / 2000 ) on the file of the Principal District Judge, Ballari is set aside and the judgment and decree dated 19 .01 .2000 passed in O. S.No.281 /1995 on the file of the Principal Senior Civil Judge ( Jr. Dn.), Ballari is confirmed.