Bombay High Court
Shalik S/O Damdu Dhobale vs Sitaram S/O Damdu Dhobale And Others on 17 June, 2016
Author: R.K. Deshpande
Bench: R.K. Deshpande
sa335.15.J.odt 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.335 OF 2015
Shalik s/o Damdu Dhobale,
Aged about 56 years,
Occ: Cultivator, R/o Ward No.13,
Sindi (Rly), Tq. Seloo,
Dist. Wardha. ....... APPELLANT
...V E R S U S...
1] Sitaram s/o Damdu Dhobale,
Aged about 61 years,
Occ: Cultivator.
2] Dashrath s/o Damdu Dhobale,
Aged about 58 years,
Occ: Cultivator.
3] Suresh s/o Damdu Dhobale,
Aged about 54 years,
Occ: Cultivator.
All R/o Ward No.13, Sindi (Rly.),
Tq. Seloo, Dist. Wardha. ....... RESPONDENTS
----------------------------------------------------------------------------------------------------
Shri M.R. Joharapurkar, Advocate for Appellant.
Shri N.S. Bhattad, Advocate for Respondents.
----------------------------------------------------------------------------------------------------
CORAM: R.K. DESHPANDE, J.
th JUNE, 2016.
DATE: 17
ORAL JUDGMENT
1] In Regular Civil Suit No.9 of 2009, the trial Court passed a decree for partition and separate possession of the agricultural lands Sr. No.169-A and 169-B. The plaintiff as well as the defendants are held ::: Uploaded on - 30/06/2016 ::: Downloaded on - 30/07/2016 05:39:32 ::: sa335.15.J.odt 2/4 entitled to ¼th share each in suit property by way of succession and the proceedings under Section 54 for effecting the partition by metes and bounds are directed to be commenced by the Collector, Wardha.
The trial Court has rejected the claim of the plaintiff that the gift-deed dated 12.05.1987 at Exhibit-92 executed by Damduji, the original owner of the suit property, in favour of the defendants was null and void and the decree of possession has also been passed in counter claim.
2] The decision of the trial Court was the subject-matter of Regular Civil Appeal No.259 of 2010 along with the cross-objection filed by the original plaintiff. The lower Appellate Court vide its judgment dated 05.03.2015 dismissed the Regular Civil Appeal No.259 of 2010 filed by the defendants and the cross-objection filed by the plaintiff has been allowed. The Appellate Court has modified the decree by holding that the plaintiff and the defendants have ¼th share each in a suit house in addition to their share in the suit fields.
3] The defendants have preferred this second appeal.
Notice was issued in this matter and on the last occasion when the matter was listed it was made clear that on the next occasion the matter shall be disposed of finally on the following substantial question of law:
Whether the lower Appellate Court was right in reversing ::: Uploaded on - 30/06/2016 ::: Downloaded on - 30/07/2016 05:39:32 ::: sa335.15.J.odt 3/4 the decree passed by the trial Court granting a declaration that the defendants established their ownership in respect of the house property on the basis of the gift-deed dated 12.05.1987 at Exhibit-92 and passing a decree of possession in respect thereof?
4] Gift-deed at Exhibit-92 is a registered document and was executed by Damduji in respect of his self acquired property.
Any objection to his competency to execute this document at Exhibit-92 has to be rejected. The only ground on which the lower Appellate Court has reversed the decree passed by the trial Court is that the gift-deed at Exhibit-92 was shrouded by suspicious circumstances. The trial Court recorded a finding that two attesting witnesses D.W.1 Shalik and D.W.4 Kishor have proved the gift-deed at Exhibit-92. Without reversing this finding, the lower Appellate Court, considered the so called suspicious circumstances. The test of suspicious circumstances available in accepting a document of Will, cannot be applied to question the validity of gift-deed. Once it is found that the document of gift is registered and the signature of the donor on it, is proved, it cannot be held to be invalid unless a case of fraud or misrepresentation is made out. The provisions of Section 123 of the Transfer of Property Act, Section 68 of the Evidence Act as compared with Section 63 of the Indian Succession Act, have to be seen. The lower Appellate Court has committed an error of law in ::: Uploaded on - 30/06/2016 ::: Downloaded on - 30/07/2016 05:39:32 ::: sa335.15.J.odt 4/4 adopting such method. Apart from this, the learned counsel could not point out any such circumstances creating doubt in acceptance of the evidence of attesting witnesses on the registered gift-deed at Exhibit-92.
The lower Appellate Court could not have therefore, disturbed the findings recorded by the trial Court rejecting the claim of the plaintiff in respect of the house property and holding that the gift-deed at Exhibit-92 was suspicious and confers no title upon the defendants. The finding to that effect as recorded by the lower Appellate Court cannot be sustained.
The substantial question of law is answered accordingly.
5] The theory of previous partition in respect of the agricultural land on 16.05.1984 has been rejected by both the Courts below, which does not give rise to any substantial question of law. In the result, this appeal is allowed. The decree passed by the lower Appellate Court to the extent it holds that the plaintiffs and the defendants shall have ¼th share in the suit house, is hereby quashed and set aside and the decree passed by the trial Court is restored. No costs.
JUDGE NSN ::: Uploaded on - 30/06/2016 ::: Downloaded on - 30/07/2016 05:39:32 :::