Bombay High Court
Shri Datta Keshav Chavan @ G.W/O I.Shwar ... vs Shri Narayan Babaji Chavan And Ors on 4 February, 2019
Author: Anuja Prabhudessai
Bench: Anuja Prabhudessai
Megha 2_sa_742_1992.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.742 OF 1992
Datta Keshav Chavan @ Ishwara Aba
Chavan since deceased through his
legal heirs and legal representatives,
1A. Mrs. Gangubai w/o. Ishwara
Chavan
1B. Mr. Bhakaji Ishwara Chavan
1C. Mr. Dhondiram Ishwara Chavan
1D. Mr. Maruti Ishwara Chavan
1E. Mr. Ganapati Ishwara Chavan
1F. Mr. Shripati Ishwara Chavan
1G. Mr. Krishna Ishwara Chavan
All residing at Mudshing, Taluka
Karvir, District:-Kolhapur.
1H. Mrs. Shobhatai Sardar Chougule
r/o. Vadgaon.
...Appellant
Versus
1. Narayan Babji Chavan
since deceased through his heirs and
legal representatives
1a. Mr. Pandurang Narayan Chavan
1b. Mr. Mahadeo Narayan Chavan
since deceased through his heirs and
legal representatives.
1(b)(1) Mrs. Parubai Mahadeo
Chavan
1(b)(2) Mrs. Sunandabai Dinkar
Patil
1(b)(3) Mrs. Sautai Dinkar Sawant
1(b)(4) Mrs. Rajjaka Mahadeo Borge
1(b)(5) Mrs. Nakushatai Narsu
Megha 1/11
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Megha 2_sa_742_1992.doc
Londhe
R/o. At Post Sangwade, Talukar-
Karvir, District-Kolhapur.
Respondent Nos.1(b)1 and 1(b)3
Residing at Ghanwanwadi Post-
Gadmudshingi, Taluka-Karvir,
District-Kolhapur.
1c. Mr. Bhausaheb Narayan Chavan
1d. Mr. Ravan Narayan Chavan
1e. Mrs. Akkatai Narayan Chavan
since deceased by her heirs
1f. Mrs. Akkatai Vasant Mane
2. Dagadu Rama Chavan since
deceased through his heirs and legal
representatives,
2a. Mrs. Bhagirathi Dagadu Chavan
2b Mr. Shamrao Dagadu Chavan
2c. Mrs. Tulsabai Anandrao Ingawale
2d. Mrs. Savitri Dadu Mohite
2e. Mrs. Rangubai Ramchandra
Gudale
2f. Bhimrao Dagadu Chavan
2g.Mrs. Malubai Vasant Patil
2h. Mrs. Shalan Bhikaji Patil
3. Tukaram Rama Chavan
since deceased through his heirs
3a Smt. Hirabai Tukaram Chavan
3b. Pandit Tukaram Chavan
3c. Smt. Bibitai Gopal Panutre
3d Sou. Banabai Yeshwant Khade
3e. Sou. Janabai Shankar Patil
3f. Sou. Rajakka Raju Chougule
4. Sakharam Rama Chavan since
deceased through his heirs and legal
representatives,
4a. Kerba Sakharam Chavan
4b. Sanjay Sakharam Chavan
4c. Smt. Laxmi Shankar Patil
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4d. Smt. Rekha Sarjerao Salunkhe
5. Mr. Akaram Rama Chavan since
deceased through heirs and legal
representatives
5A. Anjana Balasaheb Parlekar
5B. Anjana Akaram Chauhan
5C. Geeeta Rangrao Magdum
5D. Mrs. Anita Bhagwan Mane
5E Sou. Shobha Ganpati Patil
5F. Smt. Sunita Ananda Kandekar
6. Dinkar Rama Chavan since
deceased through his heirs and legal
representatives.
6A. Mrs. Nausa Dinkar Chavan
6B. Mrs. Ujwala Babu Wadkar
6C. Mrs. Yojna Chandrakant
Thorbole ...Respondents
.....
Mr. Surel S. Shah for the Appellant.
Mr. Sugandh Deshmukh with Mr. Tajani Mhatugade for the
Respondent Nos.1(a), 1b(i), 1(c) to 1(f), 2a to 2h, 3a to 3b and 4a to
4d.
CORAM : SMT. ANUJA PRABHUDESSAI, J.
DATED: 4th FEBRUARY, 2019.
JUDGMENT:-
This is an appeal filed under Section 100 of the Civil Procedure Code challenging the judgment and decree dated 7 th August, 1992 whereby the District Judge, Kolhapur, dismissed the Regular Civil Appeal No.78 of 1987 and thereby confirmed the order dated 30 th January, 1987 passed by the 3rd Joint Civil Judge, Junior Division, Megha 3/11 ::: Uploaded on - 18/02/2019 ::: Downloaded on - 15/03/2019 22:34:54 ::: Megha 2_sa_742_1992.doc Kolhapur in Regular Civil Suit No.190 of 1979.
2. Respondent Nos.1(a) to 1(f) were the Plaintiffs whereas the Appellants and predecessors of Respondent Nos.2 to 6 were Defendants in the suit (shall be hereinafter referred to as Plaintiffs and Defendants respectively).
3. The dispute between the parties is in respect of an agriculture land under Survey Nos. 291 sub Division 1 and 2, 292 sub division 5, 7, 9, 12 and 14 and Sub Division 294/2 and a house bearing Grampanchayat No. 1070-B situated at village Mudshingi, Taluka- Karveer, District-Kolhapur (shall be hereinafter referred to as 'suit property').
4. The suit property was originally owned by Ishwara Chavan, who had three sons viz. Babaji, Aba and Dadu. The Plaintiff-Datta Keshav Chavan is the son of Babaji. Gourabai, was the widow of Aba. Dadu had two sons Keshav and Ramu. The Defendant No.1 is the son of Keshav whereas the Defendant Nos.2 to 6 are the sons of Ramu.
5. Said Gourabai died on 27.8.1971. She had no class I heirs. Megha 4/11 ::: Uploaded on - 18/02/2019 ::: Downloaded on - 15/03/2019 22:34:54 :::
Megha 2_sa_742_1992.doc Gourabai had adopted the Defendant No.1 however, in the previous litigation between the parties (Second Appeal No.759 of 1972) the adoption of the Defendant No.1 has been held to be invalid. The Plaintiff therefore claims that the Defendant No.1 has no right to inherit the property of Gourabai. The Plaintiff further claims that being Class-II heirs, he is entitled to 2/3 share and the Defendant Nos.2 to 6 are entitled for 1/3rd share in the suit property. based on these pleadings the Plaintiff sought partition and possession of his 2/3rd share.
6. The Defendant No.1 claimed that Gaurabai had executed a gift deed on 5.6.1970 in his favour and that by virtue of the said gift deed he is the exclusive owner of the suit property. The Defendant No.1 further averred that he is in possession of the suit property since the lifetime of Gaurabai.
7. The learned Trial Judge held that the Defendant No.1 had not examined an attesting witness to prove the gift deed and hence the said gift deed could not be used as evidence. The trial court decreed the suit holding that the Plaintiff is entitled for 2/ 3 rd share in the property whereas the Defendant nos.2 to 6 are entitled for 1/ 3 rd share Megha 5/11 ::: Uploaded on - 18/02/2019 ::: Downloaded on - 15/03/2019 22:34:54 ::: Megha 2_sa_742_1992.doc and that they are entitled for separate possession of their respective shares.
8. Being aggrieved by the said order the Defendant No.1 filed an appeal before the District Court at Kolhapur. The Defendant No.1 had also filed an application under Order 41 Rule 27 of the CPC seeking leave to adduce evidence to prove execution of gift deed. The learned District Judge dismissed the appeal by the impugned judgment dated 7th August, 1992 without passing any order on the application under Order 41 Rule 27. Being aggrieved by the dismissal of the appeal the legal representatives of the Defendant No.1 have filed the second appeal.
9. The learned District Judge has held that though the gift deed executed in favour of the Defendant No.1 does not relate to the properties which were the subject matter of the previous suit No.90 of 1967, the same deals with the right of the Defendant No.1 in the joint property and hence the claim of the Defendant No.1 is barred by the principles of constructive res judicata. It is not in dispute that the property purportedly gifted to the defendant by gift deed dated 5th June, 1970 was not the subject matter of the previous suit. The legality Megha 6/11 ::: Uploaded on - 18/02/2019 ::: Downloaded on - 15/03/2019 22:34:54 ::: Megha 2_sa_742_1992.doc and validity of the said gift deed was also not an issue in the previous suit in order to attract the principles of res judicata or constructive res judicata. The learned counsel for the respective parties also concede that the parties had not raised the plea of res judicata or constructive res judicata before the first appellate court. In the light of above, the findings of the learned District Judge on the applicability of the principles of res judicata cannot be sustained.
10. Mr. Surel Shah the learned counsel for the Appellant submits that the learned Trial Judge has held that in the absence of evidence of the attesting witness, the gift deed cannot be read in evidence. The learned counsel for the Appellant submits that the attesting witnesses were not examined as the execution of the gift deed was not disputed. He submits that in view of the findings recorded by the Trial Court the Appellant had filed an application under Order 41 Rule 27 of the CPC seeking leave to adduce evidence of attesting witnesses. Mr. Shah submits that the learned District Judge has decided the appeal without passing any order on the said application.
11. The learned Trial Judge had held that the gift deed which is required by law to be attested was not proved by examining an Megha 7/11 ::: Uploaded on - 18/02/2019 ::: Downloaded on - 15/03/2019 22:34:54 ::: Megha 2_sa_742_1992.doc attesting witness and hence cannot be used as evidence. Whilst setting aside these findings, the learned District Judge has held that the Trial Court has misinterpreted the provisions of section 68 of the Indian Evidence Act. The learned District Judge has observed that the executant has not denied execution of the gift deed and that denial by the Plaintiff would not take the case out of purview of proviso to section 68 of the Indian Evidence Act. The learned Judge held that in view of proviso to section 68 of the Indian Evidence Act, the Appellant was not required to examine the attesting witness.
12. It would be advantageous to refer to the decision in the case of Rosammal Issetheenammal Fernandez (dead) by LRs vs Joosa Mariyan Fernandez, (2000) 7 SCC 189 wherein the Apex Court has held thus:-
"The main Part of Section 68 of the Indian Evidence Act puts an obligation on the party tendering any document that un- less at least one attesting witness has been called for proving such execution the same shall not be used in evidence. Section 68 of the Indian Evidence Act; 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 evi- dence 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 ca- pable of giving evidence;Megha 8/11 ::: Uploaded on - 18/02/2019 ::: Downloaded on - 15/03/2019 22:34:54 :::
Megha 2_sa_742_1992.doc Provided that it shall not be necessary to call at attesting witness in proof of the execution of any, document, not being a will, which has been registered in accordance with the pro- visions of the Indian Registration Act, XVI of 1908 unless its execution by the person by whom it purports to have been ex- ecuted is specifically denied.
Under the proviso to Section 68 the obligation to produce at least one attesting witness stands withdrawn if the execution of any such document, not being a will which is registered is not specifically denied. Therefore, everything hinges on the recording of this fact of such denial. If there is no specific de- nial, the proviso comes into play but if there is denial, the proviso will not apply."
13. In the instant case, the learned District Judge has not recorded a finding that the Plaintiff has admitted execution of the gift deed. The learned District Judge has held that it was not necessary to examine the attesting witness since the executant herself had not disputed execution of the document. As noted above, proviso to section 68 dispenses with the requirement of examining an attesting witness only when the execution of such document is not specifically denied. The words "specifically denied" would mean denial by the party against whom the document is sought to be used and not only by the executant. The learned District Judge has not recorded a finding that the Plaintiff, against whom the document was sought to be used, had admitted execution of the document. In the absence of such finding, the learned District Judge was not justified in dispensing with the Megha 9/11 ::: Uploaded on - 18/02/2019 ::: Downloaded on - 15/03/2019 22:34:54 ::: Megha 2_sa_742_1992.doc rigour of Section 68 on the premise that the executant, who was not a party to the proceedings, had not disputed the execution of the document.
14. Be that as it may, the records reveal that in the light of the findings recorded by the Trial Court, the Defendant No.1 had filed an application under Order 41 Rule 27 of the CPC, seeking permission to adduce additional evidence to prove execution of the gift deed. The learned District Judge had not passed any order on the said application. Suffice it to say that it was obligatory upon the Court to first decide on the application under Order 41 Rule 27 of the CPC before venturing into the merits of the case as the decision on such application would have direct bearing upon the outcome of the Appeal.
15. Considering the above facts and circumstances, the impugned judgment cannot be sustained. Hence, the Appeal is allowed. The impugned judgment and decree is set aside. Matter is remanded to the Additional District Judge, Kolhapur with directions to decide the application under Order 41 Rule 27 of the CPC after hearing the respective parties and keeping in mind the scope of application under Order 41 Rule 27 of the CPC. In the event, the application is Megha 10/11 ::: Uploaded on - 18/02/2019 ::: Downloaded on - 15/03/2019 22:34:54 ::: Megha 2_sa_742_1992.doc allowed, the learned District Court shall record additional evidence. The learned District Judge shall give an opportunity to the Plaintiffs to cross examine the witness and to adduce rebuttal evidence, if any. The First Appellate Court is directed to conclude this process and to decide the appeal on merits within a period of six months from the date of receipt of copy of this order.
16. All the points and contentions of the respective parties are kept expressly open. Record and proceedings be sent back. Interim relief, if any, to continue for a period of six months.
(SMT. ANUJA PRABHUDESSAI, J.) Megha 11/11 ::: Uploaded on - 18/02/2019 ::: Downloaded on - 15/03/2019 22:34:54 :::