Telangana High Court
Nagaram Mohan Reddy vs Sathu Shashidhar Reddy on 12 September, 2022
Author: M. Laxman
Bench: M. Laxman
THE HON'BLE SRI JUSTICE M. LAXMAN
SECOND APPEAL No.180 OF 2022
JUDGMENT:
1. The present appeal has been directed against judgment and decree dated 31.01.2022 passed in A.S.No.28 of 2018 by the IX Additional District Judge, Sircilla, wherein and whereby the judgment and decree dt.29.12.2011 passed in O.S.No.12 of 2009 by the Senior Civil Judge, Sircilla, was confirmed. The said suit was filed by the respondent No.1 herein for declaration of title and for recovery of possession and the same was decreed by the trial Court and in the appeal, it was confirmed. Hence, the present second appeal.
2. The present appeal is at the instance of the defendants. The respondent No.1 herein is the plaintiff. Respondent No.2 is defendant No.3. For brevity, the ranks of the parties as they were referred in the suit, is maintained.
3. The sum and substance of the case of the plaintiff is that, the grandfather of plaintiff late Sathu Laxmaiah was the original owner and possessor of suit property and out of love and affection, he executed a Gift (Settlement) Deed in favour of plaintiff in respect of suit property vide Gift Deed document No.2010 of 2004 dt. 27.08.2004, and 2 ML,J SA No.180 of 2022 consequently mutation was effected and the plaintiff has been in continuous possession of the suit property. The defendants without any right and title, dispossessed the plaintiff. Hence, the present suit.
4. The case of the defendants is that, their ancestor Narayana Reddy was the owner and possessor in Sy.No.145/D admeasuring Ac.4-06 gts., and one Agam Reddy was his brother. The defendants are the descendants of Agam Reddy and they have absolute right and title over the suit property which included in the larger extent of Ac.4-06 gts., They disputed the execution of Gift Deed at one stage and they also claimed that the mother of the plaintiff hatched a plan with the grandfather of the plaintiff (i.e. executant of Gift Deed) and brought the registered Gift Deed Document without any right or title over the suit property. Therefore, the plaintiff is not entitled for any declaration and recovery of possession.
5. Basing on the above pleadings, the primary Court framed the following issues:
1. Whether the Gift Deed dt. 27.08.2004 in favour of the plaintiff is true, valid and binding on the defendants?
2. Whether the plaintiff is the owner of the plaint schedule property?
3. Whether the plaintiff is entitled for a declaration that he is owner of the plaint schedule property?
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4. Whether the plaintiff is entitled for recovery of plaint schedule property from defendants No.1 and 2?
5. Whether the plaintiff is entitled for mutation of his name in the revenue records in respect of the plaint schedule property by deleting the names of defendants No.1 and 2?
6. To what relief?
6. The plaintiff in order to prove his case examined PW.1 and relied upon Ex.A1 to A9. On behalf of defendants, DWs 1 and 2 were examined and got marked Ex.B1 to B13.
7. The trial Court held that the plaintiff proved the title to the suit property and consequently, the suit was decreed and the same was confirmed in the appeal. Hence, the present second appeal.
8. Learned Counsel for the appellants/defendants contended that both the Courts below have not considered the legal effect of pleadings that the suit property admittedly is an ancestral property. Therefore, the Gift Deed executed by Laxmaiah is not a valid document since Laxmaiah was one of the coparceners among many and he is not entitled to deal with the property by way of Gift. It is also his contention that the certified copy of the document was marked without any foundation for leading secondary evidence, and therefore, it gives substantial question of law. It is also his contention that the Gift was not properly proved by examining the attestors. Thus, the plaintiff suit must fall to ground. Therefore, the 4 ML,J SA No.180 of 2022 findings of both the Courts below suffer from perversity. In support of his contention, he relied upon the following judgments:
1. In J. Yashoda Vs. K. Shobha Rani1 wherein in the Hon'ble Apex Court held that "for adducing secondary evidence it is necessary for the party to prove existence and execution of the original document and conditions laid down in Section 65 of Evidence Act must be fulfilled before secondary evidence can be admitted.
2. In Dwarampudi Nagaratnamba Vs. Kunuku Ramayya and another2 wherein at para No. 6 it is held that "Venkatacharyulu was free to make a gift of his own property to his concubine. The gifts under Exts.A-1 and A- 2 were not hit by Section 6(h) of the Transfer of Property Act. But the properties gifted under Exs. A-1 and A-2 were coparcenary properties. Under the Madras School of Mitakshara law by which Venkatacharyulu was governed, he had no power to make a gift of even his undivided interest in the coparcenary properties to his concubine. The gifts were therefore invalid."
3. In K. Laxmanan Vs. Thekkayil Padmini and others3
4. In Krishnan Assari Velayudhan Assari Vs. Parameswaran Pillai Madhavan Pillai4
5. In State of Rajasthan Vs. Khermraj5 1 (2007) 5 SCC 730 2 AIR 1968 SC 253 3 AIR 2009 SC 951 4 AIR 1989 KERALA 163
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9. The contention of learned Counsel for respondent/plaintiff is that there is no specific denial of execution of the Gift Deed document and denial was vague and inconsistent. At one stage, specifically denied the execution of Gift Deed and at another stage, the defendants claimed that the document was created by the plaintiff in collusion with the executant i.e. grandfather of the plaintiff. The defendants also claimed that the Gift Deed is a sham document, and when the document is sham, it implies the execution of the document. According to him, there is no specific denial of execution of the document and the same was noticed by the trial Court and First Appellate Court and held that document is proved, and the said findings does not require any interference by this Court.
10. The other contention of learned Counsel for respondent/plaintiff is that the certified copy of the document was allowed to mark without any objection. When there is no objection and once the document is received in evidence, it cannot be held that the document was not properly proved. If such plea was taken earlier, the party had an option to get the original document produced in evidence. As such, the said contention of defendants is also not permissible. Lastly, contended that Section 68 and its proviso of the Indian Evidence Act clearly dispense with examination 5 AIR 2000 SC 1759 6 ML,J SA No.180 of 2022 of attestors if the registered document compulsory attestable document is produced, except Will Deed. According to him, there is no denial of execution by the executant, as such, there is no requirement to examine the attestors. In support of his contentions, he relied upon the following judgments:
01 In Dayamathi Bai Vs. K.M. Shaffi 6 02 In R.V.E. Venkatachala Gounder Vs. Arulmigu Vishwesaraswami & V.P. Temple7 03 In K. Chelliah Servai Vs. P. Muthusami Servai8 04 In Biswanath Agarwalla Vs. Sabitri Bera9 05 In Surendra Kumar Vs. Nathulal10 06 In Dr. K.I.Askari Vs. Nawab Mir Barkat Ali Khan @ Waleshan Prinice Mukkaram Jah Bahadur, HEH the Nizam VIII11 07 In Vedachala Chettiar Vs. Ameena Bi Ammal12
11. A reading of the written statement of the defendants, it shows that at one stage they denied the execution of the registered Gift Deed. At another stage, it is pleaded that plaintiff's mother in order to deprive the rights of the defendants over the plaint schedule property, hatched a plan with the grandfather of the plaintiff (executant) to execute a registered Gift (settlement) Deed in favour of plaintiff though grandfather was not having any right over the suit property. At other stage, it is pleaded that 6 (2004)7 SCC 107 7 (2003)8 SCC 752 8 1995 Supp(1) SCC 202 9 (2009) 15 SCC 693 10 (2001) 5 SCC 46 11 2010(4) ALD 244(DB) 12 AIR 1944 MADRAS 121
7 ML,J SA No.180 of 2022 the document is a sham document. The cross-examination of PW.1 also shows that there is no specific denial of plaintiff's claim that the document was executed by grandfather of the plaintiff. A reading of the pleadings as well as the evidence clearly show that there is no specific denial. The denial is wavering. In the light of no specific denial, there is no requirement of examination of attestors.
12. Learned Counsel for plaintiff has relied upon the decision of the Apex Court in the case of Surendra Kumar Vs. Nathulal (referred supra) wherein the Hon'ble Apex Court held at para No.13 as follows:
Section 123 of the Transfer of Property Act, 1882 provides:
"123: Transfer how effected.- For the purpose of making a gift of immovable 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.
In the present case there exists a registered deed of gift signed by the donor and attested by two witnesses. Therefore, the requirement of the law as incorporated in the Section is satisfied. Section 68 of the Indian Evidence Act, 1872 makes a provision regarding proof of execution of a document required by law to be attested. Therein it is laid 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 there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
The proviso to the section, which is relevant for the present purpose, reads:
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.
8 ML,J SA No.180 of 2022 (Emphasis supplied) On a plain reading of the proviso, it is manifest that a registered deed of gift can be received in evidence without examining one of the attestors if the person who has executed the deed of gift has not specifically denied its execution."
A reading of above judgment would show that examination of attestors is not required when the registered Gift Deed is not denied by the executant. The executant was examined as one of the witnesses and on examination the executant has confirmed the execution. In the said circumstances, it was held that the examination of attestors is not required.
13. The learned Counsel for the defendants relied upon the Krishnan Assari Velayudhan Assari Vs. Parameswaran Pillai Madhavan Pillai (referred supra) wherein the Hon'ble Apex Court held at para No.35 as follows:
"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."
A reading of above judgment would shows that a third party to the document can also question the execution of the document. When such execution is challenged and when the executant is not 9 ML,J SA No.180 of 2022 admitting the execution of the document, the examination of two attestors is compulsory.
14. In the context of proviso to Section 68 of the Indian Evidence Act, there must be admission of executant which dispense with the examination of witnesses. Without admission from the executant, the requirement of examining two attestors cannot be dispensed with even though the document is registered. Therefore, the contention of the learned Counsel for appellants/defendants is not merited.
15. The other contention raised by the learned Counsel for appellants/defendants is that the suit property is an ancestral property of executant and he had no right to execute the document. There is no doubt that a coparcener's interest in the undivided coparcenary property cannot be gifted. However, once the coparcenary interest gets extinguished by various modes, the ancestral property can be gifted away. In the present case, there is no foundation in the pleadings that the coparcenary was intact when the Gift Deed document was executed. The evidence on record shows that there was partition in the year 2004 and thereby the coparcenary interest gets extinguished. PW.1 admitted that executant was not given any share in the property. It is contrary to the 10 ML,J SA No.180 of 2022 evidence on record which clearly shows that executant was holding right and interest over the property.
16. The learned Counsel for appellants/defendants submitted that in the first appeal the pahani was not marked, however, it was read in evidence. He requested to remand the matter for marking of the document. I do not find any merits in his contention since technicality of non-marking of the document does not require remand of the matter. Once rightly or wrongly the document is received in evidence by way of application which is unchallenged by the plaintiff and said document was also read in evidence and it was referred in assessing the evidence. Therefore, remand is unwarranted.
17. Both the Courts below have rightly appreciated the evidence on record and came to the conclusion that the plaintiff has established the title over the suit property. I do not find any substantial questions of law involved in this appeal. Therefore, the appeal is liable to be dismissed.
18. Accordingly, the appeal is dismissed. There shall be no order as to costs.
19. As a sequel, pending miscellaneous applications, if any, shall stand closed.
______________ M. LAXMAN, J DATE:12.09.2022 BDR