Madhya Pradesh High Court
Ghasitibai vs Ramgopal Singh And Ors. on 20 February, 2008
Author: Sushma Shrivastava
Bench: Sushma Shrivastava
JUDGMENT Sushma Shrivastava, J.
1. This is plaintiff's second appeal against the judgment and decree dated 6.4.98 passed by Vth Additional District Judge, Sagar in Civil Appeal No. 1-A/98 arising out of the judgment and decree dated 13.10.97 passed by Second Civil Judge Class-I, Sagar in Civil Suit No. 243-A/94.
2. Brief Facts giving rise to this second appeal are as follows: Plaintiff/appellant Ghasiti Bai filed a civil suit for declaration and permanent injunction, in the alternative for possession, in respect of the suit land comprising of Khasra No. 292/3, 293/3, 302 and 295/2, total area 18.48 acres and the house built thereon, situated at village Surkhi, District Sagar. According to plaintiff, she is the sole surviving legal heir of her father, Late Pratap Singh, who died in the year 1963 and after his death, she became the owner of all his movable and immovable property. Her father Late Pratap Singh also executed a registered family settlement deed in favour of the plaintiff on 27.3.61, whereby she became the owner of the suit property. Defendants/respondents had no right, title or interest in the suit property, but they threatened to dispossess her; therefore, plaintiff gave them a registered notice not to interfere in her right and possession over the suit property but the defendants/ respondents No. 1 to 5 claimed themselves to be the owner of the suit property on the basis of adverse possession. They also got their names mutated in the revenue records in collusion with Patwari. Therefore, plaintiff was constrained to file the suit against defendants before the trial court.
3. Defendants/Respondent No. 1 to 5 contested the suit before the trial court and denied all the averments made in the plaint in the written statement filed before the trial court. They contended that their predecessor in interest, Kashi Bai was the daughter of Late Pratap Singh borne to him from his legally wedded wife Sanjli Bai and Kashi Bai was the sole legal representative of Late Pratap Singh. After the death of Pratap Singh, Kashi Bai became the owner of whole property belonging to Late Pratap Singh including the suit property. After death of Kashi Bai in the year 1965, her sons and the wife of her pre-deceased son i.e. defendants No. 1 to 5 came to be owner and in possession of all the suit property and since then they are in peaceful possession and their names have also been mutated in the revenue records. It was further contended that after the death of his wedded wife, Pratap Singh developed illicit relations with one Sarju Bai and plaintiff was borne out of illicit relationship of Late Pratap Singh and Sarju Bai. Thus, plaintiff was neither the legitimate child, nor a legal representative of Pratap Singh. As such she had no right or title in the property of Late Pratap Singh. Defendants/respondent No. 1 to 5 also denied the execution of any settlement deed by Late Pratap Singh in favour of the plaintiff and contended that such document, if any, was got executed by Sarju Bai, kept of Pratap Singh, taking undue advantage of his old age; such a document was void in the eye of law and plaintiff did not derive any right or title in the suit property. After the death of Kashi Bai Defendants/respondent No. 1 to 5 are in continuous, uninterrupted possession of the suit property as owner thereof to the knowledge of plaintiff and her mother and they perfected title on the basis of adverse possession. Thus the right or title of the plaintiff, if any, had come to an end and she was not entitled to any declaration of title or relief of possession or permanent injunction in respect of the suit property.
4. On the above pleadings, the trial court framed various issues and after recording the evidence of both the parties came to hold that the plaintiff was not legitimate daughter of Late Pratap Singh and as such she was not his legal heir and she had no right or title in the property of Pratap Singh. The trial court further held that the registered family settlement deed (Ex.P-1) said to have been executed by Late Pratap Singh in favour of the plaintiff was also not duly proved for want of cross-examination of its attesting witness Sher Singh (PW-2) and plaintiff had not acquired any right or title in the suit property, therefore, dismissed plaintiff's suit by judgment and decree dated 13.10.97 passed in Civil Suit No. 243-A/94.
5. In Civil Appeal preferred by the plaintiff against the aforesaid judgment and decree, the first appellate court affirmed the finding that the family settlement deed (Ex.P-1) was not duly proved and plaintiff did not acquire any right or title in the suit property on the basis of Ex.P-1. The first appellate court also came to hold that the document (Ex.P-1) purporting to be a relinquishment deed executed by Late Kashi Bai was also inadmissible in evidence for want of registration and therefore, it could not be held that Late Kashi Bai had relinquished her right or title in the suit property in favour of the plaintiff by taking movable property like gold and silver and cash from her father. However, the first appellate court, on the basis of evidence on record, came to hold that the plaintiff was the legitimate daughter of Pratap Singh borne from his second wife Sarju Bai and therefore, she had equal right and title in the property along with her step sister Kashi Bai, the predecessor in interest of Defendants/respondents No. 1 to 5 and therefore, partly allowed the appeal granting the relief of declaration in favour of the plaintiff to the effect that she had equal right in the suit property along with Kashibai by the impugned judgment. Plaintiff has, therefore, preferred this Second Appeal.
6. This second appeal was admitted and heard on the following substantial questions of law:
1. Whether the courts below erred in law that Ex.P-5 being unregistered was inadmissible in law ?
2. Whether the courts below erred in law in rejecting the evidence of attesting witness to Ex.P-1 for want of cross-examination and in holding it as not proved ?
7. Learned Sr. counsel for the appellant/plaintiff submitted that it was not disputed between the parties that Late Pratap Singh was the exclusive owner of the suit property. As such he had right to dispose of his property in the manner he liked and by virtue of family settlement deed (Ex.P-1) Late Pratap Singh had given all his immovable property i.e. suit property to the plaintiff/appellant, which was also fortified from the contents of Ikrarnama (Ex.P-5) executed by Kashi Bai. In face of family settlement deed (Ex.P-1), the question of other daughter of Late Pratap Singh, namely, Kashi Bai getting any right in the suit property did not arise. So the conclusion of the lower appellate court, that both the daughters had equal right in the suit property, was without any basis, particularly in view of the admission of Kashi Bai made by her by way of Ikrarnama (Ex.P-5), which was duly proved by the plaintiff by her two witnesses, namely, Surat Singh (P.W.-3), who was the brother of Late Pratap Singh and Natthan Singh (P.W.-4). However, the Court below erred in law in holding that Ex.P-5 being unregistered was inadmissible in evidence and that for want of cross-examination of the attesting witness Sher Singh (P.W.-2) family settlement deed (Ex.P-1)was also not proved.
8. Learned Counsel for the appellant/plaintiff placing reliance on the decision of this Court in the case of Bhanwarlal and Ors v. Heeralal reported in MPLJ 2001(2) page 502 submitted that in view of proviso to Section 49 of Registration Act even an unregistered document could be read and used as evidence for collateral purpose and thus Ikrarnama (Ex.P-5) executed by Kashibai could be used as an admission by Kashi Bai of the family settlement made by Late Pratap Singh by way of Ex.P-1. He further submitted that, as held by the Apex Court in the case of Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and Ors. , the admission is best evidence that an opposite party can rely upon, unless it is successfully withdrawn or proved erroneous. Learned Sr. counsel for the appellant/plaintiff also emphasized that the execution of Ex.P-5 was duly proved by the evidence of plaintiff's two witnesses, namely, Surat Singh (PW-3) and Nathan Singh (PW-4).
9. Learned Counsel for the appellant/plaintiff further submitted that the courts below gravely erred in holding that uncross-examined testimony of Sher Singh (P.W.-2), an attesting witness to Ex.P-1 could not be read in evidence. Placing reliance on the decision rendered in case of Dwarkabai v. Ukharda Ganpat reported in AIR 1954 Nagpur page 252, learned Counsel for the appellant/plaintiff submitted that if cross-examination of the witnesses of the opposite party was not done due to absence of the pleader, it could not be made a ground of attack. Also placing reliance on a decision of the Apex Court in the case of Mulkh Raj Sikka v. Delhi Administration learned Sr. counsel for the appellant/plaintiff submitted that if the opportunity to cross-examine the witness was availed of and the cross-examination was reserved, then the evidence of such a witness was admissible under Section 33 of the Evidence Act if the witness subsequently became incapable of giving evidence. It was further submitted that uncross-examined testimony of PW-2 Sher Singh was also admissible under Section 32 Clause 7 of the Evidence Act, when the witness subsequently became incapable of giving evidence. Reliance was placed on the decisions (A. Rangaswami Pillai v. A. Subramania Pillai and Ors.) and (Satyadeo Prasad v. Smt. Chanderjoti Debi and Ors.) in this behalf. Learned Counsel for the appellant/plaintiff also submitted that even otherwise the family settlement deed (Ex.P-1) was proved by the evidence of plaintiff Ghasiti Bai (P.W.-1) herself and its execution was also not specifically denied and thus, the two Courts below erred in holding it as not proved.
10. Learned Counsel for the respondents, on the other hand, submitted that Ex.P-5 was a document in the nature of relinquishment deed in respect of immovable property and such a document being unregistered was not admissible in evidence in view of Section 49 of Registration Act. Even if it was to be seen for collateral purpose, it could not be read as an evidence of relinquishment of any right of Kashi Bai in immovable property of Late Pratap Singh or conferral of any rights on plaintiff in the suit property. Learned Counsel for the respondents placed reliance on a decision of this Court reported in JLJ 1973 short note 20 page 17 (Phoolbai and Ors v. Kodulal and Anr.) in this behalf. Learned Counsel for the respondents further submitted that Ex.P-5 was a document purported to be executed by Kashi bai and as such contents of Ex.P-5 could not be an admission on the part of her legal heirs i.e. respondents, who were not parties to it. More so Ex.P-5, it was submitted, was not a genuine document, as it was never referred to in the plaint, nor in the notice (Ex.P-2) sent by the plaintiff to the respondents before filing of the suit and was an after thought. Learned Counsel for the respondents also submitted that uncross-examined testimony of the attesting witness Sher Singh (P.W.-2) could not be looked into and was not admissible in evidence. Reliance was placed on the various decisions of this Court as reported in 1979 (2) MPWN short note 109 (Benibai v. State of M.P.), 1994(1) MPWN short note 128 (State of M.P. v. Khilan Singh) & 1974 MPLJ short note 68 (Motilal v. Sunder Bai). Learned Counsel for the respondents, therefore, submitted that the courts below did not err in rejecting the documents Ex.P-1 and Ex.P-5, particularly when the execution of both the documents was in question and not in any way admitted by the respondents.
11. After considering the submissions of both the sides and on going through the record of the case, I am of the opinion that this appeal has no merit. The document (Ex.P-5) said to have been executed by Kashi Bai is an unregistered document. This document (Ex.P-5) on the face of it, as it reads, is in the nature of deed of relinquishment of the right of Kashibai in the immovable property of her father Late Pratap Singh in favour of the appellant/plaintiff in exchange of the movable property taken by Kashi Bai. Such an unregistered document, being a deed of relinquishment in respect of immovable property, is inadmissible in evidence in view of the provisions of Section 17(b) and Section 49 of Registration Act. No doubt, such an unregistered document may be received as an evidence of any collateral transaction not required to be effected by registered instrument. However, the submission of learned Counsel for the appellant/plaintiff, that this could be received as an evidence of admission of Kashibai of the contents of family settlement deed (Ex.P-1), has no force. If this document (Ex.P-5) is taken to be an admission of the contents of Ex.P-1, settlement deed said to be executed by Late Pratap Singh in favour of the plaintiff, that would also amount to conferral of right or title on the appellant/plaintiff in the immovable property of her father, which would again be inadmissible in evidence for want of registration of the document. It has also been so held by this Court in the case of Phoolbai and Ors. v. Kodulal and Ors. (supra) that an admission in unregistered document, which amounted to declaration of title in the property could not be used in evidence.
12. Moreover, there has been a finding of fact recorded by the lower appellate court that the document (Ex.P-5) was not duly proved by the evidence of its two attesting witnesses, namely, Surat Singh (P.W.-3) and Nathan Singh (P.W.-4), in view of their statements made in the cross-examination that Kashibai had not written any document before them and in view of their denial in cross-examination to the facts contained in Ex.P-5. The lower appellate court also noticed that Ex.P-5 was never referred to in the plaint, nor in the notice (Ex.P-2) sent by the plaintiff to the respondents No. 1 to 5 before filing of suit. It is also pertinent to mention that this document (Ex.P-5) was never put to respondent No. 1 Ramgopal (D.W.-1) during his cross-examination, who could be the best person to admit or deny the signatures of his mother Kashi Bai on Ex.P-5. Be that as it may, the document (Ex.P-5), being in the nature of a relinquishment deed, was not admissible in evidence for want of registration. The courts below, therefore, did not err in holding that Ex.P-5 was not admissible in evidence for want of registration.
13. As regards the second substantial question of law, it is evident from the record that the testimony of Sher Singh (P.W.-2), an attesting witness to the family settlement deed (Ex.P-1), remained uncross-examined. It is also evident from the commissioner's report on record that this witness (P.W.-2) could not be subsequently cross- examined as he became incapable of giving evidence due to infirmities of the old age. Broadly speaking, an uncross-examined testimony of witness cannot be read in evidence, as the right of cross-examination under Section 138 of the Evidence Act is an important right. A perusal of record also reveals that the respondents/defendants had not availed the opportunity of cross-examining this witness on the day when his examination-in-chief was recorded, and that was not due to any fault on the part of respondents. The non cross-examination of this witness (P.W.-2), as the record shows, could not be attributed solely to any inaction or lapse on the part of the respondents or absence of their counsel. Therefore, when the respondents/defendants did not have the opportunity to cross-examine this witness, namely, Sher Singh (P.W.-2), his uncross-examined testimony, when the witness subsequently became incapable of giving the evidence, could not be admitted and read in evidence under Section 33 of the Evidence Act in view of proviso attached to Section 33 of the Evidence Act. The citations referred to by learned Counsel for the appellant/plaintiff in the case of Dwarkabai v. Ukharda Ganpat and Mulkh Raj Sikka v. Delhi Administration (supra) do not render any assistance to the appellant in the facts of the instant case.
14. The submission of the learned Counsel for the appellant that uncross-examined testimony of Sher Singh (P.W.-2) could be read under Section 32 of Evidence Act also has no merit. The provisions of Section 32 Clause 7 has no application to an uncross-examined testimony of a witness given in a judicial proceedings. The citations referred to by learned Counsel for the appellant/plaintiff rendered in the case of A. Rangaswami Pillai v. A. Subramania Pillai and Ors. and Satyadeo Prasad v. Smt. Chanderjoti Debi (supra) have no bearing on the point.
15. The submission of learned Counsel for the appellant/plaintiff, that the family settlement deed (Ex.P-1) executed by Late Pratap Singh in favour of the appellant/plaintiff was proved by the evidence of plaintiff Ghasiti Bai (P.W.-1) herself, has also no merit. As held by the Apex Court in the case of Sait Tarajee Khimchand and Ors. v. Yelamarti Satyam and Ors. , mere marking a document as an exhibit does not dispense with its proof. Here also plaintiff Ghasiti Bai (P.W.-1) nowhere proved the signature of Late Pratap Singh on Ex.P-1, which obviously she could not do, as she was only a minor child of tender years at the time of execution of Ex.P-1, as is revealed from her own evidence. However, she admitted that her mother was also alive at the time of her deposition, but she was not examined to prove the signature or execution of the family settlement deed (Ex.P-1) by Late Pratap Singh. Section 67 of the Evidence Act requires that if a document is alleged to be signed or to have been written wholly or in part by the witness, the signature or the hand writing of so much of the document should be proved to be in his handwriting. Thus, from the evidence of plaintiff/appellant Ghasiti Bai (P.W.-1) the signatures of Late Pratap Singh on Ex.P-1 or execution thereof by him was not legally proved and Ex.P-1 was simply exhibited in her evidence. There was no other legally admissible evidence on record to prove the execution of Ex.P-1.
16. The submission of the learned Counsel for the appellant/plaintiff that the finding recorded in para 16 of the impugned judgment that document (Ex.P-1) was not thirty years old, was erroneous, being a finding of fact could not be assailed in the second appeal, although such a finding was not erroneous in view of the fact that the document (Ex.P-1) dated 27.3.61 was tendered in evidence on 21.7 82 by the plaintiff and by that time it was not a thirty years old document. More so, as held by this Court in the case of Mohinuddin and Anr. v. President, Municipal Committee Khargone reported in 1993 JLJ page 67 the contents of thirty years old document could not be presumed to be true by virtue of presumption attached to such document.
17. Thus, the execution of the document (Ex.P-1) was not proved from the evidence on record. The courts below did not err in rejecting the uncross-examined testimony of P.W.-2 Sher Singh, an attesting witness to Ex.P-1 and in holding it as not proved.
18. In the wake of aforesaid, both the substantial questions of law are answered in negative.
19. In absence of proof of Ex.P-1 & Ex.P-5 the appellant/plaintiff could be not held to be exclusive owner of suit property.
20. Consequently this appeal fails and is dismissed. Parties to bear their own costs.