Allahabad High Court
Bhim Singh vs Smt.Rajkali on 17 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 99
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 4.12.2019 Delivered on _17.1.2020 Court No. - 53 Case :- SECOND APPEAL No. - 139 of 1991 Appellant :- Bhim Singh Respondent :- Smt.Rajkali Counsel for Appellant :- D V Jaiswal,Mahesh Sharma,S K Varma,Sharad Sinha,Siddhartha Verma,Vinod Sinha Counsel for Respondent :- Kk Rajvanshi,M.D.Singh,Pn Pandey,S.P. Singh,Sunil Kumar,Y.S.Bohra Hon'ble Vivek Agarwal,J.
Heard Sri Mahesh Sharma, learned counsel for the appellant.
None for the respondent though in the cause list, the name of counsel is reflected.
This second appeal has been filed by the defendant being aggrieved by judgment and decree dated 14.12.1990 passed by VIIth Additional District & Sessions Judge, Bulandshahr dismissing the Civil Appeal No. 182 of 1987, Dalip Singh and other Vs. Smt. Rajkali confirming the judgment and decree dated 6.8.1987 passed by Vth Additional Munsif, Bulendshahr arising out of Suit No. 296 of 1983.
This second appeal was admitted on 28.1.1991 on the following substantial question of law.
"As to whether property which has been continuously in possession of the defendants admittedly and fact having been admitted by the plaintiff that possession had been with the defendants, suit should not have been dismissed on the ground of being barred by time".
Brief facts leading to the present appeal are that plaintiff Rajkali is daughter of late Smt. Bhagwati, who was widow of Khajan Singh. Plaintiff filed a suit, which was registered as O.S. No. 296 of 1983 seeking cancellation of gift deed dated 20.9.1974 allegedly made by Smt. Bhagwati in favour of defendants on the ground of she being the only child of Smt. Bhawati and Khajan Singh. Smt. Bhagwati who was holding ½ share in Circle no. 296 measuring 20 bigha 9 biswa and 18 biswansi had no reason to execute a gift deed in favour of the defendant Dalip Singh, who is S/o her Tau, nephew of late Smt. Bhagwati's sons of Dalip Singh. It is alleged that suit being filed on getting knowledge of such gift deed after death of Smt. Bhagwati in January, 1983 when she was threatened by the defendants with dispossession and when she had obtained copy of the gift deed on 1.6.1983.
It is also alleged that Smt. Bhagwati Devi was an old lady of 80 years of age. She was infirm and had met with an accident and was not in a position to execute such gift deed. Lateron through amendment in the plaint new pleading was added that Smt. Bhgwati Devi had taken some loan from Punjab National Bank for installation of a pumping set and with a view to pay back said loan she had agreed to execute a sale deed for a portion of her land, but on the date when sale deed was executed, the defendants exercising fraud and misrepresentation got the gift deed registered in their name simultaneously. There is neither a valid document nor a document which was wilfully executed by Smt. Bhagwati and, therefore, the gift deed was liable to be declared null and void ab initio.
The defendants who are appellants before this court broadly submitted that Smt. Bhagwati was staying with them as she had no son. As per Hindu custom there was no question of her son-in-law or grandson (Devta) to perform her last rites. Plaintiff was never staying with her mother and, in fact, it was the defendant who was taking care of Smt. Bhagwati and being pleased of their service she had executed a gift deed. On the basis of such gift deed they got their names mutated and are in possession of suit land. Another pleading advanced at the stage of first appeal, that the suit was not maintainable being hit by the provisions of Setion 331 of UPZA & LR Act, 1950.
Plaintiff had examined herself as PW-1 and Jagvir Singh as PW-2; whereas defendant had examined DW-1 Khushiram and DW-3 Bhim Singh, who is son of Dalip Singh, so also a handwriting expert. Shri Chaudhary to substantiate that thumb impression which is affixed on the gift deed is valid, to negativate the plea of forgery and misreprentation.
Several issues were raised and have been answered by the Courts below pertaining to version of the parties, maintainabllity of the suit, valuation of the suit etc, but issue no. 27, specifically framed, by the trial court, whether the suit is barred by limitation. Since substantial question of law which has been framed by my predecessor in 1991 is to the effect that whether the suit was barred by limitation as admittedly land in question was in possession of the defendant, therefore, this court will like to concentrate on this very question of limitation, to arrive at a finding as to whether the judgment and decree passed by the courts below is sustainable or not.
In regard to issue no. 2, learned Trail Court has discussed the pleading and evidence of rival parties that it is the case of the plaintiff that after 4 months of death of Smt. Bhagwati Devi plaintiff gathered knowledge of disputed gift deed because Smt. Bhagwati Devi during her life time never expressed anything about execution of such gift deed and if the evidence led by the defendants is believed that plaintiff had knowledge of the gift deed from the very beginning and they were having very cordial relationship with the plaintiff then there is no reason for not admitting either plaintiff or husband or children of the plaintiff as attesting witness to the disputed gift deed. On the other hand, the defendants case is that the suit is barred by limitation. They obtain mutation in their name immediately after execution of the sale deed and plaintiff made a false and incorrect statement with a view to enlarge the limitation.
Learned Trial Court has discussed certain series of facts like in regard to mutation proceedings, defendants did not produce any evidence, that no objection was filed either by Smt. Bhagwati Devi or the plaintiff. This has been taken to be a circumstance that when neither Smt. Bhagwati Devi nor plaintiff had filed any no objection in support of the mutation on the basis of gift deed then it cannot be said that under the given facts and circumstances plaintiff had knowledge of the gift deed from the date of its execution.
Learned Trial Court has also considered the pleadings of the plaintiff that after 3-4 months of death of Smt. Bhagwati Devi in January, 1993 when defendants started quarrelling, then, she gathered knowledge of such gift deed.
As per the provisions contained in Article 59 of the Limitation Act, limitation is to be counted from the date of knowledge. According to the plaintiff she gathered knowledge of the gift deed in April, 1983. Suit was filed on 5.7.1983 and, therefore, suit was construed to be within prescribed period of limitation.
Learned Trial Court has also held that the argument advanced on behalf of the defendants that there was no occasion for the plaintiff to have waited for 3-4 months to file suit by saying that Article 59 prescribes a limitation of 3 years from the date of knowledge and, therefore, filing of suit in July, 1983 cannot be said to be barred by limitation.
This issue has also been discussed by the learned first appellate court and while doing so it has discussed the evidence in regard to issue no. 2 i.e. whether defendants had obtained thumb impression of the doner on the gift deed by keeping her in dark and without making her understand the contents and import of the transaction as issue no 3, that as to whether suit was barred by limitation. In regard to issue no. 2, first appellate court has discussed evidence of DW-1 Khushiram and DW-3 Bhim Singh who are sons of Dalip Singh and also beneficiary of the gift deed and that they admitted in their evidence that Musammat Smt. Bhagwati was 80-years old, illiterate, rural women, who had no knowledge of external world. She had lot of faith on their nephew, Dalip Singh and other defendants. As per Bhim Singh land of the defendants and Smt. Bhagwati Devi was looked after by Dalip Singh. All the transactions outside home were carried by Dalip Singh and on this ground she being happy and satisfied with their service wanted to gift that land in their favour. She had not executed a Will because she never wanted the plaintiff and her son to enter into any kind of dispute with the defendants. Based of this evidence, conclusion has been drawn that Smt. Bhgawati was under influence of the defendants and had lot of trust on them.
It has also come on record and is admitted position that on the date when gift was executed, Smt. Bhagwati and Dalip Singh had executed a sale deed in favour of Sushil Kumar and Sunil Kumar, sons of Jagdish Prasad. According to the defendants Bhagwati had not only gifted the land but during her life time had also put them in possession of the suit land. They have also admitted that during life time of Smt. Bhagwati they had very cordial relationshnip with Raj Kali and, in fact, 7 months prior to execution of the gift deed Bhagwati had informed the plaintiff about the execution of said gift deed.
Learned first appellate court after discussing evidence led by rival parties, especially that of the defendants witness, Bhim Singh, who deposed that stamp for the gift deed was purchased by Smt. Bhagwati Devi on her own name and she had deposited the money for said stamp paper on her own and finding it contrary to the gift deed which reveals that stamp paper was purchased by Bhim Singh in his own name. Learned first appellate court affirmed the finding of the trial court that if defendants had obtained mutation in their favour keeping Musammat Smt. Bhagwati Devi and plaintiff in dark on the basis of the gift deed then said mutation in the revenue records cannot be taken note of and has recorded a finding that since gift deed was obtained by keeping Smt. Bhagwasti Devi in dark, therefore, there was no reason for the plaintiff or Smt. Bhagwati Devi to file objection or to give no objection during said mutation proceedings.
At this stage, it will not be out of place to mention that though an application for framing additional substantial question of law was filed by the counsel for the appellant on 19.2.2003 proposing additional substantial question of law : - "As to whether the courts below could ignore relevant and admissible document which could be relied upon for coming to the finding of fact as to the executrix having knowledge of the execution of gift deed since 1974".
Perusal of the order sheet reveals that such additional substantial question of law has never been pressed and argued. In fact, word executrix is a noun used for a female executor of a Will. In the present case there is no issue either before the trial court or before the first appellate court in regard to the knowledge of the gift deed to the executrix but the limitation is to be computed in regard to the knowledge of the plaintiff of the gift deed and therefore the substantial question of law which has been framed by this Court is limited as to whether continuous possession of the defendants within the knowledge of plaintiff will not be construed as that suit was required to be dismissed on the ground of being barred by time. There is no need to permit any addition of substantial question of law as proposed now, therefore Application in this regard is rejected.
As per defendants, it has been pleaded and argued that Smt. Bhagwati Devi was continuously staying with Dalip Singh, who was cultivating the fields of Smt. Bhagwati Devi, therefore, as per their own admission there was no distinct occasion till death of Smt. Bhagwati Devi in January, 1983 to distinguish between possession of Smt. Bhagwati Devi and defendants as Smt. Bhagwati Devi was living in the joint family with defendants as member of that family and defendant Dalip Singh was taking care of her property.
Defendants have admitted that they had very cordial relationship with the plaintiff till suit was filed. Therefore, admittedly, the possession of defendants was neither exclusive nor distinct from that of Smt. Bhagwati Devi till her death in 1983. This fact has been discussed and admitted by the court below while rejecting the plea of the plaintiff that she was staying with her mother alongwith her son. Therefore, there being no distinctly identifiable separate possession of defendants during life time of Smt. Bhagwati Devi who was admittedly dependent on them could not be construed to infer that plaintiff had knowledge of the gift deed and mutation proceedings. In this regard appreciation of evidence by the court below that DW-3 Bhim Singh deposed that plaintiff was informed about such execution of gift deed, 7 months prior to its execution when taken into consideration, then nothing prevented the defendants from including the plaintiff or their close relative like husband or son as one of the witness to the gift deed and thereafter nothing should have precluded them from obtaining any objection from the plaintiff and Smt. Bhagwati Devi at the time of mutation proceedings. In absence of these vital ingredients coupled with the facts that there is admission of two documents being executed on the same date, namely, ''a sale deed' and ''a gift deed' and there being no explanation, justifying as to why stamp paper was purchased by DW-3, though he deposed that it was purchased by Smt. Bhagwasti Devi, meaning thereby that there was consent of Smt. Bhagwati Devi for said gift deed.
The judgment and decree passed by the court below holding the suit to be within limitation in terms of the provisions contained in Article 59 of the Limitation Act does not call for any interference. Thus the substantial question of law as discussed above cannot be answered in affirmative for the reasons assigned above. Therefore it is held that suit was not barred by time and was maintainable.
This view of the court finds support from the law laiddown by Supreme Court in the case of Nigawwa Vs. Byrappa Shiddappa Chireknragar reported in in AIR 1968 SC 956; wherein it has been held in para-6, referring to Article 95 of the Limitation Act, 1908. [It, in fact, merged into Article 59 of the Limitation Act, 1963], that starting point of limitation is not date of execution of gift deed but time when fraud became known to the plaintiff. Though appellant counsel has also placed reliance on this judgment in support of their contention, and has relied on para-5, wherein it is held as under:
"The legal position will be different if there is a fraudulent misrepresenttion not merely as to the contents of the document but as to its character. The authorities make a clear distinction between misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, whle in the case of the latter, it is merely voidable. In Foster v. Mackinon, (1869) 4 C.P. 704 the action was by the endorsee of a bill of exchange. The defendant pleaded that he endorsed the bill on a fraudulent representation by the acceptor that he was signing a guarantee."
It is submitted that document was voidable as according to plaintiff there was fraudulent misrepresentation as to the contents thereof. This is not true. In fact misrepresentation is as to the nature of the document executed I.e. in the name of execution of a sale deed, in addition a gift deed got executed. Thus in the light of the judgment in case of Nigawwa (Supra) if there is fraudulent misrepresentation as to the character of the document then it is void.
In the present case from the facts discussed above, there is a clear plaint averment that in the name of getting a sale deed executed, by committing fraudulent misrepresentation a gift deed too was got executed taking advantage of old age and illiteracy of the testator. This fact been established and accepted by the courts below, that in the name of the sale deed, a gift deed was executed on the same date, making fraudulent misrepresentation as to the character of the document and representing it to be a sale deed, then it was void. The facts in the case of Shiddappa being different where there was the allegation that under the gift deed Shiddappa had fraudulently included plot nos. 91 and 92 of Lingadahalli village without her knowledge being distinguishable on its own facts is not available to the appellant to bank upon. Therefore, the appeal fails and is dismissed.
Order Date :- 17.1.2020 S.K.S.