Orissa High Court
Unknown vs Urbasi Dei & Others on 10 July, 2019
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
SA No.264 of 1981
From the judgment and decree dated 27.6.1981 and 6.7.1981
respectively passed by Sri K.M. Subudhi, learned District Judge,
Sundargarh in T.A No.3 of 1979 confirming the judgment and decree
dated 20.11.1978 and 27.11.1978 respectively passed by Sri S.S.
Panda, learned Subordinate Judge, Sundargarh in T.S. No.23 of
1976.
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Ganapati Patel (since dead) through
L.Rs. .... Appellants
Versus
Urbasi Dei & others ....
Respondents
For Appellants ... Mr. Gautam Mishra, Adv
For Respondents ... Ms. Sagarika Sahoo, Adv.
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 27.06.2019 : Date of judgment: 10.07.2019
Dr. A.K.Rath, J Defendant no.1 is the appellant against a confirming
judgment.
2. Plaintiffs-respondents 1 to 4 instituted the suit for
declaration of title in respect of Schedule-C land, recovery of
possession, declaration that gift deed dated 26.11.1959 is null and
void and Schedule-B land is the joint family property of the parties.
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3. One Jagannath Patel died leaving behind five sons,
namely, Ram Krishna, Ude, Ram Rai, Janardan and Shyamsundar.
Ram Rai died leaving behind his wife-Padmabati and daughter
Ghasiana-plaintiff no.4. Thereafter, Janardan, younger brother of
Ram Krishna, married to Padmabati, according to the prevailing
caste and custom of the society. Out of their wedlock, three
daughters, namely, plaintiffs 1 to 3 were born. Ghasiana, daughter of
Ramkrishna, was brought up in the house of Janardan. She was
treated like daughter of Janardan. Case of the plaintiffs was that
Janardan was separated from other two brothers in mess and
property. He was in possession of Schedule-A land exclusively
towards his share. In Mutation Case No.593 of 1950-51, his name
was mutated in respect of Schedule-A land. He was in joint
possession of Schedule-B land. Padmabati executed a deed of release
in favour of the plaintiffs. Plaintiffs are entitled to the property left by
Janardan. Subsequently they came to know that Ganapati-defendant
no.1 has got an unregistered gift deed purported to have been signed
by Janardan in respect of Schedule-C land. In the settlement
operation, when he tried to record the land in his name, plaintiffs
objected to the same. The Assistant Settlement Officer recorded
Schedule-A land in favour of the plaintiffs, but recorded the note of
possession that Schedule-C land is a part of Schedule-A land. With
this factual scenario, they instituted the suit seeking the reliefs
mentioned supra.
4. Defendants 1 and 2 filed a written statement pleading,
inter alia, that Janardan was separated from the joint family. He got
his share separated by amicable arrangements. He had no title over
Schedule-B land. Janardan had gifted some land to the plaintiffs. He
was in possession the land. Rest land remained with him. Defendant
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no.1 was cultivating a portion of the land. Janardan executed a Will,
Ext.F, in respect of Schedule-C land in favour of defendant no.1 in
presence of the witnesses on 26.10.1959. After his death, defendant
no.1 is in possession of Schedule-C land.
5. On the inter se pleadings of the parties, learned trial court
struck ten issues. Both the parties led evidence, oral and documentary.
Learned trial court decreed the suit holding that there was no evidence
on record that Janardan executed Ext.F. Attesting witnesses are alive.
But then, they have not been examined. Janardan had not executed
Ext.F with free will. There was no proof that he had sound and
disposing mind at the time of execution of Ext.F. Plaintiffs are illiterate
women. Ext.F was not read over and explained to them. The stamp
paper of Ext.F was purchased in the year 1952. Ext.F has not been
probated. Defendant no.1 trespassed into Schedule-A and B land in the
year 1975. There was no evidence that defendant no.1 was in
possession of Schedule-C land. Schedule-B land is the joint family
property of the plaintiffs and defendants 1 and 2. Unsuccessful
plaintiffs filed Title Appeal No.3 of 1979 before the learned District
Judge, Sundargarh, which was eventually dismissed. It is apt to state
here that during pendency of the appeal, appellant no.1 and
respondent nos.3 and 4 died; whereafter their legal heirs have been
substituted.
6. The second appeal was admitted on the substantial
questions of law enumerated in ground nos.1, 2 and 4. The same are -
"1. For that in the absence of any evidence to show that C
schedule property had fallen to the share of Janardan, it
should have been held that the plaintiffs had failed to
establish their title and as such, the suit should have been
dismissed.
2. For that due execution of the document Ext.F having not
been denied, the court below has committed an illegality in
holding that the defendants were required to prove due
attestation of the document. It is submitted that in view of
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Sec.68 of the Indian Evidence Act it was not necessary to
prove attestation.
4. For that even assuming though not conceding that
attestation was required to be proved, in view of the
evidence of D.W.1 and D.W.7 which clearly shows that the
executant had executed Ext.F in presence of the witnesses
and the witnesses had signed the document in presence of
the executant, it should have been held that due
attestation of the document has been proved.
7. Heard Mr. Gautam Mishra on behalf of Mr. A.K. Nanda,
learned counsel for the appellants and Ms. Sagarika Sahoo on behalf of
Mr. Ashok Mukharji, learned Senior Advocate for the respondents.
8. Mr. Mishra, learned counsel for the appellants submitted
that Ext.F was marked without objection. A petition under Order 18
Rule 4 CPC was filed for summoning the attesting witnesses and the
same was rejected by order dated 20.11.1978. Ext.F is a Will. The same
does not require probate. Learned court below committed patent
illegality in holding that in absence of probate of Ext.F, the same was
not acceptable in law. In the facts and circumstances of the present
case, the court below ought to have accepted Ext.F to be a Will. He
further submitted that an application was filed for summoning the
attesting witness before the learned appellate court. But then, the same
was hastily rejected. The approach of the learned appellate court has
resulted in gross miscarriage of justice. He further submitted that the
finding of the court below that the probate is required is contrary to the
decision laid down by this Court. Learned court below ought to have
accepted Ext.F to be the Will and proceeded to decide the matter on
merit. To buttress the submission, he placed reliance on the decisions
of this Court in the case of Sarat Chandra Mohanty v. Chandramani
Bewa, 37 CLT 1972 445 and Amruta Pasayat and another v. Tama
Pasayat, 2018 (I) CLR 196.
9. Per contra, Ms. Sahoo learned counsel for respondents 1 to
4 submitted that both the courts concurrently held that execution of
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Ext.F had not been proved. Defendant no.1 had failed to prove that
Janardan had sound and disposing mind at the time of execution of
Ext.F. Defendant no.2 had not preferred any appeal. Thus defendant
no.2 has no claim over Schedule-C land. Learned trial court rendered a
finding that Schedule-B land is the joint property of plaintiffs.
Defendants 1 and 2 had not challenged the same in the appeal. The
same has become final and conclusive. She further submitted that
evidence from both the sides was closed on 7.11.1978. Argument was
heard on 17.11.1978. On 18.11.1978, defendant no.1 filed a petition
under Order 18 Rule 17-A CPC to examine the attesting witnesses. The
trial court is justified in rejecting the application. The application was
filed at a belated stage. Learned court below has rightly rejected the
petition for additional evidence. No case was made out for adducing
additional evidence. Ext.F was not proved. Ext.F is not a Will. Her
alternative submission is that even if Ext.F is construed to be a Will,
defendant no.1 cannot derive any title on the strength of the same
without probate. Ext.F is a conditional gift. The gift deed requires
registration. The admitted case is that Schedule-C land belongs to
Janardan. Finding of the learned trial court that in Schedule-C land,
defendant no.2 has no claim is final since defendant no.2 has not filed
appeal before the learned District Judge.
10. Ext.F has been scribed in an unstamped paper. On a
conspectus of Ext.F, it is evident that Janardan Patel had executed
the "Antima Dutta Patra". "Dutta Patra" means 'gift'. The recitals of
Ext.F would clearly indicate that the same is a conditional gift deed.
11. 'Gift' has been defined Under Sec.122 of the Transfer of
Property Act ("T.P Act"). Sec. 123 of the T.P Act provides transfer how
effected. Sec.123 of the T.P Act, which is relevant, is quoted hereunder:
"123. Transfer how effected : For the purpose of making a gift of
immovable property, the transfer must be effected by a registered
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instrument singed by or on behalf of the donor, and attested by at least
two witnesses.
For the purpose of making a gift of movable property, the transfer may be
effected either by a registered instrument signed as aforesaid or by
delivery.
Such delivery may be made in the same way as goods sold may be
delivered."
12. On a bare reading of Sec.123 of the T.P Act, it is evident
that the transfer must be effected by a registered instrument singed
by or on behalf of the donor, and attested by at least two witnesses.
Ext.F is an unregistered document. Even if attesting witnesses had
been examined, the same would have no effect. Thus reliance placed
on Ext.F is totally misplaced. The substantial questions of law are
answered accordingly.
13. The decisions cited by the learned counsel for the
appellants are distinguishable on facts. In Sarat Chandra Mohanty,
this Court held that proviso to Sec.68 of the Evidence Act indicates that
in the absence of specific denial, it would not be necessary to call an
attesting witness in proof of execution of the document. There is no
quarrel over the proposition of law.
14. In Amruta Pasayat, this Court held that the bar
contained in part VIII making the provision to obtain a probate of the
will as the condition precedent to claim the right as a legatee under
the Will has no applicability for the natives of Sundargarh. But in
the instant case, Ext.F is an unstamped gift deed.
15. In the wake of the aforesaid, the appeal, sans merit,
deserves dismissal. Accordingly, the same is dismissed. No costs.
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DR. A.K.RATH, J.
Orissa High Court, Cuttack. Dated 10th July, 2019/PKS. 7