Orissa High Court
Jateswar @ Babaji Charan Lenka vs Parmeswar Lenka & Others on 1 March, 2019
Equivalent citations: AIR 2019 (NOC) 300 (ORI.), AIRONLINE 2019 ORI 172, (2019) 198 ALLINDCAS 787 (2019) 1 CLR 1071 (ORI), (2019) 1 CLR 1071 (ORI)
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
SA No.349 of 2000
From the judgment and decree dated 26.8.2000 and 8.9.2000 respectively
passed by Sri S. Raulo, Addl. District Judge, Kendrapara in Title Appeal
No.45 of 1991 reversing the judgment and decree dated 16.8.1991 and
3.9.1991 respectively passed by Sri P.R. Bohidar, Munsif, Kendrapara in
T.S. No.156 of 1984.
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Jateswar @ Babaji Charan Lenka
(dead) through L.Rs .... Appellants
Versus
Parmeswar Lenka & others .... Respondents
For Appellants ... Mr.Somnath Pattnaik, Advocate.
For Respondents ... Mr. N.C. Pati,
Mr. B. Das, Advocates.
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH Date of hearing: 14.02.2019 : Date of judgment: 01.03.2019 Dr. A.K.Rath, J Defendant no.1 is the appellant against a reversing judgment.
2. Plaintiff-respondent no.1 instituted the suit for declaration that the gift deed dated 5.3.1964 executed by his father Muralidhar Lenka in favour of defendant no.1 is null and void. Case of the plaintiff was that Schedule-A property was the ancestral property of the plaintiff. The same was recorded in the name of his grand father Khetrabasi Lenka in the year 1930. Khetrabasi died in the year 1939 leaving behind his son Muralidhar, father of the plaintiff and Bani Bewa. Muralidhar died in the year 1974 leaving 2 behind his son plaintiff no.1, widow Suma Bewa and his mother Bani Bewa. Out of surplus Schedule-A property, his father acquired Schedule-B property. The same was blended in the joint family property. Since he was suffering from various diseases, his father brought defendant no.1 to look after the cultivation work and house hold affairs. His father was ill and bed-ridden. Defendant no.1, on the pretext to execute the power of attorney, took his father to the Sub-Registrar Office, Kendrapara and obtained a gift deed, Ext.1 in the guise of power of attorney in connivance with scribe and attesting witness. In the gift deed, it was mentioned that his father was issueless. Subsequently, his father came to know that the document was the gift deed, but not a power of attorney. Defendant no.1 admitted his guilt. He made an endorsement on the back side of Ext.1 on 17.1.1967 that he had no claim over the property. It was further pleaded that the plaintiff and defendants 2 and 3 were in joint possession of the gifted property. Defendant no.1 had no semblance of right, title and interest over the gifted property. The gift deed had not been acted upon. Muralidhar and after him, the plaintiffs are in possession of the suit land. Other defendants are purchasers from plaintiffs except defendant no.5, who has purchased some portion of the suit land from defendant no.1. Cause of action arose on 11.9.1984, when defendant no.1 laid a claim over the gifted properties.
3. Defendant no.1 entered appearance and filed the written statement pleading, inter alia, that the plaintiff had left his home when he was around 10-12 years old. Defendant no.1 was staying with the father of the plaintiff. As the defendant no.1 was looking after the cultivation work, plaintiff's father executed the gift deed, Ext.1, on 5.3.1964 and delivered possession of the gifted property.
3Father of the plaintiff died in the year 1974. Thereafter, the plaintiff returned to his home. As the financial condition of the plaintiff was miserable, the plaintiff sold Schedule-C property to defendant no.1 on 25.6.1977 for a consideration of Rs.1000/-.
4. Defendant no.5 filed a written statement pleading, inter alia, that the plaintiff at his early age left the house and returned after the death of his adoptive father. Defendant no.1 had performed the obsequies of the father of the plaintiff. Defendant no.1 was looking after the cultivation work of the father of the plaintiff. Out of love and affection, the father of the plaintiff executed Ext.1 in favour of defendant no.1. Defendant no.1 was owner in possession of the gifted property. He alienated Ac.12.05 dec. of land in favour of defendant no.5 on 7.6.1983 for a consideration of Rs.3000/- and thereafter delivered possession.
5. Stemming on the pleadings of the parties, the trial court struck seven issues. Parties led evidence, oral and documentary. The trial court dismissed the suit with the finding that the plaintiff has failed to prove that the gift deed, Ext1, was obtained fraudulently. Defendant no.1 is in possession of the suit land. The suit is barred by limitation. Felt aggrieved, plaintiff filed Title Appeal No.45 of 1991 before the Addl. District Judge, Kendrapara. The appellate court came to hold that the suit land including the gifted land was the undivided joint family co-parcener property of Muralidhar and the plaintiff. The plaintiff was a minor co-parcener. Execution of gift deed, Ext.1, by Muralidhar without consent of the plaintiff is void. Defendant no.1 had relinquished the property and made an endorsement in the back side of Ext.1, which can be used for collateral purposes. No attesting witness had been examined to prove the contents thereof as required under Section 68 of the Indian 4 Evidence Act. Mere marking of a document would not prove the contents thereof. D.W.1, identifier cannot take place of an attesting witness. D.W.1 had no knowledge about the execution and contents of Ext.1. The contents of Ext.1 had not been duly proved by D.W.1. Ext.1 was produced from the custody of the plaintiffs. Thus Ext.1 had not been acted upon. D.W.1 had admitted before the settlement authority in respect of relinquishment and given consent to record the gifted property in favour of the plaintiff. Admission of a party is a substantive evidence. Muralidhar was ill. Defendant no.1 was living in the house of Muralidhar and looking after the cultivation. Defendant no.1 was not in possession of the gifted property of Muralidhar. Defendant no.1 purchased a part of the property from the gift deed, Ext.1, from the plaintiff. Ext.1 was obtained by exercising fraud and misrepresentation and is void. Article 59 of the Limitation Act has no application. Article 109 of the Limitation Act applies to the case. The suit was filed within the prescribed period of limitation. Held so, it allowed the appeal. It is apt to state that during pendency of the appeal, sole appellant died leaving behind the legal heirs, who have been substituted.
6. The second appeal was admitted on the substantial questions of law. The same are -
"i) Whether learned appellate court is justified in holding that the suit is not barred by limitation in view of Article 109 of the Limitation Act when the plaintiffs have filed the suit for a declaration of gift deed dt.5.3.64 as null and void and fraudulent which is only incidental or subsidiary to the main relief ?
ii) Whether the learned lower appellate court is justified in holding that Ext.1 has not been proved of its contents in accordance with the provisions of the Section 68 of the Evidence Act when the Ext.1 i.e the alleged gift deed has been exhibited without objection by the defendant no.1 and whether the said document can be challenged at a subsequent stage and the contents thereof are held to be proved or not ?5
7. Heard Mr. Somnath Pattnaik on behalf of Mr. U.C. Pattnaik, learned counsel for the appellant and Mr. N.C Pati along with Mr.B. Das, learned counsel for the respondents.
8. Mr. Pattnaik, learned counsel for the appellant submitted that the father of the plaintiff had executed the gift deed dated 5.3.1964, Ext.1, in favour of defendant no.1. Possession of the land was delivered in favour of defendant no.1. The gift deed had been acted upon. Under Article 59 of the Limitation Act, the period of limitation is three years to cancel or set aside or the contract rescinded first become known to him. The father of the plaintiff and the plaintiff himself came to know the execution of the gift deed prior to 17.1.1967. The suit was filed in the year 1984, which is beyond the prescribed period of limitation. He placed reliance on the decision of the apex Court in the case of Abdul Rahim and others v. Sk. Abdul Zabar and others (2009) 6 SCC 160.
9. Per contra, Mr. Pati, learned counsel for the respondent no.1 submitted that Muralidhar, father of the plaintiff was ill and bed-ridden. Defendant no.1 was residing in his house to look after cultivation work. In the guise of power of attorney, he obtained the gift deed in connivance with the scribe and attesting witness. The same has not been acted upon. Plaintiff is in possession of the land. Defendant no.1 had purchased a part of the gifted property, which pre-supposes that the gift deed had not been acted. The gift deed was in the custody of the plaintiff. The plaintiff produced the same in the court. He further submitted that Article 59 of the Limitation Act is the general provision, whereas Article 109 of the Limitation Act is the special provision. Article 109 of the Limitation Act shall apply. The suit was filed within the prescribed period of limitation. He further contended that the document was marked without objection. The 6 same is not conclusive in nature. The decision cited by the learned counsel for the appellant is distinguishable on facts. In the said case, the parties are Muslims. He placed reliance on the decisions of the apex Court in the case of Ningawwa v. Byrappa Shiddappa Hireknrabar and others, AIR 1968 SC 956, P.C. Purushothama Reddiar v. S. Perumal, AIR 1972 SC 608, Union of India v. Moksh Builders and Financiers Ltd. and others, AIR 1977 SC 409, Abdul Rahim and others v. Sk. Abdul Zabar and others, AIR 2010 SC 211 and the decisions of this Court in the case of Land Acquisition Officer, D.I.S., Cuttack v. Madan Gajendra and others, 41 (1975) CLT 869, Sailendra Kishore Patnaik v. Harekrushna Satpathy and others, AIR 1978 Orissa 125, Bhagyarathi Das and another v. Agadhu Charana Das, 62 (1986) CLT 298, Bhukhan Sahu v. Bharat Chandra Sahu and others, 66 (1988) CLT 389, Naladhar Mahapatra and another v. Seva Dibya and others, AIR 1991 Orissa 166, Surendra Kumar Patra and others v. Arjun Charan Patra and others, 74 (1992) CLT 427 and Trilochan Naik and others v. Sukuru Sethi and others, 1992 (I) OLR 296.
10. Before adverting to the contentions raised by the learned counsel for the parties, it is apt to refer to the decisions cited by them. In P.C. Purushothama Reddiar, the apex Court held that once a document is properly admitted the contents of that document are also admitted in evidence although the contents may not be conclusive evidence.
11. In Naladhar Mahapatra, this Court held that once a document is admitted into evidence, without objection the document cannot be challenged at a subsequent stage, but in a case where a document which cannot be admitted into evidence due to some prohibition in law, even if it is admitted into evidence without 7 objection, the Court can come to a finding that the document though admitted is legally inadmissible.
12. In Madan Gajendra, this Court held that once a sale deed is admitted without objection, the contents thereof are also held to be proved. The same view was reiterated in Bhagyarathi Das.
13. Bhagyarathi Das was followed in Sailendra Kishore Patnaik. This Court held that when documents are marked as exhibits without objection of a particular party, that party cannot raise the objection that the said document has not been admitted in evidence, but that party can impeach that document and the contents thereof in all other possible manner.
14. In Trilochan Naik, this Court held that the gift of coparcener is void and does not bind the other coparceners. This Court referred to Mayne's Hindu Law and Usage, 12th Edition, paragraph-406, where the law has been summarized as follows:
"It is now equally well settled in all the States that a gift or devise by a coparcener in a Mitakshara family of his undivided interest is wholly invalid..."
15. In Ningawwa, the apex Court held that it is well- established that a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party defrauded. Until it is avoided, the transaction is valid, so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded. It was further held that the legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document out as to its character. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable.
816. In Union of India v. Moksh Builders and Financiers Ltd. and others etc., AIR 1977 SC 409, the apex Court held that the admission of a party is substantive evidence of the fact.
17. In Surendra Kumar Patra, the plaintiff was aggrieved by the alienation made by his father by way of gift deed in respect of the disputed property. This Court held that Article 109 of the Limitation Act applies to a suit which is filed to set aside an alienation made by father of the ancestral property. It was held that the case is squarely covered by Article 109 of the Limitation Act.
18. In Bhukhan Sahu, the gift deed was obtained from the plaintiff by exercise of fraud and misrepresentation. This Court held that Article 59 of the Limitation Act has no application.
19. In Abdul Rahim, the apex Court held :
"17. We, therefore, are of the opinion that the High Court committed a serious error in opining that the possession had not been handed over to Razak by the donor.
18. Limitation for filing a suit in a case of this nature is governed by Article 59 of the Limitation Act.
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19. A suit for cancellation of transaction whether on the ground of being void or voidable would be governed by Article 59 of the Limitation Act. The suit, therefore, should have been filed within a period of three years from the date of knowledge of the fact that the transaction which according to the plaintiff was void or voidable had taken place. The suit having not been filed within a period of three years, the suit has rightly been held to be barred by limitation.
20. In Abdul Rahim, the interpretation and/or application of Islamic Law on gift vis-à-vis handing over possession of the property gifted was the question involved in the case. The apex Court held that Article 59 of the Limitation Act applies to set aside the gift deed. Abdul Rahim is distinguishable on facts.
21. Article 109 of the Limitation Act is quoted below:
109. By a Hindu governed Twelve years When the alienee takes 9 by Mitakshara law to set possession of the aside his father's property.
alienation of ancestral property.
22. Article 109 of the Limitation Act shall be come into play, when a Hindu governed by Mitaksara law instituted the suit to set aside his father's alienation of ancestral property. The period of limitation is 12 years, when an alienee takes possession of the property. In Surendra Kumar Patra, this Court held that Article 109 of the Limitation Act applies to a suit which is filed to set aside an alienation made by the father of the ancestral property. In the instant case, the alienee had not taken over the possession of the suit property. The suit was instituted to set aside the gift deed. Defendant no.1 purchased some land from the plaintiff including a portion of the suit land on 25.6.1977 Ext.4. The inescapable conclusion is that the suit was instituted within the prescribed period of limitation.
23. Reverting to the facts of the case and keeping in view the law laid down in the decisions cited supra, this Court finds that in the gift deed, Ext.1, it is stated that Muralidhar was issueless. But then, defendant no.1 in the written statement has pleaded that the plaintiff left home when he was around 10-12 years old. He was looking after the entire cultivation work of his father. His father executed the gift deed. Thus he admits that Muralidhar was the father of the plaintiff. The appellate court held that the suit land including the gifted land was the undivided joint family co-parcenary property of Muralidhar and the plaintiff. Plaintiff was a minor, when the gift deed was executed. There is no evidence that defendant no.1 was in possession of the land. The plaintiff was in possession of the purported gifted property and other properties on behalf of the donor till his death in the year 1974. It further held that the gift deed was produced from the custody of the plaintiff. Defendant no.1 had 10 endorsed on the back side of Ext.1 and relinquished his claim over the gifted land. No attesting witness had been examined to prove the contents of Ext.1. Provisions contained in Sec.68 of the Indian Evidence Act had not been complied with. D.W.1 was the identifier. The examination of the identifier in place of an attesting witness is not sufficient compliance of Sec. 68 of the Indian Evidence Act. D.W.1 had no knowledge regarding execution and the contents of the gift deed, Ext.1. The gift deed has not been proved in accordance with the provision of Sec. 68 of the Indian Evidence Act and as such, it will not covey title. Execution of the gift deed is shrouded with suspicion. The gift deed had not been acted upon. D.W.1, who was the cousin of Muralidhar, was looking after him and cultivation work. Defendant no.1 has not mutated the land in his favour. Defendant no.1 had also purchased the lands under Ext.4 from the plaintiff including a portion of the suit land mentioned in the gift deed, which militates against his claim of possession of the purported gifted land. Defendant no.1 had not taken any steps to mutate the land in his favour. The plaintiff used to pay rent, vide Ext.15. These are essentially finding of facts. There is no perversity in the said finding.
24. The apex Court, in the case of Asokan vs. Lakshmikutty and others, (2007) 13 SCC 210, on an interpretation of Sec.122 of the Transfer of Property Act, held:
"13. ...... The definition of "gift" contained in Section 122 of the Transfer of Property Act provides that the essential elements thereof are:
(i) the absence of consideration;
(ii) the donor;
(iii) the donee;
(iv) the subject-matter;
(v) the transfer; and
(vi) the acceptance.
14. Gifts do not contemplate payment of any consideration or compensation. It is, however, beyond any doubt or dispute that in order to constitute a valid gift 11 acceptance thereof is essential. We must, however, notice that the Transfer of Property Act does not prescribe any particular mode of acceptance. It is the circumstances attending to the transaction which may be relevant for determining the question. There may be various means to prove acceptance of a gift. The document may be haned over to a donee, which in a given situation may also amount to a valid acceptance. The fact that possession had been given to the donee also raises a presumption of acceptance. (See Sajukta Ray v. Bimelendu Mohanty, Kamakashi Ammal v. Rajalakshmi and Samrathi Devi v. Parasuram Pandey).
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16. While determining the question as to whether delivery of possession would constitute acceptance of a gift or not, the relationship between the parties plays an important role."
25. The apex Court in Asokan held that the Transfer of Property Act does not prescribe any particular mode of acceptance of gift deed. It is the circumstances attending to the transaction which is relevant for determining in question.
26. In the instant case, the gift deed was produced from the custody of the plaintiff. Defendant no.1 had purchased the property from the plaintiff, vide Ext.4, wherein some of the properties mentioned in the gift deed had been included. The circumstances would clearly indicate that the gift deed had not been accepted. No attesting witness had been examined by defendant no.1. The identifier is not a substitute of attesting witness. The recital of the gift deed shows that Muralidhar was issueless. But then, defendant no.1 in his written statement has admitted that he was looking after the properties of the father of the plaintiff. The defendant was not in possession of the gifted property. The attending circumstances will clearly reveal that the gift deed had not been acted upon. Thus no title has been conveyed to defendant no.1. The substantial questions of law are answered accordingly.
1227. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
Dated 1st March, 2019/PKS