Madras High Court
Govindammal And Ors. vs Ammasi Kounder on 17 February, 1998
Equivalent citations: (1998)3MLJ267
JUDGMENT K. Sampath, J.
1. Plaintiffs 1, 3 to 6, 8 to 12 and the legal representatives of the plaintiff No. 7 are the appellants. They filed suit O.S.No. 148 of 1977 before the District Munsif's Court, Kallakurichi against the respondent herein for declaration, recovery of possession and mesne profits alleging as follows: The suit property originally belonged to one Ramu Reddiar son of Muthu Reddiar. He gifted the property to his daughter Pachaiammal on 1.2.1951 under Ex.A-1. The gift was accepted by Pachaiammal and she was in enjoyment. Under Exs.A-1 to A-4 Pachaiammal gave the suit properties to the plaintiffs. From the date of the settlement deeds Exs.A-2 to A-4 the plaintiffs had been in possession and enjoyment of the suit properties. Except plaintiffs 1 to 4, nobody else had any right over the suit properties. The respondent unlawfully trespassed into the suit property. The suit was therefore necessitated for the reliefs already mentioned. The second plaintiff died pending suit. The third plaintiff and plaintiffs 5 to 12 were impleaded as heirs to the deceased second plaintiff.
2. The respondent resisted the suit contending inter alia as follows: It was not true to say that the settlement deeds Exs.A-2 to A-4 were accepted and acted upon and that the plaintiffs took possession of the properties. The plaintiffs never enjoyed the properties and Pachaiammal continued to enjoy the suit properties and under Ex.B-1 dated 20.7.1953 Pachaiammal sold two acres in the suit property to the respondent's father one Ayyasamy Kounder for Rs. 5,000 and the said Ayyasamy Kounder was in enjoyment and after his death, the respondent was in enjoyment. Even prior to the purchase from Pachaiammal, the respondent's father was in enjoyment under a bogiam executed by Pachaiammal's father Ramu Reddiar and Pachaiammal. There was no trespass by the respondent as alleged.
3. The learned District Munsif framed the necessary issues and found that the settlement deeds Exs.A-2 to A-4 were true, valid and were accepted and acted upon and that the plaintiffs 1 to 4 were in possession and enjoyment of the suit properties that they had also prescribed for title by adverse possession that the sale deed in favour of the respondent's father was not true and valid that the bogiam set up by the respondent had also not been established that the respondent had committed trespass and that the plaintiffs were entitled to the reliefs prayed for by them. By his judgment and decree dated 16.8.1982, the learned District Munsif decreed the suit as prayed for with costs. The respondent filed appeal A.S.No. 110 of 1982 before the Subordinate Judge's Court, Vridhachalam and the learned Subordinate Judge, by his judgment and decree dated 6.10.1982 allowed the appeal set aside the judgment and decree of the trial court and dismissed the suit. Aggrieved, the present second appeal has been filed. At the time of admission, the following substantial questions of law where framed for decision in the second appeal.
1. Whether the learned Judge is right in holding that Exs.A-2 to A-4 were not proved by examining an attestor in spite of the fact that the execution of the documents was admitted by the executant, the respondent, who gave evidence as P.W.2?
2. Whether the learned Judge is right in holding that the admission of P.W.2 was not sufficient to prove Exs.A-2 to A-4 as against the defendant who was only claiming under P.W.2?
3. Whether the finding of the learned appellate Judge on point No. 2 is vitiated by his failure to consider the entire evidence on record?
4. Mr. D. Rajagopal, learned Counsel for the appellants submitted that the lower appellate court made a serious mistake in law in rejecting Exs.A-2 to A-4 on the ground that the documents had not been proved to have been executed by examining the attestor to the documents. The learned Counsel submitted that the settlor herself had come and deposed before the trial court that she had executed the settlement deeds Exs.A-2 to A-4 and when once the executed had admitted the execution of the document, nothing further remained to be done by examining the attestors to the documents. According to the learned counsel, the lower appellate court erred in misinterpreting the provisions of Section 68 of the Evidence Act overlooking the proviso and also the provisions of Section 70 and Section 21 of the Evidence Act. It is the submission of the learned Counsel that the lower appellate court erred in placing reliance on the decision in Nikunja Bala v. Suchitra Dasi A.I.R. 1955 Tripura 17 and the judgment in Brahmananda v. Kanduri Charan Das . The learned Counsel further submitted that no power of revocation had been reversed in those documents and in the absence of such reservation, the reliance placed by the respondent on Ex.B-2, the revocation deed alleged to have been executed by P.W.1 Pachaiammal on 20.7.1953.
5. Per contra Mr. T. Kandasamy, learned Counsel for the respondent contended that Section 68 of the Evidence Act was absolute in its terms and that unless at least one of the attestors was examined, it must be deemed that the documents had not been validly executed. According to the learned Counsel the admission made by Pachaiammal as P.W.2 about the execution of the document would not bind the respondent. The learned Counsel further submitted that the settlement deeds Exs.A-2 to A-4 had not been accepted or acted upon or that the settlees had not been put in possession pursuant to the settlement deeds would be evident from the fact that there was a bogiam in respect of the properties covered by the settlement deeds and therefore possession could not have been handed over to the settlees by the Settlor P.W.2.
6. Let us take the question of the validity of Exs.A-2 to A-4. Section 123 of the Transfer of Property Act runs as follows:
For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed 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.
It will be pertinent to note that the section does not contemplate handing over of possession of the properties subject matter of the gift when the property gifted is immoveable property. Only in the case of movable property there could be a gift either under a deed or by delivery. The contention of the learned Counsel for the respondent that there was no handing over of possession of the suit properties by the settlor P.W.2 to plaintiffs 1 to 4 and therefore the settlements were not valid and must be deemed to have not come into effect has therefore no substance. So far as the proof of execution of Exs.A-2 to A-4 is concerned the argument of the learned Counsel for the respondent overlooks the proviso to Section 68 of the Evidence Act as also the provisions of Section 70... Section 68 of the Evidence Act runs as follows:
If a document is required by law to be attested, it shall not be used as evidence 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 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, 16 of 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.
In the instant case when P.W.2, the settlor had admitted to her executing Exs.A-2 to A-4 in view of the proviso to Section 68, it was wholly unnecessary to examine any attestor. It has to be noted that the respondent claims through his father who himself claimed to have purchased the property under Ex.B-1 from P.W.2. The admission by P.W.2 would be binding on the person who claimed under her. Section 70 of the Evidence Act runs as follows:
The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.
This along with the provisions of Section 21 of the Evidence Act should conclude the issue in favour of the settlees. Section 21 of the Evidence Act runs as follows:
Admissions are relevant and may be proved as against the person who makes them, or his representative-in-interest; but they cannot be proved by or on behalf of the person who makes them or by his representative-in-interest, except in the following cases:
(1) An admission may be proved be or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under Section 32.
(It is not necessary to notice the rest of the section.) Thus it has to be held that Exs.A-1 to A-4 have been proved to have been validly executed by the settlor P.W.2. The lower appellate court made a mistake in law in ignoring the proviso to Section 68 and the provisions of Section 70 of the Evidence Act. The judgments relied on by the lower appellate court for finding that the plaintiffs had not proved execution of Exs.A-2 to A-4 have no application to the facts of the present case. The view I am taking is covered by several decisions of this Court and other High Courts. In Somasundaram Chettiar v. Muthirullappa Pillai 37 L.W. 677, it was held that "where one of the defendants, who was the executant of the mortgage bond admits execution, there is no necessity for the plaintiff to call on attesting witness in proof of the execution, though the other defendants have remained ex parte ". It is not necessary to refer to other decisions. So far as the revocation of the settlement deed under Ex.B-1 is concerned it is established the legal position that unless power of revocation was reserved in the document itself, the power of revocation could not be exercised. In Ankamma v. Narasayya A.I.R. 1947 Mad. 127 : (1946)2 M.L.J. 557, it was held that "in the absence of any express reservation of a power of revocation in the gift deed a donor does not continue to have the right to revoke a gift. For if a man will improvidently bind himself up by a voluntary deed, and not reserve a liberty to himself by a power of revocation, a court will not loose the fetters he has put upon himself." Thus it has to be held that even if Ex.B-2 was true, it would not be a valid document. It takes us to Ex.B-1 under which the respondent's father claimed to have purchased two acres of the suit properties. When once Exs.A-2 to A-4 are held Jo be valid then the settlor would not have any right to deal with the properties of which she had divested herself. Ex.B-1 therefore would not have clothed the respondent's father with any right, title or interest in the two acres subject matter of that document.
7. The next question is regarding possession. Even according to the respondent Pachaiammal continued in possession and the bogiam set up by the respondent had not been established. No document evidencing the bogiam has been produced. Except a bald reference to a bogiam in Ex.B-1, there is absolutely no evidence to show that any bogiam was created. The lower appellate court has relied on Exs.B-5 to B-11, B-13 and B-14 kist receipts standing in the name of the respondent and also B-15 chitta extract to show that patta stood in the name of the respondent. The discussion by the lower appellate court on the question of possession is perfunctory. The trial court has adverted to all the documents produced in the case and found that the respondent had not proved his possession and threat P.W.2 and plaintiffs 1 to 4 alone had possession. The trial court has pointed out the discrepancies in the stand taken by the respondent regarding possession. The respondent did not even know the extent of the property in his possession. The evidence on the side of the respondent himself is to the effect that the respondent had been in possession for 7 or 8 years prior to the suit. His possession or his father's possession pursuant to the sale deed Ex.B-1, dated 20.7.1953 has not been established. No document evidencing the respondent's possession has been produced. The reliance placed by the lower appellate court on Exs.B-5 to B-11, B-13 and B-14 Kist receipts and B-15 chitta extract is clearly erroneous. The respondent has not established his possession at all. Consequently the substantial questions of law raised have to be answered in favour of the appellants. The second appeal will stand allowed and the judgments and decree of the lower appellate court are set aside and those of the trial court restored. However, there will be no order as to costs.