Orissa High Court
Satya Jena vs Basistha Jena on 15 April, 2024
Author: D.Dash
Bench: D.Dash
A.F.R
IN THE HIGH COURT OF ORISSA : CUTTACK
RSA NO.41 OF 2022
In the matter of appeal under Section-100 of the Code of
Civil Procedure assailing the judgment and preliminary
decree passed by the learned District Judge, Bolangir in
R.F.A. No.9 of 2016 in confirming the judgment and decree
passed by the learned Civil Judge (Junior Division), Loisinga
in Title Suit No.42 of 1998.
.........
Satya Jena :::: Appellant
-:: VERSUS ::-
Basistha Jena :::: Respondent
Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode.
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For Appellant ... Mr.Gautam Misra,
Sr. Advocate
For Respondent ... Mr. Trilochan Nanda,
Advocate
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CORAM :
MR. JUSTICE D.DASH
---------------------------------------------------------------------------------- Date of Hearing:10.04.2024 :: Date of Judgment:15.04.2024
---------------------------------------------------------------------------------- D.Dash,J. The Appellant, by filing this Appeal, under Section-100 of the Code of Civil Procedure, 1908 (for short, 'the Code') has assailed the judgment and preliminary decree passed by the learned District Judge, Bolangir in RFA No.9 of 2016. The Respondent as the Plaintiff had filed T.S. No.42 of 1998 in the Court of the learned Civil Judge (Junior Division), Loisingha.
The suit is for declaration of his right, title, interest and confirmation of possession over the suit land described in schedule 'A' of the plaint and for permanent injunction in the alternative for partition of land in schedule 'B' of the plaint. The Appellant was the sole Defendant in the said suit. The Trial Court decreed the suit preliminarily by declaring the Plaintiff to be entitled half share each over schedule 'A' and 'B' properties. This Appellant (Defendant) being the aggrieved by the said judgment and preliminary decree passed the Trial Court had carried the Appeal under section 96 of the Code, which has also been dismissed. Hence, the Second Appeal is at the instance of the Appellant who as the Defendant has suffered from the judgment and preliminary decrees passed by the First Appellate Court in confirming the judgment and preliminary decree passed by the Trial Court.
2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court.
3. Plaintiff's case is that the suit land originally belonged to one Netra Jena who died issueless. After his death, his Page 2 of 22 widow Tulasa succeeded to the said property of Netra Jena and she became the absolute owner in possession of the suit land. The Plaintiff and the Defendant are two brothers being the sons of one Gautam Jena. Netra Jena was their elder father. These two brothers were taking care of Tulasa and looking after her till her death. Being satisfied with the services of Plaintiff and Defendant, said Tulasa had executed registered deed of gift on 03.07.1982 gifting away the said properties to the Plaintiff and the Defendant. The Plaintiff and the Defendant accepted the deed gift of the land so made by Tulasa during her lifetime. It is stated that in order to avoid future litigation, the Plaintiff and Defendant amicably partitioned the suit land. During that partition schedule 'A' land came to be allotted to the Plaintiff. However, after the death of Tulasa on 08.07.1997, the Defendant forcibly occupied the suit house. So, the Plaintiff convened a meeting in the village to convince the Defendant that he should not do so. That move, however, proved futile. Therefore, the Plaintiff served a notice upon the Defendant through his Counsel claiming half share over the suit land. That having not been responded to by the Defendant, the Plaintiff filed the suit.
4. The Defendant coming forward to contest the suit in his written statement while not disputing the relationship and Page 3 of 22 the fact that the property originally belonged to Netra Jena stated that the suit land was never partitioned at any point of time between the himself and the Plaintiff. It is also stated that Tulasa had never gifted the suit land to the Plaintiff and the Defendant. The Defendant asserted that said deed of gift is a forged one. It is the specific case of the Defendant that Netra Jena, the owner of the suit land had bequeathed the said property in his favour by executing an unregistered will on 18.03.1979. In view of that, the Defendant claims to be in possession of the suit land as the owner of the same from the time of death of Netra Jena and thus to have the exclusive right, title, interest and possession over the same.
5. At this stage it would be pertinent to mention that in the suit when the Plaintiff has claimed to have got right, title, interest and possession over schedule 'A' land as to have got the same on partition between himself and the Defendant after having received the same by way of gift from Tulasa, the Defendant while questioning the genuineness of the deed of gift although claimed the right, title and interest not only over schedule 'A' land but also the rest part of the land as shown in schedule 'B'; the Defendant, however, had not lodged any counter claim for declaration of his exclusive right, title and interest over schedule 'A' and 'B' land on the Page 4 of 22 strength of the unregistered Will said to have been executed by Netra.
Thus, it is seen that the Defendant has taken the defence of having the exclusive right, title and interest of schedule 'A' and "B; on the strength of that unregistered will said to have been executed by Netra, the original owner in order to thwart the suit of the Plaintiff in declining to be granted with the reliefs as prayed for by him.
6. The Trial Court on the above rival pleadings framed the following issues:-
(I) Whether the Plaintiff has got right, title, interest and possession over the suit land, i.e., schedule 'A' land?
(II) Whether there is any cause of action for the Plaintiff to being the suit against the Defendant?
(III) Whether the Plaintiff is entitled to the relief of permanent injunction? (IV) To what relief?
7. Sitting over to answer the issue No.1, upon examination of evidence and their evaluation, the Trial Court although accepted the deed of gift executed by Tulasa in favour of Plaintiff and Defendant admitted in evidence and marked Ext.1, however has ruled against the factum of partition as claimed by the Plaintiff and allotment of schedule 'A' land in the said partition in favour of the Plaintiff. Having rendered this answer, the Trial Court in terms of the Page 5 of 22 said gift, decreed the suit preliminarily allotting half share over the suit land in schedule 'A' and 'B' to the Plaintiff and Defendant each and in doing so, order has been passed for division of the property taking into consideration and giving due regard to the possession of the parties and their convenience in the field as far as possible and practicable.
8. The Defendant being aggrieved by the said judgment and decree although had filed the First Appeal, the said move has not yielded any fruitful result for the Defendant.
9. The present Appeal has been admitted to answer the following substantial questions of law:-
(i) Whether on the basis of the evidence on record, the Courts below are right in holding the gift projected by the Respondent (Plaintiff) to be a valid one by saying that the gift in question has otherwise being proved for its acceptance?
(ii) Whether non-framing of specific issue on the validity of the Will prejudiced to the defendant from adducing evidence on the same, resulting its ultimate effect on the decision of the suit?
10. Mr. G. Mishra, learned Senior Counsel for the Appellant (Defendant) submitted that the Courts below have gone completely wrong by holding the registered deed of gift (Ext.1), which is under challenge and in dispute as to have been duly proved by the Plaintiff. He submitted that the said deed of gift (Ext.1) dated 03.07.1082 said to have been Page 6 of 22 executed by Tulasa has not at all been proved in accordance with law. Referring to the evidence of the attesting witnesses, P.W.4 and 5, he submitted that although the Plaintiff has examined them to prove the attestation, their evidence as laid do not fulfil the requirement as to the attestation as known to law. He, therefore, submitted that when the registered deed of gift under dispute has not been proved in accordance with and as required under law that could not have been taken into account and held to be pressed into service by the Plaintiff, more particularly, when the Defendant has taken the plea that Tulasa was an illiterate lady and the said deed of gift is a forged one. He, therefore, submitted that on this ground alone the suit of the Plaintiff as laid ought to have been dismissed. In support of his submission, he placed reliance on the decisions in cases of M.L. Abdul Jabbar Sahib Vrs. M.V. Venkata Sastri and sons and others; (1969) 1 SCC 573; Om Prakash (Dead) through Legal Representatives Vrs. Shanti Devi and others; (2015) 4 SCC 601; and Rosammal Issetheenammal Fernandez (Dead) By LRs and Another Vrs. Jossa Mariyan Fernandez and others; (2000) 7 SCC 189.
He next submitted that the Defendant from the beginning in his written statement has clearly stated to have the right, title, interest and possession over the entire suit land in schedule 'A' and 'B' as that has been bequeathed in Page 7 of 22 his favour by the original owner, Netra Jena under unregistered Will dated 18.03.1979 and, therefore, it was imperative on the part of the Trial Court to frame an issue on that score and since that issue was not specifically framed, the Defendant has been misled and has not proved the document, unregistered Will dated 18.03.1979 and admitted the same in evidence. According to him, the answer on that issue, which should have gone in favour of the Defendant in that event and the suit was also bound to fail on proper adjudication of that issue.
11. Mr. T. Nanda, learned counsel for the Respondent (Plaintiff) submitted that the deed of gift (Ext.1) dated 03.07.1082 executed by Tulasa is not only in favour of the Plaintiff but also in favour of the Defendant and both are the equal beneficiaries under the said deed of gift being the recipients of equal share over the suit property in schedule 'A' and 'B'. He submitted that when much is said and scathing attack is made as to non-proving of that deed of gift (Ext.1) in accordance with and as required under law, more particularly the attestation part, which impacts the execution, though the Defendant has stated that Tulasa was an illiterate lady and the deed to be a forged one, there is absolutely no explanation from the side of the Defendant as to how he appeared to be one of the signatories to the said registered Page 8 of 22 deed of gift in accepting the same. He, therefore, submitted that when the Defendant is not explaining that particular fact and thus does not show in clear terms to have not accepted the gift; even in the absence of any evidence as to the attestation of the said deed of gift, the Defendant cannot wriggle out of the same and he is estopped from questioning the execution of the said deed of gift and followed by attestation and registration in questioning the validity of the said deed of gift. He next submitted that the Trial Court as well as the First Appellate Court although have not dealt the above facet; they have very much dealt the attestation part and have concurrently found the deed of gift to be valid and genuine so as to be pressed into service having the full force in the eye of law. According to him, since no perversity is seen with the said finding, this Court in seisin of the Second Appeal is not permitted to tinker with the same.
(A) He next submitted that the Defendant no doubt has pleaded about the unregistered Will dated 18.03.1979 said to have been executed by Netra Jena in his favour bequeathing all the suit properties in his favour upon him but during trial has not even bothered to prove that document, i.e., the unregistered Will except giving the bald statement during his examination.
Page 9 of 22
(B) He further submitted that the Defendant then having carried the First Appeal has also not taken any step, whatsoever, to prove that unregistered Will and get it admitted as additional evidence which even till now in the Second Appeal is not taken and, therefore, just to say that the Trial Court having not framed any specific issue in that regard, the Defendant has been misled although sounds attractive, it is nothing but totally baseless and not legally tenable at this stage.
(C) He further submitted that even though for a moment it is accepted that the Defendant was misled, the Defendant having carried the First Appeal and then Second Appeal where particularly that question was raised, he having remained without any action in that regard, the said submission has absolutely no base to stand upon. He further submitted that in the present suit the plea of the Defendant banking upon that unregistered Will as taken in the written statement was to thwart the suit and see that it is dismissed but not to get his right flowing under the said Will, if any, established, which he has not done from the time of death of Netra Jena till the present suit and, therefore, it was not necessary for the Trial Court even to frame an issue on that score as the decision on that issue even if framed would have stood on the way of the suit to be decreed. He submitted that Page 10 of 22 the Defendant in the written statement has not noted that document as to have been relied upon as required under order Rule of the Code and when he has deposed about the Will has not filed it anywhere and thus under these circumstances to say that he has been misled and was not able to prove that unregistered Will has no legal basis.
He placed reliance upon the following decisions:-
(a) Boodireaddy Chandraiah & Others Vs. Arigela Laxmi & Another, 2008(I) LLR (SC)-197;
(b) Brundaban Nayak & Others Vs. Gobardhan Biswal & Others, 1990(I) OLR-157;
(c) Vaikuntam Mamikyamma Vs. Puppala,
MANU/OR/0017/1971;
(d) Musi Dei Vs. Labanya Bewa & Ors.,
MANU/OR/0083/1986 and
(e) K. Balakrisnhan & Ors. Vs. K. Kamalam & Ors., MANU/SC/1071/2003.
12. Keeping in view the submission made, I have carefully read the judgments passed by the Courts below. I have travelled through the averments taken by the Plaintiff in the plaint and have gone through the evidence, both oral and documentary tendered by the Plaintiff. I have also Page 11 of 22 perused the written statement and the evidence let in by the Defendant.
13. Admitted case of the parties is that the property in question was the property of Netra Jena. The landed property which is the subject matter of the suit was owned and possessed by Netra Jena. Netra Jena had no issue and he was survived by his widow Tulasa.
14. The Plaintiff claims his interest over the property in suit by virtue of a registered deed of gift dated 03.07.1982. The said deed of gift as per the case of the Plaintiff had been executed by Tulasa gifting away the property to which she succeeded upon the death of her husband in favour of the Plaintiff as well as the Defendant as the two donees clothing them with equal interest over the said property.
The Defendant in his written statement while traversing the averments made in the plaint has stated that during the lifetime of Netra Jena, he was treating him (Defendant) as his son and being pleased with him, he out of love and affection had bequeathed the entire suit property in his favour by executing a Will on 18.03.1979 in presence of witnesses.
Thus when the Plaintiff claims half interest over the entire property in schedule 'A' and 'B'; on the basis of the registered deed of gift dated 03.07.1982 as one of the two Page 12 of 22 donees in pleading that the rest half interest under that very registered deed of gift has gone to the hands of the Defendant; the Defendant counters it by saying that he is the owner of the entire property of Netra who had bequeathed the same in his favour under an unregistered Will during his lifetime on 18.03.1979.
15. It be stated at this stage that the Plaintiff in paragraph- 4 of his plaint has pleaded about that gift to have been made by Tulasa. In response to the same, the Defendant in the written statement at paragraph-3 has gone to say that it is incorrect to state that Tulasa had gifted away the suit property in favour of the Plaintiff and Defendant by that registered gift deed. It is next stated, which for our purpose is important:- that Tulasa who was an illiterate and paradanasini lady and she had never executed the registered gift deed on 03.07.1982 and even if any such document to that effect is forthcoming, the same is a manufactured document created by impersonation without the knowledge and understanding about the contents of the said document and it was without any independent advice.
It is, therefore, said that said document, if any, is not even worth the paper written on and the transaction is merely a paper transaction and on the strength of that Page 13 of 22 document, the Plaintiff had not acquired any right, title and interest over the suit land.
At this juncture, simultaneously, let us have a glance over the evidence of the Plaintiff himself. He has stated that Netra Jena died leaving behind his widow Tulasa and Tulasa died on 08.09.1997. He has stated that he himself as well as the Defendant were looking after Tulasa and both were possessing the properties of Tulasa which she succeeded from Netra. It is also stated that Tulasa gifted the suit property to the Plaintiff as well as the Defendant and it was executed by her in presence of witnesses as well as in presence of the Plaintiff and the Defendant. He further states that he as well as the Defendant had put their signatures over the said document which has been admitted in evidence and marked Ext.1 and they knew everything about the contents of the document which was also known to Tulasa and that the scribe, Ghasiram Panda had read over and explained the contents of the gift deed to Tulasa as well as the Plaintiff, Defendant and other witnesses.
The Defendant has questioned the execution of the document by Tulasa. It is vehemently submitted that when the Plaintiff claims the right, title, interest and possession to the extent of half over schedule 'A' and 'B' properties; on the face of the challenges from the side of the Defendant, the Page 14 of 22 Plaintiff has not at all proved the attestation of the said gift deed which is an integral process involved in execution of the deed of gift as required in law in order to ensure due execution. It is essential to prove the attestation through satisfactory evidence, which ensures due execution so as to base a claim upon that gift under challenge. In this connection, attention was invited to the evidence of the witnesses examined from the side of the Plaintiff and placed as to how for the same run towards attestation.
16. The deed of gift is one which is required by law to be attested. As provided in section 123 of the Transfer of Property Act, 1882 for the purpose of making a gift of immovable property, the transfer must be effected by registered instrument signed by donor or someone on behalf of the donor and attested by at least two witnesses.
17. The provisions contained in section 68 of the Evidence Act, 1862 is to the effect that such document requiring attestation as per law cannot 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 the evidence. However, the proviso to section 68 of the Evidence Act reads that it shall not be necessary to call an attesting witness in proof of execution Page 15 of 22 of any document, not being a Will, which has been registered in accordance with the provisions of Indian Registration Act, 1908 unless its execution by the person by whom it purports to have been executed is specifically denied (Emphasis supplied). Therefore, if any document other than a Will even though law mandates that attestation is required therein, yet when it is registered; the Court if its execution by the person by whom it purports to have been executed is not specifically denied; cannot refuse to admit that document in evidence so as to be looked into for the purpose and given the force as per law even for not calling anyone of the attesting witnesses if alive and tendering his evidence as to his attestation after execution of the deed by the executant. In the present case, the execution of the gift deed has been denied in the manner as noted in the forgoing para. Since the execution of the deed of gift has been called in question, the burden of proof lies upon the party, who asserts his case/claim over that very registered deed of gift which in the given case, the Plaintiff to satisfactorily prove said execution by proving the attestation.
18. It is the settled law that attestation and execution are two different acts, one following the other in the order stated. The attestation of a person to a document is to Page 16 of 22 ensure that there is no fraud or other vitiating circumstances in the execution of the document. It is also meant to ensure that the executant was a free agent, and not under pressure, nor subjected to fraud, while executing the same. The reason behind the legislative imperative, set out in section 68, Evidence Act, to call at least one attesting witness for proof of an attestable document appears to be loud and clear that he is a witness best suited to tell the Court about the circumstances under which the document was executed inasmuch as he was a witness appointed or agreed upon by the parties to speak of the circumstances of its execution before any controversy had arisen between them. Therefore, what is more vital for the Court to determine is whether the document, requiring attestation, had been executed in an upright manner. The attesting witnesses can help the Court best in formulating its opinion about the execution of the document. Further, it will be noticed, attestation is insisted upon by the provisions of the Transfer of Property Act. However, the document relied upon by a party has to be proved in accordance with the provisions of the Evidence Act, and if the requirements of the evidence infer that the document is forged or fictitious merely from the circumstances that it has another set of marginal witnesses. Page 17 of 22
19. However, adverting to the case at hand, it is noticed that the registered deed of gift which has been admitted in evidence and marked Ext.1 has come into being in presence of the Plaintiff as well as the Defendant who are also the signatories to the said registered deed of gift. That being the situation, the Defendant in the entire written statement when has challenge the exception in the manner as stated above, has not breathed a word giving any explanation, whatsoever, as to how his signature could appear in the said registered deed of gift executed by Tulasa and under what circumstance he signed or was to made to sign. The evidence of the Defendant being recorded during trial, the same state of affair is found therein that he has simply said that Tulasa had never executed the deed of gift. The Defendant here is not an illiterate person. He has very much signed on the registered deed of gift (Ext.1) in Odia putting the date. In the absence of any explanation, whatsoever, coming from the side of the Defendant, the Defendant is thus estopped from questioning the execution of the deed of gift, which has been registered carrying legal presumption. The Defendant is also one of the two donees with the Plaintiff, who too has signed thereon. In the given situation, in the absence of the specific explanation mere allegation would not amount to specific denial so as to deny the Page 18 of 22 Plaintiff to take the aid of the proviso contained in section 68 of the Evidence Act as here we are concerned with a 'gift' and not a 'Will'. Therefore, in the obtained facts and circumstances, the deed of gift (Ext.1) is available to be used as evidence as such in having its force as per law. The Defendant in such state of affair without explaining his own act of signing on the deed of gift, when as per his case, he was already the owner of the subject matter can very well be placed in the pedestal of an attesting witness as the "animus attestandi" can very well be attributed to him. Therefore, he is estopped to deny the attestation and call in question the attestation and execution of the deed of gift (Ext.1) by Tulasa and its acceptance by him and the Plaintiff as donees; that such document of gift had not been executed by Tulasa and had not come into being as per law and it was by impersonation, a manufactured document etc. The reason being that the Defendant here is not a simple identifying witness in the document but a witness, as per his case, having full proprietary interest over the property in question as he pleads to have had got it under the Will executed by Netra much before that which assigns him the status as an attesting witness.
This again bears great significance and leads to say that the projected case of the Defendant having a Will from Page 19 of 22 Netra is an afterthought. Had it been the fact, the Defendant would not have remained as a witness to the said registered gift deed executed by Tulasa in respect of the suit property by which the Defendant stood deprived of half of the property of Netra which was going to the hands of the Plaintiff by that gift. Therefore, the submission from the side of the Appellant (Defendant) that the Plaintiff's case is to fail for want of evidence as regards attestation and execution although at the first blush having due regard to the ratio of the cited decisions (supra) appears to be attractive, yet in view of the discussion as made above is found to be having no force in the eye of law. This provides the answer to the first substantial question of law against the Defendant.
20. Now the other question that stands for being addressed is as regards nonframing of issue. It be stated that in view of the answer to the first substantial question of law; this second substantial question of law does no more survive for answer so as to come to the aid of the Defendant.
Be that as it may, it be taken note at the beginning that although the Defendant has very much pleaded about the Will in the said written statement, yet as required under Order-8, Rule-1 A of the Code, it has not been so mentioned Page 20 of 22 in the written statement that he relies upon that unregistered deed of Will for the purpose of his defence nor the list was filed at that time or later seeking leave of the Court. One more striking feature pops up that the suit having been filed in the year 1998, it came to be disposed by the Trial Court on 29.02.2016. The suit remaining in the Trial Court for about eighteen years, the Defendant having led evidence by examining himself and other witnesses has not even bothered to prove the said so-called unregistered Will as per law. The Defendant has also not lodged any counter claim seeking a decree in respect of the entire property as he is the right, title and interest holder and in possession of the same by virtue of that unregistered Will said to have been executed by Netra. In that situation, when the Will was projected by the Defendant in order to nullify the effect of the deed of gift basing on which the Plaintiff claims the title over half of the property being the co-donee in respect of that half along with the Defendant as the co-donee in respect of the rest half, it was not imperative upon the Trial Court to frame an issue with regard to the Will as the stand of the Defendant is to simply to thwart the move of the Plaintiff in filing the suit for its dismissal. Furthermore, when the Defendant has not been serious in proving his document even to prevent the move of the Plaintiff in Page 21 of 22 getting any decree, now at this highly belated stage to say that there being no issue, he was misled in the obtained facts and circumstances as narrated above, has to be said to be a contention, which is wholly untenable in the eye of law when it is further seen that the Defendant having carried the First Appeal, there also he has taken no step to get that unregistered Will admitted as additional evidence and not even raising the contention on that score, which for the first time has been raised in the Second Appeal with regard to the nonframing of issue.
21. In the wake of all the aforesaid; this Court records the answer to the second substantial question of law in the negative in holding that nonframing of specific issue on the validity of the Will has not caused any prejudice to the Defendant from being not able to adduce evidence on that score resulting its ultimate effect upon the decision of the Suit and First Appeal.
22. In the result the Appeal stands dismissed. There shall, however, be no order as to costs.
(D. Dash), Signature Not Verified Judge. Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Himansu Date: 29-Apr-2024 19:09:15 Page 22 of 22