VELAYUDHAN ASSARI Vs. MADHAVAN PILLAI

JUDGEMENT

(1.) AN obstructor succeeded in two courts below in his resistance against delivery of a property covered by the decree. The obstructor is none other than the brother of the first judgment -debtor. Other judgment -debtors are the children of the first judgment -debtor. This second appeal is by the decree -holder. The appellant obtained the decree for redemption of two usufructuary mortgages in respect of a land having thirty eight cents in extent. All the steps so far adopted by the decree holder to get possession of the mortgaged property did not fructify. The turn in the fight is consequent on the obstruction made when the Amin went to effect delivery of possession of the property. Execution court upheld the obstructor's claim in regard to thirty one cents, but rejected the claim in regard to the balance area of seven cents on which a building is situate. Bath the abstractor and the decree -holder challenged the said order of the execution court. It was the obstructor who filed the appeal in the court below. Then the decree -holder preferred cross -objections in that appeal. The lower appellate court confirmed the order subject one modification i e, the execution court was directed to refer the claim of the obstructor that he is a kudikidappukaran to the Land Tribunal. Hence this second appeal.

(2.) THE decree for redemption passed by the trial court against the judgment -debtors was confirmed in appeal. Two among the judgment -debtors raised objections during execution proceedings that the decree is void as against them on the ground that they were wrongly shown as minors in the suit. Those objections were overruled against which a Civil Revision Petition was filed in this Court, but that revision was also dismissed. Then another judgment -debtor filed a suit challenging the decree as having fraudulently obtained in collusion between his mother (first judgment -debtor) and the decree -holder. That strategy also did not succeed. Ultimately the decree -holder reached the stage when the court ordered delivery of property. It was then that the respondent herein who is brother of the first judgment -debtor, obstructed. The obstruction is based on Ext. B1 mortgage deed dated 1 -2 -1965, purported to have been executed by the first judgment -debtor on her behalf as well as on behalf of her minor children. The decree was passed by the trial court on 17 -10 -1975. An alternate contention was raised by the obstructor that he is a kudikidappukaran in respect of another building situate in the property described in Ext.B1. Even after upholding the obstructor's right over thirty one cents, the lower appellate court wanted to pursue the matter further and hence remitted the case to the execution court directing it to refer the question of kudikidappu to the Land Tribunal.

(3.) EVEN the counsel for the respondent found it difficult to support the reasoning of the lower appellate court and hence he tried to make out a different reason for supporting the conclusion. According to the counsel, there was no specific denial of the execution of Ext. B1 and hence Sec. 68 cannot be called in assistance. He made reference to another portion of the observations contained in the decision in Kannan Nambiar's case (cited supra) to bolster up the contention. That portion reads as follows: 'specific' means with exactness, precision in a definite manner. It is clear, that something more is required to connote specific denial in juxtaposition to general denial. Specific denial of execution of gift is an unambiguous and categorical statement that the donor did not execute the document. It means not only that the denial must be in express terms but that it should be unqualified, manifest and explicit. It should be certain and definite denial of execution". In that case, validity of a gift deed was challenged and the defendant averred that the document cannot be used in evidence as no attesting witness was called to prove it, The party who raised the contention further averred in the written statement that the gift deed executed is not true and valid, nor is it binding on him and that there was no necessity for the donor to -execute a gift deed, and that execution of the gift deed was without exercising the free will and volition of the executant. The Division Bench, upon those averments, and also on the evidence found that there was no specific denial of execution of the gift deed. But the position here is different. The appellant in his application for removal of obstruction has stated in clear terms in paragraph six thereof that the document (Ext. B1) is a concocted one, and that it was not executed by the first defendant (first judgment -debtor) and further that the document was created fraudulently by defendants two and three. Can a denial be more specific than the manner in which it has been done by the appellant by using the aforesaid words Learned counsel for the respondent argued that since there is no contention that the other judgment -debtors did not execute the gift deed, it cannot be taken that there is an absolute and full fledged denial of its execution. This argument is based on the fact that in Ext. B1 the first judgment -debtor was acting as guardian of her minor children, besides her individual capacity. The only signatory in the gift, deed is the first judgment -debtor. The person who executed the document is the one who signed it Though it can be said that those others who were represented in document are also transferors, the document was executed by the person Who' affixed the signature therein as the executant. So the argument does not merit acceptance. There is specific denial of the execution of the gift deed.