Karnataka High Court
Smt. Flora Margaret vs A. Lawrence on 23 February, 2000
Equivalent citations: 2000(6)KARLJ27, AIR 2000 (NOC) 81 (KAR), 2000 A I H C 3987, (2001) 1 CIVILCOURTC 105, (2000) 6 KANT LJ 27, (2001) 1 CURCC 356
JUDGMENT
1. This is plaintiffs appeal directed against the judgment and decree dated 3-4-1997 given by X Additional City Civil Judge (Sri K.H. Malleshappa), Mayo Hall, Bangalore, in O.S. No. 10457 of 1992 (Smt. Flora Margaret v A. Lawrence) dismissing the plaintiff's suit.
2. The facts of the case in Nutshell are:
That the plaintiff-appellant filed the above suit claiming decree for declaration declaring the release deed dated 29-11-1990 executed between the plaintiff and defendant to be null and void ab initio. The plaintiff further prayed for a decree in the nature of direction directing the defendant and other persons who are residing along with the defendant to vacate and handover vacant possession of the suit schedule property to the plaintiff and on their failure to comply with the direction, this Hon'ble Court will be pleased to evict the defendant and others residing in the suit schedule property and handover the vacant possession to the plaintiff-appellant.
3. The plaintiff as per the allegations in the plaint asserted that she is the absolute owner in possession with title and enjoyment of the immoveable property bearing No. 365 situated at Pillanna Garden, Bangalore, measuring East to West 25 ft. and North to South 30 ft. The plaintiff claimed to have purchased the said property under a registered sale deed dated 4-7-1984. The plaintiff claims to be in actual possession of the same and paying taxes etc. According to the plaintiffs case, it was purchased by the plaintiff from her own funds. The plaintiffs further case is that thereafter she had constructed the house and occupied the suit schedule property, and later on it so happened that the landlord of the defendant started harassing the defendant and also filed a police complaint. The landlord of defendant prevailed upon the defendant to vacate the house in which the defendant, his uncle C.K. Albert, his wife C.K. Harry Edwin and his wife and children were living. Therefore they wanted shelter and requested the plaintiff to accommodate the defendant and those persons for short time and looking to the pitiable condition according to the plaintiff she had accommodated them in the suit schedule property on July 1990 along with the plaintiffs family. The plaintiffs case is that in October 1990 when the plaintiffs son's house had been renovated after having falling vacant and for want of accommodation the plaintiff and her family moved over to the house of the plaintiffs son. The plaintiff-appellant averred in the plaint that she is the absolute owner in possession of the suit property and alleged that it was the self acquired property of the plaintiff. The plaintiffs further case is that with ulterior motive of grabbing the property the defendant hatched criminal conspiracy and on the pretext of obtaining signature for the sake of getting a loan for house construction required the plaintiff to put her signature to help the defendant to acquire loan and made the plaintiff affix her signature on the document which the defendant wanted the plaintiff to sign and even the plaintiff was not allowed to know the exact character of the document. The plaintiff relying on defendant's representation, in order to help him to get the loan signed the document which later on came to the plaintiffs knowledge to be the release deed dated 29-11-1990. The plaintiffs case is that her signatures were obtained by misrepresentation and fraud. So the release deed which is filed along with the plaint is null and void. The plaintiff's case is that when she had gone to the Municipal Office to pay tax, then correct facts came to the notice of the plaintiff and the plaintiff came to know that by playing fraud and misrepresentation her signatures were obtained on the document of different nature viz., the release deed. The plaintiff alleged that the defendant was threatening her and her family members that by virtue of the said release deed Ex. P-16 he will sell away the schedule property. The plaintiff, as such, filed the suit and claimed the above mentioned reliefs in the suit.
4. The defendant filed the written statement denying the plaintiffs case and asserting that the defendant is the actual and real owner of the suit schedule property on having acquired the same from the plaintiff out of her own free will on the basis of the release deed dated 29-11-1990 which deed the plaintiff had executed after receiving the valuable consideration and katha has been mutated in favour of the defendant-respondent. The defendant asserted that the plaintiff was never in possession of the suit schedule property at any point of time after the release deed and was residing along with her son in his house in the house at No. 13/5, 11th Cross, Pillanna Garden, Frazer Town, Bangalore. The defendant pleaded that the suit schedule property did not exclusively belong to the plaintiff and really it was purchased by C.K. Albert Victor, who was the paternal uncle and brother-in-law of both the plaintiff and defendant from Sri C. Muniswamy for Rs. 41,000/-. The defendant asserted that the deed in the name of the plaintiff was sham transaction and the real purchaser was Albert Victor. The defendant further alleged that the defendant has repaid a sum of Rs. 75,000/- to the plaintiff and then got the release deed executed from the plaintiff-appellant in his favour out of her own free will, free from coercion, fraud or misrepresentation. He admits that the sale deed dated 4-7-1984 ostensibly was no doubt in the name of the plaintiff-appellant. The defendant denied that he forced the plaintiff to go to the Sub-Registrar's Office on the pretext of obtaining loan and made her execute the release deed in favour of the defendant. The defendant asserts that the case pleaded by the plaintiff does not hold much water. The defendant took the plea that the plaintiff had kept silent for one and half years and this is a circumstance to show that her plea is incorrect. The defendant asserted that he is the rightful owner and the release deed is a legitimate document validly executed in favour of the defendant-respondent out of her own free will by the plaintiff after having received a sum of Rs. 75,000/-.
5. On the basis of the pleadings of the parties, the Trial Court framed the following issues:
1. Does the plaintiff prove release deed dated 29-11-1990 was taken by playing fraud, misrepresentation and coercion therefore, it is null and void?
2. Does the defendant prove the execution of the release deed dated 29-11-1990 by plaintiff in his favour on payment of Rs. 78,000/-?
3. Does the defendant prove the sale deed dated 4-7-1984 was ostensible in the name of plaintiff?
4. Does the plaintiff prove her lawful possession of the suit property?
5. Whether the Court fee paid is sufficient and valuation is proper?
6. Whether the plaintiff is entitled for the declaration and injunction?
7. To what reliefs the parties are entitled?
8. Whether the plaintiff proves that she is entitled to get vacant possession of the suit schedule property?
6. The Trial Court after considering the material placed on record opined and held as under:
(1) That the release deed Ext. D-1 executed by the plaintiff by receiving consideration of Rs. 10,000/-.
(2) That the defendant has failed to prove the sale deed dated 4-7-1984 was ostensible only in the name of the plaintiff and thereby held that really under the sale deed dated 4-7-1984 the plaintiff was the real owner and purchaser of the property.
(3) That the plaintiff has relinquished her right over the suit schedule property by executing the release deed the plaintiff is not entitled to the relief of possession. Having recorded these findings, the Trial Court dismissed the plaintiff's suit in toto.
7. Feeling aggrieved of the said judgment and decree of the X Additional City Civil Judge, Mayo Hall, Bangalore, dated 3-4-1997, the plaintiff has come up before this Court in appeal under Section 96 of the Code of Civil Procedure.
8. I have heard Sri K. Subba Rao, learned Counsel for the appellant assisted by Sri B.V. Gangi Reddy, Advocate and Sri Shakeel Abdul Ra-haman, learned Counsel for the respondent assisted by Sri V.J. Pranesh-waran, Advocate.
9. The learned Counsel for the appellant contended that the Court below acted illegally in dismissing the plaintiff's suit. He submitted that the Trial Court has definitely found that the plaintiff-appellant has been the absolute owner of the suit schedule property in view of the registered sale deed dated 4-7-1984 executed in her favour by the vendor. He submitted that the release of the property or right in the property can be only in favour of the person who is the owner of the property and not in favour of stranger, who has no right in the property. Apart from that the question is whether its execution proved or not. The deed in question if for a moment be taken to have been executed by the plaintiff even though termed as release deed, it could not be taken to be the release deed. The learned Counsel for the appellant contended that really it amounts to transfer deed and amounting to gift deed, because it is for no consideration and no consideration passed between the defendant and the plaintiff. The learned Counsel for the appellant contended that the Trial Court has found as well that the evidence of the defendant does not establish that he had paid Rs. 75,000/- or Rs. 78,000/- to the plaintiff and the findings which the Trial Court have recorded that the plaintiff received the consideration of Rs. 10,000/- is based on no evidence, except the mentioning of payment of Rs. 10,000/- in the deed in question itself. The learned Counsel contended that there is no evidence that it was for Rs. 10,000/- or no evidence has been produced about the payment of Rs. 10,000/- and no witness has been examined about the payment. The learned Counsel for the appellant, as such, contended that the deed in question and its execution even for a moment if is taken without consideration to have established then it is a gift deed. The learned Counsel contended that this deed could not be admissible for consideration in evidence in the case as gift deed in view of Section 68 of Evidence Act read with Section 123 of the Transfer of Property Act. It is provided in Section 123 of the Transfer of Property Act that for the purpose of making a gift of immoveable property the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. He submitted that under Section 68 of the Indian Evidence Act for proof of execution of document required by law to be attested it is provided 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. The learned Counsel contended that no attesting witness having been produced to prove the alleged execution of the deed. So the document Ext. D-1 cannot used as a piece of evidence and it could not be held to have executed and could not have been effective as the transfer of any property or property right in favour of the defendant-respondent.
10. The learned Counsel for the appellant further contended that the Court below really had not applied its mind to the real question and the main question. The plaintiff's case was that her signatures were obtained by misrepresentation to the effect that the plaintiffs signatures on the document were required for the purpose of obtaining loan and on that pretext the deed was got drafted and plaintiffs signatures were taken without the plaintiff being given opportunity to read the document and without its contents being explained to her and it is on the misrepresentation of the nature of the document the plaintiffs signatures were obtained. The learned Counsel contended that as the evidence of P.W. 1 clearly reveals these facts that the signatures of the plaintiff-appellant were obtained on the misrepresentation of the nature of transaction or nature of document. The deed in question has been illegal, null and void and the Court below acted illegally in dismissing the plaintiff's suit for declaration and possession.
11. The learned Counsel for the appellant has invited my attention to certain portions of the pleadings of the parties and the evidence of P.W. 1-Flora Margaret i.e., the plaintiff-appellant.
12. The above contentions of the learned Counsel for the appellant have hotly been contested by the learned Counsel for the respondent.
13. It has been contended by Sri Shakeel Abdul Rahaman, learned Counsel for the respondent firstly that the execution of the deed and the signatures on the release deed-Ext. D-1 have been admitted by the plaintiff in the course of her cross-examination in the witness-box. She had admitted to have signed the document and admits her signatures. Once she admits her signatures, the burden was on the plaintiff-appellant to establish mis-representation. The learned Counsel contended that the plaintiff-appellant is not entitled to the benefit of doctrine that is applicable in the matters of deeds executed by pardanashin and illiterate lady as the plaintiff is an educated woman well-conversent in English and Tamil languages. He submitted that there was no misrepresentation as such. He invited my attention to certain portions of the deposition of P.W. 1 as well as to the statements of D.Ws. 1 and 3 and submitted that she had executed the document out of her own free will and consent and it was for the plaintiff who had to challenge the document on the basis of fraud or misrepresentation to establish it. The learned Counsel for the respondent further contended that Section 68 of the Indian Evidence Act will not apply to this case. The defendant was the joint owner in respect of the property in dispute with the plaintiff. Though the sale deed was executed in the name of the plaintiff, so the deed in question executed by plaintiff will amount to a release deed. The learned Counsel contended that the deed is found to be for consideration of Rs. 10,000/-, so it could not be a gift deed. Hence Section 123 of the Transfer of Property Act and Section 68 of the Indian Evidence Act may not apply. I have applied my mind to this contention.
14. As regards the question of the execution of the deed and the question whether its execution has been proved to be a free mental act apart from being physical act, the burden definitely did lie on the person relying on the deed for title to prove the execution of the deed-Ext. D-1 which is termed as release deed which is dated 29-11-1990 to be physical and mental act. It means the defendant has to establish that the plaintiff had executed the deed out of her own free will with sound mind and understanding the deed and its nature, but no doubt the deed is challenged on the ground of fraud or misrepresentation and the person challenging the deed has to establish it. It is also well-settled that when both parties to the litigation have produced their evidence, then the question of burden loses its importance it remains the question of academic interest and it is for the Court to arrive at a finding after appreciating evidence led by both the parties.
15. The plaintiff in the plaint has very clearly specified the nature of misrepresentation in paragraph 8 of the plaint which reads as under:
"That the plaintiff further begs to submit that the defendant herein with an ulterior motive of grabbing the property has formed a criminal conspiracy with the intention of knocking away the schedule property has decided to cheat the plaintiff by not giving proper explanation, somehow managed to bring the plaintiff to the Mayo Hall Sub-Registrar's office under the pretext of the defendant obtaining her signature for the sake of getting a loan for house construction, forced the plaintiff to affix her signature without even allowing the plaintiff to know for what instrument and document the defendant wants to be signed and forced her to affix her signature to the release deed on 29-11-1990".
16. The plaintiff has indicated in the plaint when she came to know about the release deed having been obtained by playing fraud and misrepresentation etc., she protested and took action when she found that the defendant was threatening to sell the property.
17. The defendant in his written statement denied the said allegation and asserted himself to be the actual owner of the suit schedule property on the basis of the release deed dated 29-11-1990 which the defendant averred to have been executed by the plaintiff out of her own free will after receiving the valuable consideration. He further asserted that the plaintiff suggested that if the property was transferred in her name she could apply and obtain loan in her name from the Medical Department of E.S.I. hospital and it was in fact only ostensible sale for the purpose of obtaining loan for construction of the house. He admits that the loan was sanctioned and the house was constructed. The defendant alleged that the defendant repaid the amount of loan to the plaintiff and then the plaintiff had executed the release deed in favour of the defendant out of her own free will without any coercion or fraud as alleged. He further alleged that the plea of fraud or misrepresentation taken by the plaintiff is an afterthought. The defendant asserted that the release deed dated 29-11-1990 was a legitimate and legal document and has not been void.
When this has been the case of the parties that one party alleging that the document was got executed by misrepresentation and the other party asserting that it was for Rs. 75,000/-. The defendant-A. Lawrence has entered into the witness-box to prove the document and no attesting witness has been produced or no witness of the deed has been produced in this case to prove the document, except only C.K. Albert Victor has been produced as D.W. 3. No doubt, the plaintiff as P.W. 1 had admitted that her signature was taken on the deed, but P.W. 1 asserted and stated on oath that she did not execute the release deed. She asserted and deposed on oath that "the defendant came to my working place on 29-11-1990 at 11.30 a.m. and he took my signature as surety for the loan which has to be obtained by him. I was brought to Mayo Hall Sub-Registrar's Office. Without reading I put signature. I was in hurry to go back to duty. I was told that he wanted loan and nothing more". She further states that "when I went to pay tax to the suit property in March 1992, I learnt that the tax was to be paid in the name of my brother-defendant". Then I learnt about change of the same in respect of my property. Then I learnt that the defendant took release deed from me in respect of the suit property. When I enquired the defendant, he did not answer properly. The copy of the release deed obtained by me is Ext. P-16. In the course of cross-examination P.W. 1 admits that Ext. D-1 bears my signatures. My LTMs also there. I signed Ext. D-1 in the office of the Sub-Registrar. The plaintiff denied that the defendant paid Rs. 65,000/-towards the cost of construction or paid Rs. 10,000/- on the date of settlement deed-Ext. D-1. The plaintiff asserted on oath that it is false to say that I executed Ext. D-1 with full knowledge of the deed and its implication. I did not read Ext. D-1. It is false to say that after reading fully and understanding its contents I executed Ext. D-1. Again in paragraph 8 P.W. 1 in the course of her cross-examination states that it is false to say that I really executed the release deed after giving instructions on 29-11-1990 and gave false evidence now. Thus, it appears that according to the plaintiffs evidence, her signatures were taken on the pretext i.e., on misrepresentation that she had to sign the document as a surety for the loan which the defendant had to obtain or desired to raise and the contents of the deed were neither read by P.W. 1 himself, nor the contents of it were read over and explained to her. She signed the document treating that it was a deed of surety or co-obligant for securing the loan.
18. D.W. 1-A. Lawrence is the defendant himself i.e., respondent herein. In the course of evidence he has taken a stand which had never taken in his written statement. D.W. 1 states that one Mr. Hiregowdar drafted the release deed and got it typed. Plaintiff herself instructed to the lawyer. Plaintiff read the document put thumb impressions apart from signatures. I paid Rs. 10,000/- to the plaintiff in the presence of 2 witnesses at the time of registration at evening. Ext: D-1 was registered at 3.00 or 4.00 p.m. before the Sub-Registrar. This deposition of D.W. 1 per se appears to be false because the deed appears to have been presented and registered at 12.00 or 12.30, D.W. 1 states that he paid Rs.
10,000/- in the presence of two witnesses at the time of registration at evening. The registration was done and signatures were put at 3.00 or 4.00 p.m. in the evening when a sum of Rs. 10,000/- was paid to the plaintiff by D.W. 1. The deed shows that at 12.00 or 12.30 it was presented and registered. There is no mention that any money was paid before the Sub-Registrar. The defendant has also not produced any of the witnesses who are alleged to be present to prove payment at Sub-Registrar's Office, nor there is any mention by the Sub-Registrar in the document. So this falsifies the defendant's statement as D.W. 1. His further statement to the effect that on the date of Ext. D-1 my sister was on duty in between 3.00 and 4.00 p.m., Ext. D-1 was registered as mentioned earlier the timing is incorrect and wrong. D.W. 1 no doubt denies the plaintiff's case. D.W. 1 states that it is false to say that I told the plaintiff her signatures were required for getting a loan. D.W. 1 is an interested witness. I have pointed out the lie spoken by him already. If a person can tell one lie, he can tell many lies. In view of these facts and circumstances as emerge D.W. 1 cannot be said to be a reliable witness. The Trial Court also disbelieved the question of payment of Rs. 75,000/-or Rs. 78,000/-. His evidence further discloses that at the time when the deed was alleged to have been executed and signed the plaintiffs husband was not informed, why, it is not clear.
19. D.W. 3-C.K. Albert Victor during the course of his examination-in-chief has stated in paragraph 6 that the plaintiff executed a release deed in favour of the defendant in the year 1990. Myself, plaintiff, defendant, Bala and Henry were present at that time. Advocate Sri Hiregowdar drafted the release deed. The said release deed was executed in the Sub-Registrar's Office, Mayo Hall, Bangalore. It was a registered document. I see the document which is already marked as Ext. D-1. In cross-examination D.W. 3 has stated that the release deed was prepared one week prior to its registration. On the date of registration the plaintiff was on duty. It was about 11.00 a.m. defendant brought plaintiff from E.S.I. Hospital to the Sub-Registrar's Office, Mayo Hall, Bangalore. I was present already in the Sub-Registrar's Office when plaintiff reached there. I did not inform the husband of the plaintiff about the registration of the release deed. It was 12.30 p.m. when the release deed was registered. It is not true to suggest that the signature of the plaintiff obtained on the release deed stating that the said document was required for the purpose of obtaining loan. It is no where in the statement of D.W. 1 that at the time of registration this D.W. 3 was present. D.W. 3 further states that the defendant paid Rs. 10,000/- by cash at the time of registration. The said amount was paid between 11.00 and 11.30 a.m. This statement of D.W. 3 itself conflicts with the statement of D.W. 1. There is conflict in the statement of D.W. 1 and D.W. 3 per se reveals that he was not present. It is further falsifies from the circumstance that D.W. 1 has no where stated that at the time when the document was to be registered or going to be registered at the Sub-Registrar's Office D.W. 3 present, but D.W. 3 being too much interested tried to show his presence at the time of registration. He appears to be making false state-
ment. Therefore in above circumstances the defendant's evidence does not prove that even Rs. 10,000/- was paid by the defendant to the plaintiff. The two witnesses in whose presence the money was said to have been paid as per D.W. 1's statement, have not been produced to prove the payment. The plaintiff whatever evidence she could produce to prove misrepresentation or fraud made to her was herself a victim and witness thereof and she appeared as a witness and deposed. It is only witnesses of the deed who could have explained the situation and circumstances, who could have stated that whether it was the mental act of the plaintiff-appellant and that there was no misrepresentation or fraud done or made to the plaintiff about the nature and character of the transaction and they could have stated that the contents of the deed was read over and explained to her or she read the document, understood it and then signed it, but none of them has been produced by the defendant who was relying on Ex. D-1 as basis for his title to the suit property and burden lies on him to produce the attesting witnesses of the deed-Ex. D-1. There is no explanation or reason shown for their non-production. The Trial Court has made a wrong approach when it observes that the plaintiff has not produced the witness of the deed. That mere signature on the deed does not amount to execution or proof of execution. Proof of execution means, proof of execution as physical and mental act both. This has not been established. To rebut the statement of the plaintiff that she did not sign the deed as release deed, but she had signed the deed thinking and taking it that it was security for the loan which the defendant is going to take. The witness of the deed having not been produced, the plaintiff's statement goes unrebutted, because the evidence of D.Ws. 1 and 3 is as mentioned above not reliable. So in my opinion, the Trial Court's finding the defendant has proved the due execution of the document Ext. D-1 is incorrect. Its finding that the plaintiff failed to prove fraud or misrepresentation is also incorrect, as the plaintiff's statement really goes uncontroverted in the sense that the evidence of D.Ws. 1 and 3 is not reliable and the witnesses of the deed have not been examined. Further, I find much force in the first contention of the learned Counsel for the appellant that is such circumstances the payment of consideration has not been established which had been asserted by the defendant-respondent that he has paid Rs. 75,000/- and Rs. 10,000/- before the Sub-Registrar. That payment is not established. It is a fact as found earlier that the defendant had no title to the property in dispute and as in his deposition he claims that he got title to the property on the basis of the release deed only. It means he had no earlier interest or title therein. Release deed means the conveyance of a person's right or interest which he has in a thing or property to another that has the possession thereof or some estate therein. It is the relinquishment of some right or benefit to a person who has some interest in the property and such interest as qualifies him for receiving or availing himself of the right or benefit so relinquished (See Black's Law Dictionary, page 1290). The release can be made only in favour of a person who has got some title, right or interest in the property subject-matter of release itself and not in favour of a stranger. The deed in question has wrongly been called a release deed. The title may be transferred or conveyed may be made in favour of a stranger it may take the form of sale, gift, or in the form of Will to take effect after the death of testator. A gift is a transfer as per Section 122 of the Transfer of Property Act, made voluntarily and it should be without consideration. The complete absence of consideration is hallmark of gift which distinguishes the gift from other transaction for valuable or a desirable consideration.
20. The motive or purpose of gift is not to be confused with consideration which is the subject-matter of gift, love, affection or spiritual benefit and so any such factor may enter in the intention of the donor to make gift, but these filial consideration cannot be called to be consideration in law. It is the passing of monetary consideration that is foreign to the concept of gift. See Ku. Sonic Bhatia v State of Uttar Pradesh and Others.
21. In the present case, there is no transfer, even if for a moment Ex. D-1 is taken into consideration without going into the question of execution is for monetary consideration as passing of any monetary consideration is not established by evidence of D.Ws. 1 and 3. That the plaintiff has paid Rs. 75,000/- and/or paid at the time of registration Rs. 10,000/-has not been established by any cogent evidence.
22. The deed-Ext. D-1 could only be taken to be a gift deed in that case. Section 123 of the Transfer of Property Act, requires the specific mode in the matter of execution of gift of immoveable property. That gift of immoveable property can be made only by the execution of the registered deed attested by two witnesses. Section 123 of the Transfer of Property Act, reads as under:
"123. Transfer how effected.--For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses".
23. The law prescribes this specific mode that it must be effected by a registered instrument or deed signed by or on behalf of the donor and attested by at least two witnesses. Section 68 of the Indian Evidence Act, 1972 required the production of at least one of the attesting witness to prove its execution. Thus it provides specific mode of proof of execution of the document as is required by law to be attested and reads -- "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 the execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. That compliance with the provisions of Section 68 or 69 of the Indian Evidence Act is necessary to make gift deed admissible in evidence. See
(a) Lachman Singh v Surendra Bahadur ;
(b) Balappa Tippanna v Asangappa Mallappa and Another;
(c) Brij Raj Singh (dead) by L.Rs and Others v Sewak Ram and Another.
24. That none of the attesting witnesses of the deed-Ext. D-1 has been examined by defendant-respondent in this case to prove the execution thereof. The deed-Ext. D-1, dated 29-11-1960 could not be used as evidence and its execution cannot be said to have been proved even apart from the fact the evidence of D.Ws. 1 and 3, who are not the attesting witnesses, is and has been found to have been unreliable.
25. Thus considered, in view of the above the Trial Court ought to have decreed the plaintiffs suit for declaration and held deed-Ext. D-1 to be illegal, null and void and not to have been proved and established to have been executed validly and after the Trial Court having found that the plaintiff was the owner of the property in dispute vide the registered sale deed dated 4-7-1984 and the defendant claim title only on the basis of the release deed-Ext. D-1. The Trial Court should have granted the second relief of mandatory injunction directing the defendant to handover vacant possession of the suit schedule property to the plaintiff-appellant and granted some time to handover vacant possession and provided that in case the defendant-respondent fail to do so, the plaintiff should have been allowed to seek execution of decree of mandatory injunction directing the defendant to handover vacant possession of the suit schedule property. Thus considered in my opinion, the judgment and decree of the Court below dismissing the plaintiff's suit suffers from error of fact and law. Hence the judgment and decree of the Trial Court is hereby set aside, whereby the Trial Court has dismissed the suit of the plaintiff-appellant.
26. The Regular First Appeal, as such, is hereby allowed.
The plaintiff-appellant's suit is decreed holding that Ext. D-1, dated 29-11-1990 to be invalid, null and void as well as for direction in the nature of mandatory injunction directing the respondent-defendant to handover vacant possession of the suit schedule property to the appellant-plaintiff within a period of six months from today. In case the defendant fails to do so, it will be open to the appellant-plaintiff to execute the decree and to take possession from the respondent-defendant.
The Regular First Appeal is allowed and the suit of the appellant-plaintiff is decreed with costs of both the Courts.