Madras High Court
M.E.Mohamed Haneefa vs Sheik Abdul Khader on 29 October, 2011
Author: V.Periyakaruppiah
Bench: V.Periyakaruppiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/10/2011 CORAM THE HONOURABLE MR. JUSTICE V.PERIYAKARUPPIAH SECOND APPEAL No.1749 of 1997 M.E.Mohamed Haneefa ... Appellant Vs Sheik Abdul Khader ... Respondent Prayer Second Appeal under Section 100 of C.P.C., against the Judgment and Decree dated 06.03.1997 made in A.S.No.74/92 on the file of the Subordinate Judge, Karur reversing the Judgment and Decree dated 20.03.1992 made in O.S.No.1106 of 1981 on the file of the Principal District Munsif, Karur. !For Appellant ... Mr.C.Ananth Chandrasekar ^For Respondent ... No appearance :JUDGMENT
The appellant herein is the aggrieved defendant, who succeded before the trial Court on the dismissal of the suit. But, in the appeal preferred by the plaintiff before the 1st appellate Court, the judgment and decree passed by the trial Court were set aside and the appeal was allowed and consequently the suit was decreed against the defendant.
2.The facts of the case, in brief, as put forth by the plaintiff before the Courts below, are as follows:
The suit property was originally belonged to the father of the plaintiff and the defendant, by virtue of a purchase through a sale deed dated, 30.06.1928 and the father was in possession and enjoyment of the said property from the said date. The plaintiff was the son born to the father through his 3rd wife viz., Jainubi Ammal. The defendant was born to the father through his 1st wife. The defendant left the father and was living separately. The plaintiff, his father, mother and sisters were living jointly. During the said time, the father had executed a registered settlement deed in respect of the suit property in favour of the plaintiff, on 11.05.1988, in consideration of the love and affection had over him. The said registered settlement deed was promptly executed, attested and registered in accordance with law. The possession of the suit property was handed over to the plaintiff on the said date. The revenue records were also updated in the name of the plaintiff and the plaintiff was in possession and enjoyment of the suit property. The plaintiff was regularly paying the property tax to the house property. The father, subsequently, died and the plaintiff and his mother are living in the suit property. The defendant had no iota of right, interest or title to the suit property. However, he is disturbing the plaintiff by raising dispute in the enjoyment of the suit property. Therefore, the suit was filed by the plaintiff, for declaration that the suit property is belonging to the plaintiff and consequently for a permanent injunction against the defendant restraining from in any way disturbing his possession and enjoyment of the suit property and for costs.
3.The case of the defendant, before the Courts below, would be thus:
The relationship, as pleaded by the plaintiff in between the parties, is absolutely correct. The plaintiff was not correct to say that the defendant did not look after the father. The plaintiff, his father and sisters were not living with the father. The father was living separately. All sons were helping the father. The case of the plaintiff that the father had executed a settlement deed in respect of the suit property in favour of the plaintiff is not correct and it is denied as false. The execution, genuineness and the validity of the said documents are denied by the defendant. During April and May 1978, the father was not in a sound and disposing state of mind and he was not able to pursue the things happened around him. The case of the plaintiff that the father had executed a settlement deed in favour of the plaintiff in consideration of love and affection had over him, is totally denied. Moreover, the plaintiff was in possession and enjoyment of the suit property from the said date. The tax registry was transferred in the name of the plaintiff and was not made known to the defendant since it was the clandestine act of the plaintiff. The averment of the plaintiff that the defendant had no right in the suit property is not correct. After the death of the father, the legal representatives of the father are entitled to their respective share in the suit property. The plaintiff ought to have filed the suit for partition since the defendant is also deemed in possession and enjoyment of the suit property. Therefore, the defendant has prayed for the dismissal of the suit.
4.The trial Court had framed necessary issues on the basis of the pleadings put forth by the parties and had come to the conclusion that the plaintiff did not prove the execution of the registered settlement deed and therefore dismissed the suit.
5.Aggrieved by such decision, the plaintiff raised appeal grounds before the 1st appellate Court and also filed an application to examine one of the attestors of the settlement deed before the appellate Court and the 1st appellate Court, after hearing both parties, had come to the conclusion that the settlement deed need not be proved in accordance with law since the parties to the settlement deed are Muslims and the Mohammedan Law is applicable to them and under the provisions of Mohammedan law, the gift deed has been proved and thus, the suit was decreed in favour of the plaintiff to the detriment of the defendant.
6.The appellant herein/defendant preferred this appeal against the Judgment and Decree of the 1st appellate Court and had raised so many grounds, which includes the following questions of law. Accordingly, this Court had also framed the following questions of law:
"1.Whether the lower appellate Court is right in law in holding that the execution of Ex.A.2 settlement deed is proved without even examining any one of the attesting witnesses under section 68 of the Evidence Act?
2.Whether the lower appellate Court is right in law in assuming that the comparison of Thumb impression and finding as to the genuineness of the thumb impression of the settlor is sufficient to prove the execution of the settlement deed particularly when the settlor is a literate and used to sign and when no attestors were examined to prove the document in question?
7. Heard Mr.C.Anand Chandrasekar, learned counsel appearing for the appellant and no appearance for the respondent, despite his name is printed in the cause list.
8.The learned counsel appearing for the appellant would submit in his argument that the plaintiff was relying upon, for his title, a registered settlement deed produced in Ex.A2, which was not proved by the plaintiff in accordance with law and the said settlement deed was not accepted by the trial Court, however, the 1st appellate Court had come to a conclusion that the provisions of Section 68 of Indian Evidence Act is not applicable to the Muslims since they are covered by the provisions of gift under Mohammedan law. He would further submit that the 1st appellate Court has not considered that no pleading has been put forth by the plaintiff either for an oral gift (Hiba) or for the compliance of the requisites of a gift as contemplated under Mohammedan law. But, he pleaded only a registered gift deed, as per the provisions of Section 125, which is a compulsorily attestable document.
9.He would also submit in his argument that the plaintiff did not examine any one of the attestors even though they are alive and available and therefore failed in his attempt to prove his case. He would also submit that the plaintiff, having understood that one of the attestors should be examined for proving the registered settlement deed, he had applied for the examination of one of the attestors at the appeal stage under Order 41 Rule 2 7 C.P.C., but, it was not ordered by the lower appellate Court. He would further submit that the lower appellate Court did not look into the fact that the executor/donor(father) was in a sound and stable mind to dispose of the property in favour of the plaintiff, which is essential to gift away any property. No such evidence has been adduced before the trial Court to prove the sound and disposing state of mind of the father at the time of execution of the document, Ex.A2.
10.He would further submit that the examination of attestors are very much required for the proof of due execution of settlement deed, Ex.A2, when certain suspicious circumstances that the father, who had signed in all the admitted mortgage deeds, did not sign in the settlement deed, but had put his thumb impression before the Registrar and had neither signed nor put his thumb impression in the settlement deed at the time of alleged execution. The said circumstances ought to have been cleared by adducing evidence of the examination of attestor only. He would also submit that the lower appellate Court had instead of rendering a finding that the settlement deed was not proved by non examination of any of the attestor, but had compared the thumb impression put by the executor before the Registrar in Ex.A2 with the admitted thumb impressions put in the mortgage deeds produced as documents Ex.A3 to A6.
11.The 1st appellate Court had miserably gone wrong in accepting the evidence of finger print expert examined as P.W.2 towards the execution of the settlement deed, which is not adequate for proving the execution of the registered settlement deed under the provisions of Section 68 of the Indian Evidence Act. He would also submit in his argument that the plaintiff ,having pleaded acquisition of title only under the registered settlement deed, cannot travel out side of the pleadings and asked for relief under the cover of an oral gift (Hiba). Even otherwise the declaration of gift in front of two relatives by one Mohammedan to another Mohammedan must be proved. However, no witness was examined to that effect in support of the finding given by the 1st appellate Court.
12.He would also rely upon a judgment of the Honourable Apex Court reported in A.I.R.1957 SC 133 between Deoki Kandan V. Muralidhar and others, in support of his argument. He would also submit that the refusal for permitting the plaintiff to examine the attestor under Order 41 Rule 27 C.P.C., was not agitated by the respondent and therefore, the requirement that the plaintiff ought to have attempted to examine any of the attestors as per provisions of Section 68 of the Indian Evidence Act.
13.He would further submit that the trial Court has categorically found that the plaintiff did not attempt to examine the attestors before the said Court and he falsely stated that the attestors were not available for examination, as the endorsement of the serving officer against the attestors would reveal that the notices were served by pasting at the residence of the attestors.
14.He would further submit that the 1st appellate Court had grossly erred in accepting the case of the plaintiff regarding the settlement deed, despite the provisions of Section 68 of the Indian Evidence Act, were not complied with by the plaintiff. The reliance placed by the lower appellate Court that the plaintiff had proved the gift in accordance with Mohammedans law is certainly against the settled principle of law that the plaintiff cannot travel out side the scope of his pleadings. He would therefore request the Court that the judgment and decree passed by the 1st appellate Court may be set aside and the judgment and decree of the trial Court be restored and thus, the appeal may be allowed.
15.No appearance on behalf of the respondent.
16.I have perused the records of the lower Courts and the decrees and judgments passed by the Courts below. I have also given anxious consideration to the arguments of the learned counsel appearing for the appellant.
17.Indisputably, the plaintiff and the defendant are the step brothers born to father viz., Mohammed Yousuf Rawther. The plaintiff was born to the 3rd wife viz., Jainubi Ammal and the defendant was born to the 1st wife of the father. The property was purchased by the father out of his own funds in the year 1928 and it was belonged to him.
18.The plaintiff's case was that the defendant left the father and was living separately and the father, the mother of the plaintiff and sisters were living along with the plaintiff and were enjoying the property. It is the further case of the plaintiff that the father, out of his love and affection over the plaintiff, had executed a registered settlement deed on 11.12.1978 and thereby handed over the possession to the plaintiff and the plaintiff was in possession and enjoyment of the property. No doubt, the plaintiff has claimed an exclusive right over the suit property by virtue of the registered settlement deed. However, the defendant had denied the execution, attestation, truth and validity of the said document in his written statement.
19.The trial Court found that the evidence produced by the plaintiff before it were not sufficient to prove the registered settlement deed pleaded by the plaintiff. It found that the thumb impressions put by the father in the registered settlement deed during registration and the admitted mortgage deeds in Exs.A3 to A6 were similar and the similarity will not help the plaintiff to prove the settlement deed since there were no signatures in the settlement deed dehorse the mortgage deeds are found executed with the signatures of the father. Moreover, the trial Court found that the execution was not proved in accordance with Section 68 of the Indian Evidence Act, by examining atleast one of the attesting witnesses to the said settlement deed, Ex.A2, since the execution, attestation and validity of the document have been denied by the defendant.
20.The 1st appellate Court had come to a different conclusion that it is not necessary to follow the strict principles of Section 68 of the Indian Evidence Act as the parties, viz., the plaintiff and his father are Mohammedans and according to Mohammedan law, as contemplated in the 'Principles of Mohammedans law" written by Mulla, 10th Edition in Section 149, the requirements of three essentials of a gift were proved by evidence and therefore, the suit is liable to be decreed. The 1st appellate Court had also relied upon the judgment of Andhra Pradesh High Court reported in AIR 1984 AP 344, AIR 1981 Kerala 176 and the judgment of Hon'ble Apex Court reported in AIR 1964 SC 275, to reach such a finding.
21.However, the learned counsel appearing for the appellant/defendant would vehemently argue that the 1st appellate Court had failed to follow the principles laid down by the Hon'ble Apex Court in A.I.R.1957 SC 133 between Deoki Kandan V. Muralidhar and others, for the principle that the plaintiff is barred from adducing evidence nor relying upon a case different from his case pleaded in the plaint. The relevant passage in the said judgment, is laid down as follows:
"It should be observed in this connection that though the plaintiff expressly pleaded that the temple was dedicated "for the worship of the general public'. The first defendant in his written statement merely pleaded that the Thakurdwara and the idols were private. He did not aver that the temple was founded for the benefit of the members of the family. At the trial, while the witnesses for the plaintiff deposed that the temple was built with the object of providing a place of worship for all the Hindus, the witnesses examined by the defendants merely deposed that Sheo Ghulam built the Thakurdwara for his own use and "for his puja only". The temple must be taken to have been dedicated to the members of the family goes beyond the pleading, and is not supported by the evidence in the case.
In yet another judgment of the Hon'ble Apex Court reported in (1975) 1 SCC 212, Harihar Prasad Singh and others Vs. Balmiki Prasad Singh and others, it has also been reiterated the said principle that evidence cannot be adduced beyond the scope of the pleadings. Similar view has been emphasised in the recent judgment of the Hon'ble Apex Cort reported in (2011)3 SCC 436 between State of Orissa V. Mamata Mohanty, in which, it has been laid down as follows:
"Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that "as a rule relief not founded on the pleadings should not be granted". Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ."
As regards the facts of the present case, the plaintiff did not plead that he is entitled to the property by virtue of an oral gift, to which Section 149, in "Principles of Mohammedan law" written by Mulla, 10th Edition is applicable. Even otherwise, the requirements of the three elements under the said Section were not proved by the plaintiff, by examining the relatives, who were present at the time of the declaration of gift in favour of the plaintiff.
22.On the other hand, the 1st appellate Court had come to the conclusion that the settlement deed being a registered document is known to every one constructive on notice and therefore, the versions of the settlement deed are true. It has also relied upon the version that the plaintiff was given with gift and he had accepted it and in pursuance thereof, the possession was handed over to him and he was found in the possession of the property. In order to find the facts or versions found in the settlement deed, it is very much essential to prove the said document as known to law. Section 68 of the Indian Evidence Act runs thus:-
"68.Proof of execution of document required by law to be attested.- If a document is required by law to be attested, if shall not be used as evidence until one attesting witness at least has been called for the purpose of provind 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 its specifically denied.]"
According to the provisions, whenever is document required to have compulsorily attested and is sought to be produced in evidence and the said document, not being a Will, has been denied by the other side atleast one of the attestors should have been called for to prove the attestation. Admittedly, no attestor has been examined before the trial Court. The plaintiff also sought for examination of an attestor as additional evidence before the 1st appellate Court, which was also not ordered by the said Court. The trial Court had categorically found that the plaintiff did not take steps to call for atleast one of the attesting witnesses before the trial Court to prove the attestation. Even the scribe, who was present before the Trial Court and was ready to give evidence was not examined by the plaintiff since he would not depose in his favour. If the scribe was examined by the plaintiff before the trial Court, the plaintiffs could have proved the signatures of attestors so as to comply with the subsequent provisions of Section 68 of Indian Evidence Act. The facts could have been brought before the Court. But, the plaintiff did not examine the scribe for the aforesaid reasons.
23.No doubt, the plaintiff had come forward with an application to compare the thumb impression of the father in the settlement deed, Ex.A2 with that of the admitted thumb impressions in the mortgage deeds, Exs.A3 to A6 and the finger print expert was also examined as P.W.2. In his evidence, he deposed that the thumb impression found in Ex.A2, settlement deed is the same found in Exs.A3 to A6, the admitted mortgage deeds. It is also found by the trial Court that in the admitted documents, Exs.A3 to A6, the father had put his signatures and thumb impressions were obtained before the Sub Registrar along with his signatures. Whereas, the father had put his thumb impression only before the Sub Registrar and he neither signed nor put his thumb impression during execution of Ex.A2 and no explanation has been offered by the plaintiff, when especially, the defendant had questioned the sound and disposing state of mind of the father, at the time of execution.
24.In the backdrop of the evidence and the case of the parties, the similarity of the thumb impression put by the father cannot help the plaintiff to prove the execution of a compulsory attestable document namely Ex.A2, settlement deed as contemplated under Section 68 of the Indian Evidence Act. When once the plaintiff had not complied with the provisions of Section 68 of the Indian Evidence Act, the proof of execution through the examination of attestor to prove the attestation, sound and disposing state of mind of the executant, it cannot be inferred from the versions of the document merely it was a registered one. Therefore, the reliance placed by the 1st appellate Court that the declaration of gift by the donor, acceptance of the gift by the plaintiff and a consequent possession of the suit property by the plaintiff on the basis of the unproved settlement deed Ex.A3, is clearly a deviation of law.
25.There is no second thought that under Mohammedan law one can create an oral gift (Hiba), for which three elements are necessary as per the provisions of Section 149 of "Principles of Mohammedan law" by Mulla, 10th Edition. The said case of oral gift must be pleaded and proved through cogent evidence by the plaintiff.
26.Per contra, the plaintiff had pleaded only the registered settlement deed through which he claimed to have got the property from the father and was having title over the same. The said plea cannot be abandoned by the plaintiff and he should not be permitted to switch over to another plea of oral gift. Therefore, the lower appellate Court grossly erred in coming to the conclusion that the three principles of oral gift were proved through the versions of the registered settlement deed and since the plaintiff was in possession, he must be given with the title to the said property. The defendant is one of the legal heirs of the father, but for the settlement deed and therefore, the plaintiff should have been directed by the 1st appellate Court to prove his title, strictly in accordance with the pleadings of his case.
27.The lower appellate Court, having failed to follow the principles of law, had relied upon the judgment of High Court of Andhra Pradesh, Kerala and also the Hon'ble Apex Court for the principles, wherein those judgments, the registered settlement deed was found proved in accordance with Section 68 of the Indian Evidence Act. The reliance of those judgments were also not helpful to the plaintiff, in view of the failure on the part of the 1st appellate Court, to follow the principle that the plaintiff cannot travel outside the scope of his pleadings and no evidence was adduced by the plaintiff to substantiate the pleas raised by him in the plaint. The non compliance of the provisions of Section 68 of the Indian Evidence Act would render the reversal judgment and decree passed by it, liable to be set aside.
28.The trial Court had rightly come to the conclusion that the similarity of thumb impression would not render the execution of settlement deed be proved under Section 68 of the Indian Evidence Act. It is also not in dispute that the respondent/plaintiff did not prefer any appeal or cross appeal against the finding reached in his application to receive the additional evidence filed before the 1st appellate Court.
29.Therefore, I am of the considered opinion that the judgment and decree passed by the trial Court have to be restored by setting aside the judgment and decree passed by the 1st appellate Court and consequently to dismiss the suit before the trial Court.
30.For the foregoing discussions, I am of the considered view that the appeal is liable to allowed and accordingly, the same is allowed and thereby, the judgment and decree passed by the 1st appellate Court are set aside and the judgment and decree passed by the trial Court in dismissing the suit are restored. No order as to costs.
Arul To
1.The Subordinate Judge, Karur.
2.The Principal District Munsif, Karur.