Kerala High Court
Rajeev vs Bharathi on 17 July, 2014
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
THURSDAY, THE 17TH DAY OF JULY 2014/26TH ASHADHA, 1936
RSA.No. 612 of 2014 ()
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OS.NO. 45/2002 OF MUNSIFF COURT, HARIPAD
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AS.NO.27/2007 OF ADDL.DISTRICT COURT-II, MAVELIKARA
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APPELLANT/APPELLANT/DEFENDANT:
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RAJEEV, S/O.VELAYUDHAN,
CHERIYIL VEETTIL, MAHADEVIKADU MURI,
KARTHIKAPALLY VILLAGE.
BY ADV. SRI.K.P.SUJESH KUMAR
RESPONDENT/RESPONDENT/PLAINTIFF :
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BHARATHI, W/O.VELAYUDHAN,
IDAKKATTU PADEETATHIL, MANGALAM MURI,
ARATTUPUZHA VILLAGE-696 311.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 17-07-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
sts
P.BHAVADASAN, J.
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Regular Second Appeal No.612 OF 2014
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Dated this the 17th day of July, 2014.
J U D G M E N T
The defendant in O.S.No.45/2002 who suffered a decree at the hands of the Munsiff Court, Haripad which was confirmed in appeal is the appellant. The facts necessary for the disposal of the appeal are as follows.
2. One Velayudhan was the owner of the suit property. His wife was Bharathi and he had two children in the wedlock namely, Suresh and Sujatha. As per the averment in the plaint, by Ext.A1 gift deed dated 22.07.1957, Velayudhan gifted the property which he is owned to two of his children who were minors at the relevant time. However, Velayudhan reserved his rights to take income from the property till his life time. It would appear from the records that later on Velayudhan left the company of the plaintiff in the suit, the legally wedded wife of Velayudhan, and took up residence with one Ponnamma in which relationship the defendant was born.
R.S.A No.612/2014 2
3. As per the allegations, Velayudhan and Ponnamma executed Ext.B1 sale deed dated 29.12.1992 in favour of defendant. The recital in the document shows that Velayudhan acquired the share left by Suresh who was not heard of for a long time and was presumed to be dead. The plaintiff, who is the legally wedded wife of Velayudhan, instituted the suit seeking to restrain the defendant from interfering with the possession of plaintiff of the plaint schedule property on the ground that even assuming that Suresh is presumed to be dead, Velayudhan does not inherit any right over the property and the plaintiff being a class 1 heir of Suresh is entitled to the share of Suresh. She therefore laid the suit for declaration and injunction.
4. The defendant resisted the suit. It is seen that the execution of Ext.A1 gift deed was admitted. The defendant sought to sustain his claim by pointing out that as Suresh in whose favour Ext.A1 gift deed was executed by Velayudhan was not heard of for a long time, he is presumed to be dead as per law and the share of Suresh had devolved on Velayudhan. Velayudhan and Ponnamma had executed Ext.B1 in favour of the R.S.A No.612/2014 3 defendant of that share Velayudhan inherited on the presumed death of Suresh and he claims to be a valid document and therefore he claimed right of property on the basis of Ext.B1 dated 29.12.1992. He therefore prayed for dismissal of the suit.
5. The court below raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 4 and the documents marked as Exts.A1 to A7 from the side of the plaintiff. DWs 1 and 2 were examined by the defendant and Ext.B1 was marked. Exts.C1(a) and C1(b) are the commission report and mahazar.
6. Both the courts below, on evaluation of the evidence, came to the conclusion that Ext.A1 gift deed was a binding document and had come into effect and therefore the minor children of Velayudhan namely, Suresh and Sujatha had acquired rights over the property. The courts below also found that Sujatha, the daughter of Velayudhan, had sold a portion of her property to one Reghu. The courts below found that there was no plea to the effect that the parties were governed by Marumakkathayam or by any other personal law. As per R.S.A No.612/2014 4 Section 8 of the Hindu Succession Act, the property of a male Hindu died intestate shall devolve according to the provisions of that Act. If that be so, even assuming that Suresh, the son of Velayudhan, is no more, the only person who could have obtained his rights is the plaintiff or the class I heir. Holding that Ext.B1 can have no effect regarding the share of Suresh, the trial court decreed the suit in favour of the plaintiff which was confirmed in appeal.
7. Learned counsel appearing for the appellant mainly contended that Ext.A1 gift deed was invalid in law for the simple reason that it does not conform to the requirements of Section 123 of the Transfer of Property Act in the sense that it was not attested by two attesting witnesses and if that be so, the requirements of law are not satisfied and the deed cannot be taken to be valid.
8. It is seen from the judgment of the lower appellate court that the same point was argued before the said court and several decisions to that regard were relied on. Both the courts below have noticed that there is no such plea in the written statement. R.S.A No.612/2014 5 In fact, in the written statement filed by the defendant, he admits execution of document and stands by the same. His specific plea was that gift deed was come into effect whereby Suresh had obtained rights over the property as per the gift deed namely, Ext.A1. Since the whereabouts of Suresh was not known, he was presumed to be dead and therefore, his rights devolved on Velayudhan, the father of Suresh, and Velayudhan by virtue of Ext.B1 had assigned that right in favour of the defendant. Both the courts below have noticed that there was neither challenge to Ext.A1 nor was any infirmity pointed out with respect to that document. In fact, the defendant traced his title to the said document. A copy of Ext.A1 was made available for perusal. It is seen attested by two persons. True, it may not as such indicate that scribe is signed as an attesting witness. The position of the signature indicates that he has signed as an attesting witness. Further, there was no challenge to that document.
9. There is no case for the defendant that Ext.A1 gift deed was bad in law for want of attestation in accordance with Section R.S.A No.612/2014 6 123 of Transfer of Property Act. Since there was no plea in the written statement and since there was no issue raised in that regard, there was no occasion for the plaintiff to meet that issue.
10. As far as the proof of Ext.A1 gift deed is concerned, Section 68 of the Indian Evidence Act deals with the said situation. Section 68 reads as follows:
"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".
11. What is relevant in the context is the proviso where in the case of document other than a Will need to call an attesting witness arises only if execution is specifically denied. In the case on hand, it is significant to notice that execution of Ext.A1 is R.S.A No.612/2014 7 admitted by the defendant who is appellant herein and he traced his title as per Ext.B1 to the gift deed Ext.A1 by which Suresh derived rights over the property.
12. Learned counsel appearing for the appellant contended that the question of attestation is a pure question of law and therefore it could be raised at any point of time. It cannot be said to be a pure question of law. It is a mixed question of fact and law. The question as to whether the scribe has attested as an attesting witness depends upon the facts of the case and if it is found that his signature can be taken as attesting witness, then there is no infirmity attached to the document. First of all, there was no contention that Ext.A1 gift deed was bad in law for want of proper attestation.
One cannot omit to note that Ext.A1 document was produced along with the plaint and therefore it forms part of the main contention of the plaintiff. Apart from the above fact , there was no specific challenge to the validity of Ext.A1. In fact the defendant claimed possession of the property covered by Ext.B1 sale deed executed by Velayudhan and Ponnamma in his R.S.A No.612/2014 8 favour tracing title to Ext.A1 document. Under such circumstances, it is idle for the appellant to contend that Ext.A1 document is invalid in law. Both the courts below have considered these aspects and the belated attempt to show that Ext.A1 is bad in law for want of proper attestation is without any basis whatsoever. It is a clear afterthought and it deserves no consideration at all.
The appeal is without merits and it is accordingly dismissed.
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P.BHAVADASAN JUDGE smp // True Copy // P.A. to Judge.