Orissa High Court
Smt. Nishamani Singh vs Nishamani Dibya And Ors. on 18 February, 2003
Equivalent citations: AIR2003ORI123, AIR 2003 ORISSA 123, (2003) 7 INDLD 941
Author: Basudev Panigrahi
Bench: Basudev Panigrahi
ORDER Basudev Panigrahi, J.
1. The plaintiff in O.S. No. 17/ 11 of 1980/78-1 is the appellant against the dismissal of her suit for declaration of right, title and interest over the suit land on the strength of a registered gift deed dated 26-7-71, vide Ext. 1, executed by the defendant/respondent No. 1, for confirmation and/ or recovery of possession.
2. The appellant's case in the trial Court is that originally the suit property belonged to the husband defendant-respondent No. 1. Since her husband died issueless, defendant No. 1 as the sole successor enjoyed the suit property by remaining in exclusive possession thereof. There was none to look after her property and whenever she used to fall ill, the appellant who is her maternal niece, used to look after her. So, the appellant went to defendant-respondent No. 1's house and started nursing her. Gradually, the defendant-respondent No. 1 reposed faith and confidence in the plaintiff-appellant. Accordingly, the defendant No. 1 voluntarily executed a registered gift deed dated 26-7-71 in favour of the plaintiff vide Ext. 1 after the contents of the said gift deed were read over and explained to her and she having understood the contents to be correct before execution and registration of the same. She delivered possession of the suit property immediately after execution of the documents. So the right, title and interest over the suit property had vested in the plaintiff. She also started collecting paddy from the suit land and making necessary annual repairs of the gifted house. While the appellant continued to stay in the house of the donor/respondent No. 1, the defendant No. 3 who was then reading in Khurda College requested her to let out a room. Accordingly he stayed as a tenant on a monthly rental at Rs. 50/-. The appellant used to bear all the expenses of respondent No. 1. After some time, it appeared that the plaintiff had taken ill and was required to come to Cuttack for her treatment. Taking advantage of her temporary absence, defendant No. 3 gained confidence of defendant No. 1 on account of her old age and solitary living and got the gift deed cancelled by executing another deed of cancellation on 25-11-1975 and also simultaneously got a trust deed executed on 31-5-76 in favour of the family deity of defendant No. 1 in respect of the suit property describing defendant No. 3 as the trustee. It is alleged that after the gift deed was created in favour of the plaintiff, defendant No. 1 had no further right, title and interest over the suit property so as to create a trust deed on 31-5-1976. Since such a document is invalid, unlawful and inoperative in law and was created for the purpose of defeating the plaintiffs right, she, therefore, filed a suit for declaration of her right, title and interest and consequently cancellation of the trust deed dated 31-5-76 and for delivery of possession of the suit property.
3. The respondent Nos. 1 and 3 have filed a joint written statement whereas respondent No. 4 filed a separate written statement, but, in the light of the written statement filed by respondent No. 1 it has been alleged in their written statements that the gift deed dated 26-7-1971 was not voluntarily executed, but it was fraudulently obtained by making a false representation that the defendant No. 1 would execute a power of attorney in favour of plaintiffs husband to look after the suit property. The further plea taken by defendant-respondent No, 1 is that she had never consciously executed the gift deed in favour of the appellant and there was no valid attestation as required under law. The other plea by the respondent No. 1 was that she could only detect the fraud when the plaintiff claimed ownership over the suit property on the strength of the purported deed of gift which according to her was meant to be only a power of attorney. The defendant No. 1 had, therefore, felt the necessity for cancellation of document. There was no delivery of possession pursuant to the execution of the said gift deed. Defendant No. 3's plea is that on 31-5-1976, the defendant No. 1 created a trust deed in favour of the family deity appointing defendant No. 3 as its trustee as he was a disciple of her Gurudeb Professor Radha Charan Das. The defendant No. 1 notwithstanding the execution of the trust deed, dated 31-5-76 as usual exercised her right of ownership over the suit by selling some paddy lands to defendant No. 4 for a consideration of Rs. 13,000/- and delivered possession of the same to defendant No. 4. Since, the document dated 26-7-1971 purported to be a gift deed alleged to have been executed by defendant No. 1 was an out-come of fraud, misrepresentation and inducement, therefore, no right had accrued to the appellant. With the above pleadings, the respondents prayed for dismissal of plaintiff's suit.
4. Upon hearing the rival contentions raised by the parties, it has emerged that the facts of this case lie within a narrow compass as to whether the defendant No. 1 consciously and knowingly executed the deed of gift dated 26-7-1971. It is alleged by the plaintiff that the defendant No. 1 executed the document vide Ext. 1 after having understood the contents of the same and with full consciousness. But. the defendant No. 1 has denied to have executed any document knowing it to be a gift deed. It is her case that plaintiff had taken her signatures in a document after giving her an understanding that it was merely a power of attorney for managing her properties. So, she contributed her signature on Ext. 1 with the understanding that it was nothing but a power of attorney. In this case, apart from the plaintiff who examined herself as P.W. 1, another witness, who was the scribe of Ext. 1 was examined as P.W. 2, Ext. 1/1 was the only signature of defendant No. 1 which was marked waiving the formal proof. The respondent No. 1 although admits her signature on the deed but strongly denied the contents of the same to be her conscious execution. P.W. 2 was the scribe of the document and he claimed himself to be one of the attesting witnesses to prove that the contents of Ex. 1 were read over and explained to defendant No. 1 who after having understood the contents admitted them to be correct and thereafter she signed thereon.
5. From the evidence of P.W. 1, the plaintiff herself, it is embodied that on the date of registration of Ext. 1 the defendant No. 1, the plaintiff, her husband and her eldest son went to the Sub-Registrar's Office. Besides these persons, she was unable to state as to who else were present. She also could not say as to who identified defendant No. 1 before the Sub-Registrar. It has further revealed that she could not remember as to who was the other attesting witness, let alone, his signature on the deed.
6. Learned counsel appearing for the appellant has advanced a formidable plea that the possession of the gift deed with the plaintiff would unmistakably establish that the gift deed was accepted. It is true that there are several modes of acceptance of the deed of gift; One such mode was acceptance of gift deed. But in this context the defendant No. 1 has taken the plea that she executed the document under the impression that it was a power of attorney. It is normally expected that such document; will remain with the person who has been appointed as a power of attorney holder. But in this case, there is nothing on record to show that the plaintiff remained in possession of the suit land following exeeution of the gift deed. It is true that some letters were used to be written by the defendant No. 1 to the plaintiff. But from the contents of the letters, nothing can be spelt out that the gift deed was the conscious act of the defendant No. 1 P.W. 1 the plaintiff, during her chief and cross-examination did not whisper any statement with regard to attestation, therefore, the Court suo motu recalled P.W. 1 for the purpose of proving the attestation. Even then, P.W. 1 significantly failed to prove attestation of the said document. It is her consistent statement that she does not remember if anybody else was present at the time of execution of the document. P.W. 2 was the scribe of the document at the instance of defendant No. 1. From the statement, it does not appear as to who else was present at the time of execution of the document. In law nothing precludes's a scribe to become an attesting witness after he signed in the capacity of scribe and at another place he can also sign as an attesting witness. In this case, he was examined as scribe as well as attesting witness.
7. The trial Court had laid undue emphasis on the tatters sent, by defendant No, 1. There is no denial of the feet that the defendant No. 1 is a literate lady, Merely because, she was literate, no presumption in law ean arise that she executed the document after having fully understood the contents. He it noted here that the execution of the document is itself doubtful. From the resume of P.W, 1's evidence it appeared that the registration was completed between 0 or 10 a.m. whereas the attesting witness, P.W. 2 stated that it was completed at 2,00 p.m. Of course, there is no major inconsistency except a mere discrepancy regarding timing of registration while Judging broad probabilities of the case, this can be safely Ignored.
8. Main controversy centers round in this case is whether in law the document purported to be a gift, deed has been properly proved. In proving a deed of gift the provisions of Section 123 of the T. P. Act read with Section 3 thereof are bound to be complied with. The above provisions are substantive law, whereas attestation is required to be proved under Section 68 of the Evidence Act as the procedural part.
9. While proving a gift deed, three essential requisites are to be satisfied;
(i) The document must be in writing and executed by the donor;
(ii) The document must be registered; and (iii) It must be attested by at least two witnesses.
10. The mode of proving of attestation has been laid down in Sections 68 to 71 of the Evidence Act. While proving a gift deed, at least one attesting witness should be examined. But the proviso to Section 68, however, postulates that if execution and attestation of the document Is not specifically denied, it would not be obligatory on a party relying on the gift deed to examine an attesting witness. It is the cardinal principle of law that when there is no specific denial of execution or attestation of the document, then, it does not obligate a person relying on the document to prove the signature of the attesting witnesses.
11. In the instant case, looking to the, requirement of Section 123 of the T. P. Act, if the fact-situation of this case is adverted to, it is found that defendant No. 1 has specifically denied the execution of the document. In this background, reliance can be placed on a judgment reported in Vol. (1967) 33 Cut LT 811 in the ease of Sita Dakuani v, Rama Chandra Nayak, wherein it has been held as follows :
"In the present ease as we have already seen P,W, 2 and even P.W. 1 has made no reference at all about any other witness attesting the document. In view of that position, it cannot be said that ext, I was duly attested within the meaning of Section 3 of the Transfer of Property Act and as such it cannot be enforced as a mortgage-bond as it falls short of the requirements of Section 59 of the Transfer of Property Act. The order of the appellate Court is accordingly set aside and the plaintiff's suit must be dismissed,"
12. The correctness of the aforesaid decision was challenged in Letters Patent Appeal in this Court, reported in ILR 1967 Cut 593 in the case of V. Sita Dakuanl v. Ram Nayak. The Division Bench after discussing the entire position of law approved the observation of the learned single Judge and stated that Insofar as the defendant No. 3 is concerned, the execution of mortgage deed was not proved. Accordingly, the suit was held to have been dismissed against him. It has been held:
"The position, so far as Defendant No. 3 is concerned, stands on a different footing. He has not admitted execution and contended that it is not valid and binding on him. So far as he is concerned, Section 70 of the Evidence Act cannot be pressed into aid and attestation has to be proved. As admittedly the evidence adduced in this case falls short of the requirement of proof of valid attestation, the plaintiff would not be entitled to obtain a mortgage-decree against Defendant No. 1. The suit as against him must stand dismissed,"
13. Therefore, from the aforesaid discussions, it can be gathered that a person who wants the document to be sustained must prove its due attestation, where the execution of such document has been denied.
14. Once it is held that the execution of gift deed was never the conscious act of defendant No. 1, the other aspects regarding creation of a trust deed or execution of a sale deed appear to be mere academic.
15. The learned counsel appearing for the appellant has placed reliance on the judgment reported in (2002) 93 Cut LT 395 : (2002 AIHC 2147), in the case of The New India Assurance Co. Ltd. v. United Commercial Bank. On a close reading of the facts of the case referred to above, it has appeared that only the execution of the document was in dispute. The Xerox copy of the document was marked without objection. Thus at the appellate stage, admissibility of such document could not have been raised by either party. But such principle cannot be stretched to the present case. Further, reliance was placed on a decision, reported in AIR 1997 Orissa 131 in the case of Smt. Sanjukta Ray. v. Bimelendu Mohanty. On a close reading of the facts of that case it has appeared that the donee received possession under a gift deed which was challenged after 30 years. Therefore, this Court accepted the gift deed to be genuine one in the circumstances stated therein.
16. Merely signing on a document would not tantamount to conscious execution and it requires something more. Where the signature of a person on a document is obtained on misrepresentation, there is no proper execution of the deed in the eye of law. The execution does not mean mechanical act of signing the document or getting it signed without understanding the contents thereof. The executant should have appreciated and understood the contents of the documents. But to put it differently, signing of the document should be after understanding the contents thereof and execution of the document implies that the executant intended to execute with conscious appreciation of the contents mentioned therein.
17. An incontrovertible plea has been advanced by Mr. Murty, the learned counsel appearing for the respondents that in a case of gift of immovable property, the donee must prove that the gift deed was properly attested. The act of attestation must be done 'animo attestandi' i.e. for the purpose of attesting and that the attesting witness had seen the executant signing the deed. In other words, if a person puts his signature for some other purpose, i.e., to satisfy that he is a scribe or an identifier or a Registering. Officer, he cannot be shown as an attesting witness. The executant has to see, before a document is validly executed, whether his signature is there or not and atleast, there are two witnesses who signed before him. The person who signed as an attesting witness has also to satisfy himself that he received personal acknowledgement of the execution of the document from the executant. After the deed is signed and attested, it is taken for registration. If the previous signing of the document by the executant and the previous attestation by the attesting witnesses are dispensed with, the guarantee of genuineness required under Section 123 of the T. P. Act is lost. The Hori'ble Supreme Court in a recent judgment reported in (2003) 1 Cut LT 21 : (AIR 2003 SC 761) (SC) in the case of Janki Narayan Bhoir v. Narayan Namedeo Kadam held that:
"Where the attesting witness, who is called to prove the execution, is not in a position to prove the attestation of the Will by the second witness, the evidence of the witness called falls short to the mandatory requirements of Section 68. Section 71 of the Evidence Act can only be requisitioned when the attesting witnesses who have been called failed to prove the execution of the Will by reason of either denying their own signatures or denying the signature of the testator or having no recollection as to the execution of the document. This section has no application when one attesting witness has failed to prove the execution of the Will and other attesting witnesses were available who could prove the execution if they were called."
18. Therefore, considering the case from every angle and also on a careful cogitation of the evidence, it is found that the plaintiff has significantly failed to prove the valid attestation.
19. In the result, I have no other option, but to dismiss the appeal. Accordingly, the judgment and decree passed by the trial Court are hereby upheld, but in the circumstances parties are directed to bear their own costs.