[Cites 8, Cited by 0]
Bombay High Court
Mrs Sheela Mohan Mathrani Since ... vs Chandan Mohan Mathrani on 6 March, 2026
Author: N. J. Jamadar
Bench: N. J. Jamadar
2026:BHC-AS:11154
SA-45-26.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 45 OF 2026
Sheela Mohan Mathrani
Since decd. Through LR
Kavita Mohan Mathrani ..Appellant
Versus
Chandan Mohan Mathrani & Ors. ...Respondents
WITH
INTERIM APPLICATION NO. 180 OF 2026
IN
SECOND APPEAL NO. 45 OF 2026
Mr. Jaydeep Deo a/w. Mr. Onkar Gawade, for appellant
Mr. Yuvraj Narvankar, for the Respondent No. 1.
CORAM : N. J. JAMADAR, J.
RESERVED ON : 21st JANUARY 2026
PRONOUNCED ON : 06th MARCH 2026
ORDER:
1. This Second Appeal is directed against a judgment and
decree dated 21st November, 2025 passed by the learned District
Judge, Pune in Regular Civil Appeal No. 254/2024, whereby the
appeal preferred by the appellant-plaintiff against a decree dated
03rd December, 2024, passed by the learned Civil Judge, Pune,
in Regular Civil Suit No. 223/2018, thereby dismissing the suit,
came to be dismissed by affirming the decree passed by the Trial
Court.
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2. Smt. Sheela - the deceased-plaintiff, was the wife of Mr.
Mohanlal (Plaintiff 1-A) and the mother of Ms. Kavita (Plaintiff 1-
B) and Mr. Chandan (D-1). The deceased-plaintiff was the owner
of Plot No. 547 with a bungalow standing thereon situated at
Aundh, Dist. Pune (the suit property), in Sindh Co-operative
Housing Society Ltd. (D-2). The deceased-plaintiff and her
husband (Plaintiff 1-A) were in occupation of the suit property.
3. On 18th January, 2018, the Defendant No. 1 took the
deceased-plaintiff, then 80 years of age and Mr. Mohanlal
(Plaintiff 1-A) to the office of the Sub-Registrar on the pretext
that, some official formalities were required to be completed. The
Defendant No. 1 allegedly obtained the signature of deceased-
plaintiff, and his father (plaintiff 1-A) by practicing fraud,
coercion and undue influence. It later transpired that, the said
document was a power of attorney with authority to gift the suit
property to the Defendant No. 1 himself.
4. On the strength of said power of attorney, the deceased-
plaintiff alleged on the very next day i.e. 19 th January, 2018, the
Defendant No. 1 got a gift deed executed and registered in his
favour as a donee of the suit property. Thus, the deceased-
plaintiff instituted the suit for a declaration that, the power of
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attorney and the gift deed were null and void and for the
consequential reliefs of injunction.
5. The original plaintiff passed away during the pendency of
the said suit. The appellants came to be impleaded as her legal
representatives. The Appellant No. 1-B adduced evidence.
6. After appraisal of the evidence and the material on record,
the learned Civil Judge was persuaded to dismiss the suit
holding, inter alia, that, the plaintiff failed to establish that, the
Defendant No. 1 had obtained the power of attorney dated 18 th
January, 2018 and the gift deed dated 18 th January, 2018, by
practicing fraud, coercion and misrepresentation. The learned
Judge found that, the deceased-plaintiff and the Plaintiff No. 1-A
had executed the power of attorney after fully appreciating the
nature of the said power of attorney and the consequences
thereof.
7. Being aggrieved, the plaintiffs preferred an appeal before
the District Court. By the impugned judgment and decree, the
learned District Judge dismissed the appeal finding no fault with
the reasoning of the Trial Court. The learned District Judge
concurred with the learned Civil Judge that, the plaintiff failed
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to prove that, the Defendant No. 1 had got the power of attorney
and the gift deed executed by practicing fraud, coercion and
misrepresentation.
8. Being further aggrieved, the appellants are in Second
Appeal.
9. Mr. Deo, the learned Counsel for the appellants, submitted
that, the learned Civil Judge as well as the learned District
Judge committed a manifest error in law in holding that, the gift
deed was duly proved in evidence, although the Defendant No. 1
had not led any evidence. Mr. Deo would urge that, in view of the
provisions contained in Section 68 of the Evidence Act, 1872, it
was incumbent upon the Defendant No. 1 to examine at least
one attesting witness. An endeavor was made by Mr. Deo to drive
home the point that, the proviso to Section 68 which dispenses
with the examination of an attesting witness in proof of the
execution of a document, not being a will, if it is registered, was
not attracted as the execution of both the power of attorney and
the gift deed was specifically denied by the original plaintiff.
10. Mr. Deo would further submit that, the Courts below failed
to appreciate the distinction between the mere signature on a
document and its execution out of one's own volition. The mere
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proof of signature on a document is not proof of its due
execution. To buttress this submission, Mr. Deo placed reliance
on the judgment of the Supreme Court in the case of Veena
Singh (Dead) through Legal Representative Vs. District
Registrar/Additional Collector (F/R) and Another1, wherein in
the context of the provisions of the Registration Act, 1908, the
Supreme Court enunciated that, the "execution" of a document
does not stand admitted merely because a person admits to
having signed the document. Such an interpretation accounts
for circumstances where an individual signs a blank paper and it
is later converted into a different document, or when an
individual is made to sign a document without fully
understanding its contents. Adopting a contrary interpretation
would unfairly put the burden upon the person denying
execution to challenge the registration before a civil court or a
writ court, since registration will have to be allowed once the
signature has been admitted. If the interpretation conflating
signing with execution is adopted, it would ensure that, the Sub-
Registrars/Registrars will continuously end up registering
documents whose validity will inevitably be then disputed in a
civil suit or a writ petition. While the suit or writ proceedings
1 (2022) 7 SCC 1
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continue, the document would remain on the public records as a
registered instrument, which has the potential to cause more
disruption. Hence, such an interpretation should not be adopted
by the Supreme Court.
11. Mr. Deo also placed reliance on a judgment of the learned
Single Judge of this Court in the case of Dattatray Narayan Aher
Vs. Bhaskar Narayan Aher2, wherein, in the facts of the said
case, it was enunciated that, the plaintiff had unequivocally
stated that he was not admitting the gift deed and that he had
not executed the gift deed and, thus, the proviso to Section 68
would not come into play and, therefore, the examination of an
attesting witness to prove the gift deed was necessary.
12. Mr. Deo would thus urge that, the appeal gives rise to the
substantial question of law as to whether, the Courts below
committed an error in holding that, the gift deed was duly
proved though its execution was specifically denied and yet the
Defendant No. 1 did not examine any attesting witness?
13. In opposition to this, Mr. Narvankar, the learned Counsel
for Respondent No. 1, submitted that, the case, now sought to be
urged in the Second appeal, was not pleaded before the Courts
2 2010 (6) Mh.L.J.
SA-45-26.DOC
below. Before the Trial Court, it was the specific case of the
plaintiff that, the power of attorney was obtained by practicing
fraud, coercion and misrepresentation. The execution, as such,
of the power of attorney was not put in contest. It was asserted
that, the power of attorney and the gift deed were vitiated by the
fraud, coercion and misrepresentation. The Trial Court has
recorded a categorical finding that, the plaintiff failed to
establish the case of fraud, coercion and misrepresentation. The
said finding of fact has been affirmed by the Appellate court.
Such concurrent findings of fact are not open for interference in
the Second Appeal.
14. Mr. Narvankar would urge that, the substantial question of
law sought to be pressed into service on behalf of the appellant
does not emerge from the facts of the case. It is not the case
that, the deceased-plaintiff had executed the gift deed
personally. The denial of execution was confined to the power of
attorney. Thus, the submission that, the execution of the
instrument, which is required to be attested, was denied, is
misconceived.
15. Mr. Narvankar would further submit that, in view of the
admissions elicited in the cross-examination of Ms. Kavita, the
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case of the plaintiff was completely demolished and it was,
therefore, not necessary for the Defendant No. 1 to adduce
evidence. Emphasis was laid on the fact that, both deceased-
plaintiff and Mr. Mohanlal (plaintiff 1-A) were well educated and
were working till the year, 2018. Moreover, Ms. Kavita (plaintiff 1-
B) conceded in the cross-examination that, number of properties
belonging to the Plaintiff 1-A were transferred in her name by
the very method, namely, execution of a power of attorney with a
power to make a gift and subsequent execution of the gift deed
in favour of Ms. Kavita (Plaintiff 1-B). It was submitted that, Ms.
Kavita (plaintiff 1-B) was instrumental in instituting the suit and
the said fact becomes evident from the conduct of the late
plaintiff as she never filed an affirmed affidavit in lieu of
examination-in-chief. As all these factors have been considered
by the Courts below, the concurrent finings of fact do not
warrant interference, urged Mr. Narvankar.
16. The aforesaid submissions now fall for consideration.
17. At the outset, it is necessary to keep in view the limits of
interference in a Second appeal under Section 100 of the Code of
Civil Procedure, 1908. It is impermissible for the High Court to
re-appreciate the evidence while exercising jurisdiction under
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Section 100 of the Code, 1908. This Court can venture to
entertain a Second Appeal on the ground of erroneous finding of
fact, based on appreciation of the evidence.
18. Aware of aforesaid limitations, Mr. Deo the learned Counsel
for the appellants, would urge that, the substantial question of
law arises on account of non-examination of an attesting witness
in proof of the gift deed, as the execution of the gift deed, as
such, was not admitted, though the instrument is registered.
Resultantly, the proviso to Section 68 does not come into play.
The learned District Judge as well as the learned Civil Judge
committed a manifest error in law in not appreciating this aspect
of the matter.
19. Section 68 of the Indian Evidence Act prescribes the mode
of proof of execution of document required by law to be attested.
It reads 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
SA-45-26.DOC
1908), unless its execution by the person by whom it
purports to have been executed is specifically denied.]
20. On a plain reading of the aforesaid provision, it becomes
explicitly clear that, if a document is required by law to be
attested, it cannot be used as evidence until one attesting
witness, at least has been called for the purpose of proving its
execution, if an attesting witness is alive, subject to the process
of the Court and also capable of giving evidence. The proviso to
Section 68 of the Code, mollifies the rigour of the main part of
Section 68 and provides 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, unless its
execution by the person, by whom it purports to have been
executed is specifically denied.
21. In effect, the proviso dispenses with the necessity of
examination of an attesting witness in proof of the documents
which are required to be attested, if they are registered, barring a
will; which is required to be proved by examining an attesting
witness, even if it is registered. This exemption from examination
of an attesting witness in proof of a document required to be
attested, if it is registered, would not, however, be available if the
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very execution of the document is specifically denied. The later
part of the proviso thus implies that, if the execution of the
document is specifically denied, it would be incumbent upon the
person seeking to use the document, which is required to be
attested, in evidence, to examine an attesting witness in proof of
its execution, notwithstanding the registration of the said
document.
22. Thus the question as to whether the examination of an
attesting witness is necessary to prove the execution of a
document, which in law is required to be attested, if it is
registered, hinges upon the fact as to whether execution as such
of the said document is admitted or specifically denied. If it is
specifically denied, the examination of an attesting witness is a
must.
23. When can the execution of the document be said to be,
"specifically denied". It is trite mere admission of signature on a
document cannot be equated with the execution of the
document. Mr. Deo, the learned Counsel for the appellants was
justified in canvassing a submission that, mere admission of
signature does not amount to execution of the document. In the
case of Veena Singh (supra), on which a strong reliance was
SA-45-26.DOC
placed by Mr. Deo, in the context of the provisions contained in
the Registration Act, 1908, the Supreme Court inter alia
considered the question whether appellant's admission of her
signature and thumb impressions/fingerprints on the sale deeds
also amounts to admission of its execution. In that context, the
Supreme Court enunciated that, the "execution" of a document
does not stand admitted merely because a person admits to
having signed the document.
24. In the case of Dattatray Vs. Bhaskar (supra), a learned
Single Judge of this Court, after appreciating the pleadings and
evidence in the said case, observed that, when the plaintiff had
unequivocally stated that, he was not admitting the gift deed, he
had not executed the gift deed and that he had signed the
document on the say of the defendant for obtaining a loan, it
cannot be said that, the admission of the signature amounted to
admission of execution of the document. The learned Single
Judge referred to a judgment of the Karnataka High Court in the
case of N. M. Ramachandraiah Vs. State of Karnataka 3 wherein
the following observations were made.
"15. Therefore, the law is well settled. Execution of a
document does not mean merely signing, but signing by
way of assent to the terms of the contract embodied in the
3 2007 SCC OnLine Kar 192
SA-45-26.DOC
document. Execution consists in signing a document
written out and read over and understood, and does not
consist of merely signing a name upon a blank sheet of
paper. It is as solemn act of the executant who mus town
up the recitals in the instrument and there must be clear
evidence that he put the signature after knowing the
contents of document fully. To be executed, a document
must be in existence; where there is no document in
existence there can be execution. Mere proof or admission
that a person's signature appears on a document cannot
by itself amount to execution of a document. Registration
does not dispense with the necessity of proof of execution
when the same is denied. Thus, execution of document is
not mere signing of it."
25. It is also well recognized that, there is difference between
the challenge to the contents of the document and the character
of the document. If the executant of the document asserts that,
he had signed the document under an impression that, the
document was different than the one which the apparent tenor
of the document indicates that, it cannot be said that, the
executant admits the execution of the document. It is always
open to the executant to question the character of the document.
26. A profitable reference can also be made to the decision of
the Supreme Court in the case of Rosammal Issetheenammal
Fernandez (dead) by LRs & Ors. vs. Joosa Mariyan Fernandez &
SA-45-26.DOC
Ors.4, wherein the Supreme Court exposited as to when a
document can be said to be specifically denied so as to exclude
the operation of the proviso to Section 68 of the Evidence Act.
The observations in Para Nos. 7 and 10 of the said judgment
read as under:-
"7. We find that High Court committed error by drawing
such inference. In considering this question, whether there
is any denial or not, it should not be casually considered
as such finding has very important bearing on the
admissibility of a document which has important bearing
on the rights of both the parties. In fact the very finding of
the High Court, "it is difficult to infer a specific denial of
the execution of the document", shows uncertainty and
vagueness in drawing such inference. In considering
applicability of proviso to Section 68 of the finding should
be clearly specific and not vaguely or negatively drawn. It
must also take into consideration the pleadings of the
parties which has not been done in this case. Pleading is
the first stage where a party takes up its stand in respect
of facts which they plead. In the present case, we find that
the relevant part of the pleading is recorded in the
judgment of the trial Court dated 17-8-1977 which is the
judgment prior to the remand.
.........
10. Under the proviso to Section 68 the obligation to
produce at least one attesting witness stands withdrawn if
the execution of any such document, not being a will which
is registered, is not specifically denied. Therefore,
everything hinges on the recording of this fact of such
denial. If there is no specific denial, the proviso comes into
play but if there is denial, the proviso will not apply. In the
4 (2000) 7 SCC 189
SA-45-26.DOC
present case as we have held, there is clear denial of the
execution of such document by the plaintiff, hence the
High Court fell into error in applying the said proviso
which on the facts of this case would not apply. In view of
this the very execution of the gift deed, Exhibit B-1 is not
proved. Admittedly in this case none of the two attesting
witnesses has been produced. Once the gift deed cannot be
tendered in evidence in view of the non-compliance of
Section 68 of the Indian Evidence Act, we uphold that the
plaintiff has successfully challenged its execution. The gift
deed accordingly fails and the findings of the High Court
contrary are set aside. In view of this no right under this
document accrue to the concerned respondent over
Schedule A property which is covered by this gift deed."
27. In the light of the aforesaid position in law reverting to the
facts of the case at hand, first and foremost, it is imperative to
note that, the deceased plaintiff had allegedly executed special
power of attorney in favour of the Defendant No. 1. The case of
the plaintiff was that, the plaintiff was taken to the office of the
Sub-Registrar on the pretext that official formalities were
required to be completed. The Defendant No. 1 allegedly obtained
the signature of the deceased plaintiff and Plaintiff No. 1-A on
the document by practicing fraud, coercion and undue
influence. It later transpired that, the said document was a
power of attorney with the authority to execute a gift deed.
Admittedly, the gift deed was executed by the Defendant No. 1 in
the capacity of power of attorney of deceased plaintiff in favour of
SA-45-26.DOC
himself. The deceased plaintiff has thus not personally executed
the gift deed. In this context, the challenge sought to be
mounted on behalf of the appellants that in view of the specific
denial of the execution of the gift deed, it was incumbent upon
the Defendant No. 1 to examine an attesting witness, is required
to be appreciated.
28. Evidently, the execution, as such, of the gift deed by the
deceased plaintiff, through her power of attorney/Defendant No.
1, is not in contest. Defendant No. 1 has executed the gift deed
in the capacity of the power of attorney, in favour of himself. In
such circumstances, the question of denial of execution of the
gift deed does not arise. Therefore, the edifice of the submission,
sought to be built by Mr. Deo, premised on the specific denial of
the execution of the gift deed, falls through.
29. This propels me to the question of execution of the power
of attorney by the deceased plaintiff. Whether the execution of
power of attorney was tainted by vitiating elements of fraud,
coercion, misrepresentation and undue influence. The Courts
below have recorded categorical findings of facts that, the
plaintiff failed to establish that the power of attorney was
obtained by the Defendant No. 1 by practicing fraud or coercion
SA-45-26.DOC
and exercising undue influence. Whether, the Courts below have
misconstrued the evidence in arriving at the aforesaid finding ?
30. The evidence on record indicates that, the deceased
plaintiff was in a sound and disposing capacity. The execution as
such of the power of attorney was not put in contest, though its
character can, at best, be said to be contested. In this context,
the situation in life of the deceased plaintiff, or for that matter
her husband Plaintiff No. 1-A, who signed the said power of
attorney as a witness thereto, as emerged from the evidence of
Mrs. Kaveeta (PW1), assumes critical salience.
31. Mrs. Kaveeta (PW1) conceded that, the deceased plaintiff
and Plaintiff No. 1-A were well educated. Plaintiff No. 1-A was
the Chairman and Managing Director of a company till the year
2018. The deceased plaintiff was assisting Plaintiff No. 1-A in his
business till the year 2017-2018. The deceased plaintiff was
familiar with Hindi, English Sindhi and Marathi languages. The
deceased plaintiff used to sign the documents in English.
Conversely, no material could be placed on record to
demonstrate that, the deceased plaintiff was either physically
incapacitated or mentally infirm.
SA-45-26.DOC
32. The aforesaid evidence indicates that, the deceased
plaintiff was in a sound state of mind. An endeavor was made on
behalf of the plaintiff to assert that, the deceased plaintiff had
not carried the spectacles and was thus unaware of the contents
of the power of attorney. However, Mrs. Kaveeta PW-1 conceded
in the cross-examination that the photograph affixed on Page 12
of the power of attorney shows that, the deceased plaintiff was
wearing spects.
33. A factor which is of material, nay decisive, significance is
that, at the time of the execution the power of attorney, apart
from the Defendant No. 1, the Plaintiff No. 1-A was present and
did sign the power of attorney as a witness thereto. The deceased
plaintiff never affirmed an affidavit in lieu of examination-in-
chief putting oath behind assertions in the plaint during
her lifetime. Thus, plaintiff No. 1-A, who witnessed the execution
of the power of attorney was the best person to shed light on
the circumstance in which the said power of attorney, came
to be executed. Plaintiff No. 1-A chose not to enter the
witness box. In the circumstances, the Courts below were
justified in drawing an adverse inference against the plaintiffs
for not examining the Plaintiff No. 1-A. In contrast, Mrs.
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Kaveeta PW-1 conceded in the cross-examination that, as she
was not present at the time of the execution of the power of
attorney, she had no personal knowledge as to whether it was
obtained by practicing fraud or coercion, and exercising undue
influence.
34. In the light of the nature of the relationship between the
parties, this Court has made an endeavor to satisfy its
conscience. In regard to the submission on behalf of the
Defendant No. 1 that, Mrs. Kaveeta, Plaintiff No. 1-B, has been a
beneficiary of transfers of the property of the parents in a similar
mode, Mrs. Kaveeta PW-1 conceded in the cross-examination
that, a flat at Khar, Mumbai was purchased by Plaintiff No. 1-A
in the joint names of the Plaintiff No. 1-A and 1-B and,
subsequently, on the strength of power of attorney executed by
the Plaintiff No. 1-A, she got a gift deed executed in favour of
herself. Likewise, another flat at Pune was transferred absolutely
in her name on the basis of a gift deed executed by her in favour
of herself on the strength of a power of attorney executed by
Plaintiff No. 1-A. Similarly, another flat at Andheri, Mumbai was
transferred in her name by the Plaintiff No. 1 by giving her power
of attorney to execute a gift deed in favour of herself. Thus, three
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properties were transferred in favour of Mrs. Kaveeta Plaintiff No.
1-B by following the same modus operandi in which the suit
property came to be transferred by late plaintiff in favour of
Defendant No. 1.
35. In the aforesaid view of the matter, this Court is unable to
persuade itself to agree with the submissions of Mr. Deo that, a
substantial question of law arises for consideration. This Court
does not find any justifiable reason to interfere with the
concurrent findings of facts recorded by the Courts below after
appreciation of evidence. Resultantly, the Second Appeal
deserves to be dismissed.
36. Hence, the following order:-
::ORDER::
i) The Second Appeal stands dismissed.
ii) In view of the dismissal of the Second Appeal,
the Interim Application does not survive and
accordingly stands disposed.
No costs.
[N. J. JAMADAR, J.]
At this stage, Mr. Deo, the learned Counsel for the
appellants, seeks continuation of the ad-interim relief which was
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continued by the first Appellate Court when the First Appeal was
dismissed.
It does not appear that, in the Second Appeal, any ad-
interim relief has been granted.
Nonetheless, to facilitate the Appellant to challenge this
order before the Supreme Court, Respondent No. 1 shall
maintain status quo with regard to the suit property for a period
of four weeks from today.
[N. J. JAMADAR, J.]
