Madhya Pradesh High Court
Smt. Leeladevi vs Decd. Taradevi Farkya Thru. Lrs ... on 26 March, 2019
Equivalent citations: AIR 2019 MADHYA PRADESH 135, AIRONLINE 2019 MP 458 (2020) 1 MPLJ 436, (2020) 1 MPLJ 436
1
S.A. No.648/2016
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)
S.A. No.648 of 2016
Smt. Leeladevi & others. ... Appellants.
Vs.
Deceased Taradevi Farkya
through L.Rs. Satyanarayan & others. ... Respondents.
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Shri A.K. Sethi, Sr. Advocate with Shri P.R. Bhatnagar, Advocate
for appellants.
Shri Sunil Verma, Advocate for respondents.
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JUDGMENT
(Delivered on 26th March, 2019) This is a second appeal filed by the defendants being aggrieved by judgment and decree dated 13.11.2013 passed in favour of plaintiff by 3rd Civil Judge, Class-II, Mandsaur in Civil Suit No.91-A/2011 affirmed by judgment and decree dated 21.9.2016 passed by District Judge, Mandsaur in Civil appeal No.29-A/2016.
2. Facts of the case giving rise to this second appeal are as under:
(i) Deceased Smt. Taradevi (represented through legal heirs) and defendant no.2 are real brother and sister. Defendant No.1 is wife of defendant No.2. Defendant No.3 is purchaser of suit property from defendant No.1. Late Mohanlal Vaidya and Late Smt. Tarabai are father and mother of plaintiff and defendant No.2. The suit property is half portion of House No.1, Shastri Colony, Mandsaur constructed over the plot having area 1,160 2 S.A. No.648/2016 Sq.ft. The constructed area is 775.04 Sq.ft. The said house was of the ownership of Late Smt. Gangabai who died on 25.10.2007. Thereafter, her husband Ramlal had died on 25.1.2008. Late Gangabai executed registered gift-deed dated 26.11.1999 in favour of the plaintiff for the half portion of the suit house mentioned in red colour in the map appended to the suit. The said gift was accepted by the plaintiff. And defendants are not disputing this gift deed. Apart from the aforesaid gift-
deed, Ramlal and Gangabai both had executed registered Will dated 13.7.2000 bequeathing remaining half portion of the suit house in favour of plaintiff.
(ii) According to the plaintiff, defendant No.1 on the basis of forged gift-deed dated 22.3.2005 executed the sale-deed dated 22.2.2011 in favour of defendant No.3. Said gift-deed is forged and the sale-deed both are illegal and not binding on the plaintiff. On 22.3.2011, defendants No.1 and 2 tried to dispossess the plaintiff, for which, she filed the civil suit for the relief of permanent injunction before the 4th Civil Judge, Class- I, Mandsaur, which is still pending.
(iii) There after plaintiff filed the present suit seeking declaration that sale-deed dated 22.2.2011 and the gift-deed dated 22.3.2005 are illegal and void and not binding on her and also prayed for permanent injunction that the defendants be restrained from interfering into her peaceful possession.
(iv) Defendants No.1 and 2 filed the written statement and did not dispute the gift-deed dated 26.11.1999 in favour of the plaintiff. They denied the Will dated 13.7.2000 in favour of the plaintiff. By way of special pleading, it was submitted that the 3 S.A. No.648/2016 plaintiff and defendant No.2 being son and daughter of Gangabai are having half-half share in the suit house. Gangabai had executed the registered gift-deed dated 22.3.2005 in favour of defendant No.1 and since then, defendants No.1 and 2 are in possession. On the basis of gift-deed, mutation had also been taken place in the name of defendant No.1. Thereafter, it was sold to defendant No.3 and possession was also handed over, but the plaintiff has removed the lock and kept her luggage in two rooms. Defendant No.1 filed an application for mutation before the Municipal Corporation on 3.3.2006 and the plaintiff had knowledge about it and despite that, she did not file any suit within the period of limitation, therefore, the suit is barred by limitation, hence same is liable to be dismissed.
(v) Defendant No.3 also field the written statement denying the registered Will in favour of the plaintiff and also claimed the possession, but admitted that the plaintiff removed the locks and forcibly taken the possession.
3. On the basis of pleadings, learned trial Court framed seven issues for adjudication, which are as under :
"1- D;k Jherh xaxkckbZ ifr jkeyky }kjk izfroknh Ø- 1 Jherh yhyk mfn;k ds i{k esa fnukad 22-3-2005 dks fof/kor nkui= fu"ikfnr fd;k x;k\ 2- D;k mDr nkui= oknh ds fo#) voS/k 'kwU; rFkk vd`r gksdj ml ij ca/kudkjh ugh gS\ 3- D;k izfroknh Ø- 1 }kjk izfroknh Ø- 3 ds i{k esa fnukad 22- 02-2011 dks fu"ikfnr foØ;i= oknh ij ca/kudkjh ugh gS\ 4- D;k oknh nkfo;k LFkku ij fof/kd #i ls vkf/kiR;/kkjh gS\ 5- D;k izfroknhx.k }kjk oknh dks nkfo;k LFkku ds csn[ky fd, tkus dk iz;kl fd;k tk jgk gS\ 6- D;k oknh }kjk okafNr fofHkUu lgk;rvks dk mlds }kjk mfpr #i ls ewY;kadu djds i;kZIr U;k;k'kqYd ij okn is'k fd;k x;k gS\ 7- lgk;rk ,oa O;;\"
4. Plaintiff examined herself as P.W.1; Ramesh 4 S.A. No.648/2016 Chandra as P.W.2 and got exhibited the gift-deed dated 22.3.2005 as Ex. P/1; sale-deed between defendant No.1 and 3 as Ex. P/2; Will dated 13.7.2000 in her favour as Ex. P/3 and affidavit of Satyanarayan as Ex. P/4. In support of written statement, defendants examined Leeladvi as D.W.1; Mohanlal as D.W.2; Smt. Abhilasha as D.W.3 and got exhibited 9 documents as Ex. D/1 to D/9.
5. Learned trial Court after appreciating the evidence came on record has held that the title and ownership of the property can be gifted without its possession and right of enjoyment, therefore, even if the possession was not handed over, the gift-deed cannot be said to be invalid gift . It has been held that as required under the provisions of Section 68 of the Indian Evidence Act, defendants No.1 and 2 did not to prove the gift-deed by examining the attesting witnesses of the gift-deed. Since, they have failed to examine any one of the attesting witnesses, therefore, they have failed to prove the gift-deed in their favour. Hence, vide judgment dated 13.11.2013, the suit was decreed in favour of the plaintiff declaring the gift-deed dated 22.3.2005 and sale-deed dated 22.2.2011 as void and not binding on the plaintiff.
6. Being aggrieved by the aforesaid judgment passed by learned trial Court, defendant nos. 1&2 preferred first appeal before the District Judge, Mandsaur. Vide judgment and decree dated 21.9.2016, learned District Judge has dismissed the appeal and affirmed the judgment and decree passed by learned trial Court , hence the present second appeal before this Court.
5 S.A. No.648/20167. Appellants have proposed following questions of law in this appeal :
(1) Whether, without "Specific Denial" regarding registered gift deed by plaintiff, the registered gift deed can be disbelieved?
(2) Whether, a registered gift deed is to be required proving by attested witnesses ?
(3) Whether, the burden of proof about forged registered gift deed are on the shoulder of Leeladevi ?
(4) When the plaintiff come out with the case that Ex. P/1 Gift Deed dated 22.03.2005 than the burden of proof lies upon the Plaintiff or not about the gift deed ? (5) Whether registered gift deed is required to be proved by attesting witnesses ?
(6) Whether burden to prove Ex. P/1 Gift deed dated 22.03.2005 wrongly placed upon the defendants specially when it was exhibited by plaintiff and in view of AIR 2006 SC 1971 AND 1974 MPLJ 455 ?
(7) Whether Courts below has misinterpreted Section 68 of Evidence Act?
(8) Whether the suit was barred by time and could have been decreed when registered document will be deemed to be knowledge of the whole world ?
(9) Whether Ex. P/3 will dated 13.07.2000 confers title upon the suit property to the plaintiff on death of the executes when registered gift deed Ex. P/1 dated 22.03.2005 was already executed in favour of the Defendant No.1? (10)Whether judgment and decree of Courts below is perverse and are sustainable under law ?
6 S.A. No.648/20168. Shri A.K. Sethi, learned senior counsel appearing for the appellants/defendants, argued that during her life time, Tarabai had executed the gift-deed in favour of defendant No.1, therefore, said gift-deed has superseded the Will dated 13.7.2000 executed in favour of plaintiff . Even otherwise, the Will does not confer any right and title during life time of the executant of the Will. The plaintiff filed the suit for declaration and permanent injunction only on the ground that there is a Will dated 26.11.1999 in her favour hence late. Tarabai had no right and title to execute the gift-deed in favour of defendant No.1. Learned trial Court has wrongly framed the issue that, whether the gift-deed in favour of defendant No.1 is invalid? Since the plaintiff has alleged that the Will is not valid, that burden was on the plaintiff to establish the same, but the learned trial Court as well as the first appellate Court have wrongly shifted the burden on defendants No.1 and 2 to prove the said gift-deed. The plaintiff and defendant No.2 are brother and sister and they are having half-half share in the property of Tarabai and Mohanlal, therefore, half share had already been given to the plaintiff by gift-deed dated 26.11.1999 and half share has been given to the wife of defendant No.2. The plaintiff was required to prove the Will dated 13.7.2000. In support of his contention, he has placed reliance over Para 10, 16 and 18n of the judgment passed by the apex Court in the case of Anil Rishi V/s. Gurbaksh Singh : AIR 2006 SC 1971 and judgment of Division Bench of this Court in the case of Bhagwandas Nandlal V/s. Chhaganlal Binjoolal : 1974 MPLJ 455.
9. Shri Sethi further submitted that the plaintiff had 7 S.A. No.648/2016 knowledge about the gift-deed in favour of defendant No.1 and mutation on 3.3.2006, despite that, she filed the suit in the year 2011 which is barred under the provisions of the Limitation Act and the Courts below have wrongly held that the limitation for filing the suit is 12 years, hence within limitation.
10. Per contra, Shri Sunil Verma, learned counsel appearing for the respondent/plaintiff, argued in support of both the judgment and decree by submitting that as per the contents of the Will of Tarabai, it is clear that she was not interested in giving any share in the house to defendant No.2 during her life time. Defendant No.2 had already been given his share by way of cash of Rs.10,00,000/- and 50-50,000/- to remaining two daughters viz. Ramkanyabai and Sushilabai, then there was no question of executing the gift-deed in favour of defendant No.1 The plaintiff filed the suit seeking declaration that the gift-deed executed in favour of defendant No.1 is void, therefore, learned Courts below have rightly shifted the burden on defendants No.1 to prove the said Will as per Proviso to Section 68 of the Indian Evidence Act. In support of his contention, he has placed reliance over the judgment passed by the apex Court in the case of Rosammal Issetheen Ammal Fernandez V/s. Joosa Mariyan Fernandez : (2000) 7 SCC 189.
After hearing the arguments of learned counsel appearing of respective parties, I do not find any substantial question of law involve in this appeal due to following reasons.
11. Learned Courts below have decreed the suit in favour of the plaintiff only on the ground that the defendant 8 S.A. No.648/2016 No.1&2 have failed to prove the gift-deed in their favour by not examining at least one attesting witness of the said gift-deed. Section 68 of the Indian Evidence Act 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 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
Section 68 lays down that 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 an attesting witness alive, and subject to the process of the Court and capable of giving evidence. As per Proviso added to the Section, in case of the documents other than the Will, it shall not be necessary to call an attesting witness in proof of the execution of any document if it has been registered under the provisions of Registration Act, unless its execution by the person by whom it purports to have been executed is specifically denied. The words "specifically denied"
means specifically denied by a party against whom it is sought to be used and not by the executant alone. Therefore, a party against whom another party specifically denies the Gift deed and same is being used, it is necessary for the party to call the attesting witness to prove, even though, the executant does not do so.9 S.A. No.648/2016
12. In the present case, the plaintiff in whose favour a Will is there, has specifically denied the gift-deed in favour of defendant No.1, therefore, it was incumbent upon defendant No.1 to prove the gift-deed by calling at least one of the attesting witnesses in the Court. The apex Court in the case of Rosammal Issetheen Ammal (supra) has held that if there is no specific denial, the proviso comes into play but if there is denial, the proviso will not apply. Admittedly, none of the two attesting witnesses was examined, the gift-deed cannot be tendered in evidence. Para 11 of the aforesaid judgment is reproduced below :
"11. 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 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 rights under this document accrue to 10 S.A. No.648/2016 the respondent concerned over Schedule A property which is covered by this gift- deed."
In case of K. Laxmanan v. Thekkayil Padmini, reported in (2009) 1 SCC 354 the apex court has held that
30. The legality and the validity of the said deed of gift was under challenge in the trial for which the parties have led evidence and therefore in the present case the proviso to Section 68 of the Act does not become operative and functional. In such cases, the document has to be proved in terms of Section 68 of the Act. In this regard, we may appropriately refer to a decision of this Court in Rosammal Issetheenammal Fernandez v. Joosa Mariyan Fernandez4 wherein it was held as under: (SCC pp. 191 & 192, paras 7 & 11) "7. ... 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. ... 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.
* * *
11. 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."
31. The two attesting witnesses to the said deed of gift viz. Ext. B-2 are K.T. Vasu and Urulummal 11 S.A. No.648/2016 Ukkappan. K.T. Vasu admittedly had died whereas Urulummal Ukkappan was alive.
Urulummal Ukkappan being alive, could have been examined in the present case to establish the legality of the deed of gift. But neither was he examined nor was any reason assigned by the appellant for not examining him.
32. Since both the attesting witnesses have not been examined, in terms of Section 69 of the Act it was incumbent upon the appellant to prove that the attestation of at least one attesting witness is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. DW 3, who was an identifying witness also in Ext. B-2, specifically stated that he had not signed as an identifying witness in respect of Ext. B-2 and also that he did not know about the signature in Ext. B-2. Besides, considering the nature of the document which was a deed of gift and even assuming that no pleading is filed specifically denying the execution of the document by the executant and, therefore, there was no mandatory requirement and obligation to get an attesting witness examined but still the fact remains that the plaintiff never admitted the execution of the gift deed and, therefore, the same was required to be proved like any other document.
(emphasised supplied)
13. Learned trial judge while decreeing the suit has placed reliance over the judgment passed by the Madras High Court in the case of N. Ramaswamy V/s. C. Ramaswamy :
AIR 1975 Mad. 88. In the considered opinion of this Court, both the Courts below have committed no error while decreeing the suit in favour of the plaintiff. I do not find any question of law, as proposed by the appellant, is involved in this appeal.
14. So far as issue of limitation is concerned, according 12 S.A. No.648/2016 to the plaintiff, defendants tried to dispossess her on 22.3.2011 on the basis of sale-deed dated 22.2.2011, then she came to know about the so-called gift-deed in favour of defendant No.1 and the sale-deed dated 22.2.2011 and thereafter, she filed the suit in the year 2011 itself. For filing the suit for declaration of gift-deed dated 22.3.2005 as void, the limitation is 12 years under Article 65 of the Limitation Act. Therefore, in the considered opinion of this Court, Courts below have rightly held that the suit is within limitation. I find no ground to interfere.
15. Consequently, this appeal being devoid of any merit and substance deserves to be and is hereby dismissed.
No order as to costs.
( VIVEK RUSIA ) JUDGE Alok/-
Digitally signed by Alok GargavDate: 2019.03.26 16:52:09 +05'30'