Order xli rule 11

ganesh kumar (Querist) 07 October 2011 This query is : Resolved
Please tell me whether the examination of even one of the attesting witnesses is essential for proving the execution part of the registered gift Deed. And in the absence of any witness to prove the execution of the registered gift deed what will be the effect of the same.

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kuldeep kumar (Expert) 07 October 2011
HOW MANY WITNESS ATTESTED DOCUMENT.HOW MANY ALIVE AND HOW MANY WILLING TO DEPOSE AND HOW MANY FAILING TO PROVE.IN CASE ANY WITNESS FAILS TO PROVE AND OTHER WITNESS R AVAILABLE AND FOR REASONS BEST KNOWN THEY R NOT CALLED THEN U CAN NOT TAKE BENIFIT OF SECTION 71 EVIDENCE ACT.

ajay sethi (Expert) 07 October 2011
if plaintiff denies execution of gift deed then you will have to examine attesting witness to prove document was in fact executed .

if no witness are examined gift deed would not be proved .

REGISTERED GIFT DEED — DENIAL OF EXECUTION

Registered gift deed — Denial of execution of, by person by whom it purports to have been executed — Burden of proof of execution is on party relying upon deed and burden has to be discharged by calling at least one of attesting witnesses to prove execution — Where burden has not been discharged, deed cannot be used as evidence of gift. Held: Section 123 of the Transfer of Property Act, requires the specific mode in the matter of execution of gift of immoveable property. That gift of immoveable property can be made only by the execution of the registered deed attested by two witnesses. .... The law prescribes the specific mode that it must be effected by a registered instrument or deed signed by or on behalf of the donor and attested by at least two witnesses. Section 68 of the Indian Evidence Act, 1972 required the production of at least one of the attesting witness to prove its execution. Compliance with the provisions of Section 68 or 69 of the Indian Evidence Act is necessary to make gift deed admissible in evidence. .... None of the attesting witnesses of the deed has been examined in this case to prove the execution thereof. The deed dated 29-11-1960 could not be used as evidence and its execution cannot be said to have been proved. — Smt. Flora Margaret v A. Larwence, 2000(6) Kar. LJ. 27B.

prabhakar singh (Expert) 07 October 2011

Evidence Act, 1872, Section 68, Transfer of Property Act, 1882, Section 123 - Gift deed - Execution - Proof - Plaintiff denied execution of gift deed dubbing it as result of fraud - None of the attesting witnesses examined to prove execution - Mere admission of signatures on the document does not amount to admission of execution of a document - Gift deed thus not proved

prabhakar singh (Expert) 07 October 2011
Transfer of Property Act, 1882, Section 3 - Attest - Essential conditions of a valid attestation are : (1) Two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature, (2) with a view to attest or to bear witness to this fact each of them has signed the instrument.