Bombay High Court
Ajay Tulsidas Mote vs Sushilabai Satwajirao Jagtap on 19 June, 2019
Author: V.L. Achliya
Bench: V.L. Achliya
SA 871/18 with CA 13569/18
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.871/2018
WITH CIVIL APPLICATION NO.13569/2018
Ajay s/o Tulsidas Mote. ...Appellant / Applicant
VERSUS
Sushilabai w/o Satwajirao Jagtap. ...Respondent..
.....
Shri R.N. Dhorde, Senior Counsel i/b Shri V.R. Dhorde,
for the appellant / applicant.
Shiri V.D. Sapkal, Advocate for respondent.
.....
CORAM: V.L. ACHLIYA, J.
DATE: 19.06.2019
PER COURT :
1] Being aggrieved by the judgment and decree dated
30.11.2007 passed in Special Civil Suit No.233/2006 by
learned Civil Judge, Senior Division, Aurangabad, and
confirmed in appeal preferred before the District Judge,
Aurangabad, vide Regular Civil Appeal No.24/2016 decided
on 24.9.2018, the appellant - original defendant, has
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preferred this second appeal.
2] Heard learned Senior Counsel for the appellant -
defendant and the learned counsel for the respondent -
original plaintiff. Perused the record and proceedings.
3] The respondent - plaintiff had filed Special
Civil Suit No.233/2006 seeking following relief:-
"The suit of the plaintiff may be decreed with
costs. Plaintiff may be declared owner of the
suit property. The Gift Deed dated 14.07.2004
may be declared as void, being without free
consent and being actuated by fraud and
deception and the same may be ordered to be
delivered up and cancelled."
4] The plaintiff had filed suit claiming above
quoted relief with contention that the registered gift-
deed dated 14.7.2004 was got executed by practising fraud
upon her, under the pretext of signing the General of
Power Attorney in favour of the defendant. The defendant
resisted the suit claim by denying the case as put forth
by the plaintiff. It is specifically pleaded that the
gift-deed executed in his favour was voluntary. The
plaintiff got prepared two gift-deeds, one in favour of
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the defendant and another in favour of Dhananjay, son of
her sister. Both the gift-deeds were prepared by Shri
Arora, a family Advocate of the plaintiff as per her
instructions. Before execution and registration of gift-
deeds, the drafts of both the gift-deeds prepared by
Advocate Shri Arora were seen and approved by the
plaintiff. The stamp duty and the registration charges
to the tune of more than rupees five lakhs were paid by
the plaintiff by drawing demand drafts from her account.
The plaintiff personally appeared in the office of
Registrar of Registration alongwith attesting witness
Anandgiri Maharaj, who is son of her sister. After fully
knowing the contents of the gift-deeds voluntarily
executed two gift-deeds before two different Sub-
Registrars of Registration.
5] The trial Court has framed the issues and
recorded the findings as under :-
Sr.No. Issues Findings
1] Does plaintiff prove that the
defendant got executed Gift
Deed bearing 2797 dated In affirmative
14.7.2004 by playing fraud and
deception and
misrepresentation ?
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2] Does plaintiff prove her
In affirmative.
ownership over the suit
property ?
3] Whether the plaintiff is
In affirmative.
entitled for the declaration
as prayed ?
4] What order ? Suit decreed with
costs.
In order to prove her case, the plaintiff has
examined herself and further examined Anand Ramkrishna
Avhad @ Anandgiri Maharaj (PW2), the attesting witness to
the gift-deed (Exhibit 24). The defendant has examined
himself in support of his case. The trial Court has
decreed the suit by holding that the plaintiff has proved
that the defendant has got executed the deed in question
by playing fraud, deception and misrepresentation. It is
further held that the plaintiff proved her ownership over
the suit property and entitled for the declaration and
injunction. The decision of the trial Court appears to
be mainly based upon the view formed by the trial Court
that in spite of execution of gift deed in favour of the
defendant, the possession of the property remained with
the plaintiff and in absence of possession being
delivered, no valid gift of the suit property has taken
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place.
6] In an appeal preferred against the judgment and
decree passed by the trial Court, the appellate Court has
framed the points for determination and recorded the
findings as under:-
Sr.No. Points Findings
1] Does plaintiff (respondent)
prove that defendant got
In the negative.
executed alleged gift deed by
playing fraud and
misrepresentation ?
2] Does defendant (appellant)
prove that gift deed dated
14.7.2004 executed by In the negative.
plaintiff in his favour is
legal and valid in the eyes of
law ?
3] Does defendant (appellant)
entitle to produce additional
evidence under Order XLI Rule In the negative.
27 of C.P.C. and to remand the
matter ?
4] What order and decree ? As per final
order.
Though the appellate Court has recorded the
finding to point no.1 in the negative and thereby
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disagreed with the finding recorded to issue no.1 by the
trial Court, the appellate Court has dismissed the appeal
and confirmed the decree passed by the trial Court by
holding that the gift-deed dated 14.7.2004 executed by
the plaintiff in favour of the defendant is not legal and
valid. The decision of the appellate Court dismissing
the suit appears to be mainly based upon its conclusion
that the defendant has failed to prove the execution of
gift-deed as contemplated u/s 68 of the Indian Evidence
Act.
7] Shri R.N. Dhorde, learned Senior Counsel
appearing on behalf of the appellant assailed the reasons
and findings recorded by the Courts below with contention
that the judgments and orders passed by the Courts below
are per-se perverse and not sustainable in law. It is
submitted that the trial Court has framed the issues and
cast entire burden upon the plaintiff to prove her case.
No issue was framed to cast any burden upon the
defendant. So also no specific issue was framed casting
the burden upon the defendant to prove the execution of
gift-deed as contemplated u/s 68 of the Indian Evidence
Act. It is submitted that in absence of any issue being
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framed and burden being cast upon the appellant-
defendant, the Courts below erred in passing the impugned
judgments. By referring the decision of this Court in
the case of Ajit Gaitonde & another v. Smt.Ezilda
Emiliana Cristina Pinto (2009 (3) ALL MR 838), the
learned Senior Counsel submits that this Court has held
that non-framing of an issue is a defect in the trial and
adversely affects the rights of the parties to the suit.
It is further pointed out that the decision rendered by
the Courts below holding that delivery of possession of
gifted property is a condition precedent to hold the
gift-deed as valid, is per-se contrary to Section 123 of
the Transfer of Property Act as well as the legal
position set at rest by the three Judges Bench decision
of the Apex Court in the case of Renikuntla Rajamma v. K.
Sarwanamma (2014) 9 SCC 445). By referring the decision
in said case, the learned Senior Counsel submits that in
a reference made on account of conflict of two earlier
decisions of the Apex Court on the issue, the Apex Court
has decided the reference and held that delivery of
possession to donee is not an essential condition of the
gift. The condition recorded in gift-deed to receive
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rents of the property by donor during the life time does
not make the gift invalid. By placing reliance upon the
said decision, the learned Senior Counsel submits that
the decisions rendered by the Courts below are contrary
to the law settled by the Apex Court in the said case.
8] It is further submitted that the Courts below
erred in holding that the defendant was under obligation
to prove the execution of gift-deed by examining the
attesting witness. In this context, the learned Senior
Counsel submits that execution of gift-deed (Exhibit 24)
was never disputed by the plaintiff. She has herself
tendered the gift-deed (Exhibit 24) in evidence and also
examined the attesting witness. It is further
submitted that the admission of gift-deed (Exhibit 24) in
evidence was not objected from either side. On the
contrary, the gift-deed was admitted and read in evidence
while deciding the case by the trial Court as well as the
appellate Court. It is further submitted that the
requirement of examination of attesting witness arose
only in the event the document is not registered and/or
execution of the document has been denied by the
executant. Since the document in question being
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registered document and execution of the document being
not in dispute, the reasons and findings recorded by the
Courts below are perverse and unsustainable in law. It
is further submitted that the Courts below also erred in
refusing to entertain the application moved for adducing
additional evidence. In support of the submissions
advanced, the learned Senior Counsel has referred and
relied upon following rulings :-
1] Uttaradi Mutt v. Raghavendra Swamy Mutt
(2018) 10 SCC 484
2] Y.P. Sudhanva Reddy & others v. Chairman and
Managing Director, Karnataka Milk Federation &
others (2018) 6 SCC 574
3] Bachahan Devi & another v. Nagar Nigam,
Gorakhpur & another (2008) 12 SCC 372
4] North Eastern Railway Administration,
Gorakhpur v. Bhagwan Das (2008) 8 SCC 511
5] Ramesh Radkabhai Vartha v. Babubhai
Mahadubhai Raut (2015 (4) ALL MR 860)
6] Jairam P. Kamat v. State Bank of India &
others (1997 (3) ALL MR 339)
9] Learned Senior Counsel for the appellant submits
that the appeal raises following substantial questions of
law:-
1] Whether the appellate Court committed error
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by confirming the decree passed by the trial
Court when the fraud alleged by plaintiff in
execution of gift deed is held to be not proved
and the suit ought to have been dismissed on
failure of plaintiff to prove fraud in
execution of gift deed Exhibit 24 ?
2] Whether the appellate Court has ignored the
important judgments of the Apex Court cited
before it which is reported in 2014 (9) SCC 445
wherein it has been held that the donor can
retain the possession during the lifetime and
donate the property to the donee ?
3] Whether both the Courts below misread and
misconstrued the registered gift deed Exhibit
24 wherein it has been specifically stated that
possession has been handed over to the donee ?
4] Whether both the Courts have ignored the
provisions of Section 68 of the Evidence Act
read with Sections 122 and 123 of the Transfer
of Property Act and thereby arrived at
erroneous conclusion by holding that gift deed
is not legal and valid ?
5] Whether the appellate Court has erroneously
dismissed the appeal by rejecting the
application Exhibits 14 and 40 seeking leave to
lead additional evidence without any reasons ?
6] Whether the trial Court has grossly erred by
not framing issue as to whether the gift deed
is properly proved or not by the defendant and
without giving opportunity to defendant to
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prove the execution of gift deed has
mechanically decreed the suit ?
10] On the other hand, the learned counsel for the
respondent opposed admission of the appeal with
contention that the appeal raises no substantial
questions of law and urged to dismiss the appeal. By
referring to overall facts of the case, the learned
counsel submits that in view of denial of execution of
gift-deed by the plaintiff, the defendant ought to have
proved the execution of gift as contemplated u/s 68 of
the Indian Evidence Act. It is submitted that
examination of the attesting witness is a mandatory
requirement of law. Failure to examine the attesting
witness, the defendant has failed to prove the execution
of gift deed by the plaintiff in favour of the defendant.
It is submitted that as the plaintiff as well as the
defendant have stepped into the witness box and adduced
evidence, the burden of proof loses its significance. So
also non-framing of issue resting burden upon the
defendant to prove execution of gift-deed cannot be
raised after a period of 15 years of filing of suit, that
too at the stage of hearing of second appeal. In support
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of the submission that the examination of attesting
witness is a mandatory requirement of law, the learned
counsel has referred and relied upon decisions of the
Apex Court as well as this Court in the following
cases :-
1] Dattatray Narayan Aher v. Bhaskar Narayan Aher
(2010 (6) ALL MR 31)
2] Krishna Mohan Kul alias Nani Charan Kul &
another v. Pratima Maity & others (AIR 2003 SC
435)
3] Joseph John Peter Sandy v. Veronica Thomas
Rajkumar & another (2013 DGLS (SC) 192
11] It is further submitted that the reasons and
findings recorded by the first appellate Court to reject
the application to adduce the additional evidence suffers
from no illegality and same is in consonance with the law
settled by the Apex Court. It is submitted that in order
to lead the additional evidence, the party must bring
its case within the ambit of one of the pre-requisite
conditions laid down in Order 41 Rule 27 of the Code of
Civil Procedure. The additional evidence cannot be
permitted to fill up the lacuna and lapses on the part of
party seeking permission to lead additional evidence. It
is further submitted that to prove the execution of gift
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as contemplated u/s 68 of the Indian Evidence Act being
the requirement of law, the defendant cannot claim that
due to non-framing of issues and burden of proof placed
upon him, he could not examine attesting witness. In
support of the submissions advanced, the learned counsel
has referred and relied upon the decisions of the Apex
Court in the case of Union of India v. Ibrahim Uddin &
another (2012) 8 SCC 148) and Om Prakash v. Shanti Devi
(2015 DGLS (SC 2).
12] I have carefully considered the submissions
advanced in the light of rival pleadings, the evidence
adduced in the case, the issues framed by the trial
Court, the reasons and findings recorded by the trial
Court as well as the first appellate Court. On due
consideration of the submissions advanced, I am of the
view that a case has been made out to entertain and
admit the second appeal.
13] The appeal raises following substantial
questions of law :-
1] Whether the decisions rendered by the
Courts below are contrary to legal position set
at rest by the Apex Court in the case of
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Renikuntla Rajamma v. K. Sarwanamma reported in
(2014) 9 SCC 445) ?
2] Whether the Courts below have erred in
interpreting and applying the provisions of
Sections 122 and 123 of the Transfer of
Property Act ?
3] Whether the Courts below committed error in
law in interpreting the provisions of Section
68 of the Indian Evidence Act and holding that
the defendant has failed to prove the execution
of gift-deed (Exhibit 24) ?
4] In absence of any specific plea and issue
being framed and decided by the trial Court
resting the burden of proof upon the defendant
to prove the execution of gift-deed, whether
the first appellate Court was justified to hold
that the defendant has failed to prove the
execution of gift-deed (Exhibit 24) ?
5] Whether the first appellate Court committed
error in law in confirming the decree passed by
the trial Court and dismissing the appeal by
acting contrary to its own finding that the
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plaintiff has failed to prove that the gift
deed in question was got executed by the
defendant by playing fraud and
misrepresentation ?
6] When the gift-deed (Exhibit 24) tendered in
evidence by the plaintiff, admitted in evidence
without any objection and also read in
evidence, whether the first appellate Court was
justified in holding that execution of gift-
deed was not proved by the defendant as
contemplated u/s 68 of the Indian Evidence
Act ?
7] Whether in the facts and circumstances of
the case and examination of one of the
attesting witness by the plaintiff, the
defendant was required to prove the execution
of gift-deed by calling another attesting
witness to gift-deed (Exhibit 24) ?
8] If the Donor and Donee are alive and have
examined themselves in the case, is the
examination of attesting witness necessary to
prove the execution of gift deed u/s 68 of the
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Indian Evidence Act ?
9] Whether the first appellate Court erred in
rejecting the applications filed by the
appellant seeking leave to lead additional
evidence ?
10] Whether the trial Court erred in framing
proper issue to prove the execution of gift
deed ?
11] Whether the decisions rendered by the
Courts below are perverse and liable to be set
aside ?
14] In view of above, I am inclined to admit the
appeal and further allow the Civil Application
No.13569/2018 filed for interim relief. Accordingly, the
following order is passed :-
O R D E R
A] Admit.
B] Call R & P.
C] Issue notice to respondent.
D] Shri V.D. Sapkal, learned counsel waives
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with.
F] In view of old age of the plaintiff, hearing of the appeal is expedited. G] List the appeal for final hearing on 22.7.2019.
H] Pending disposal of second appeal, there shall be interim relief in terms of prayer clause (A) of Civil Application No.13569/2018. I] Civil Application No.13569/2018 stands disposed of.
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