Karnataka High Court
Hanumantappa vs Bhimawwa And Ors. on 19 January, 2006
Equivalent citations: AIR2006KANT148, ILR2006KAR1113, 2006(2)KARLJ581, AIR 2006 KARNATAKA 148, 2006 (3) ALL LJ NOC 473, 2006 (2) AIR KANT HCR 351, 2006 AIHC 1622, (2006) 2 KANT LJ 581, (2006) 3 RECCIVR 538(1), (2006) 3 ICC 302, (2006) 40 ALLINDCAS 948 (KAR), 2006 (2) AIR KAR R 351
Author: V.G. Sabhahit
Bench: V.G. Sabhahit
JUDGMENT V.G. Sabhahit, J.
1. This appeal by the defendant is directed against the judgment and decree passed by the Fast Track Court, Bijapur, in RA No. / dismissing the appeal and confirming the judgment and decree passed by the Court of Prl. Civil Court Judge(Jr. Dn.) Bijapur, in O.S. No. 440/98 dated 11.8.2004 decreeing the suit of the plaintiff for possession of suit schedule property from the defendant.
2. I have heard the Learned Counsel appearing for the appellant.
3. The Learned Counsel appearing for the appellant submitted that the gift deed under which the possession is claimed by the plaintiff has not been proved in accordance with law. The Learned Counsel submitted that under Section 68 of the Evidence Act (for short 'the Act') where the document is required to be compulsorily attested same can be proved by examining one of the attesting witnesses and since the execution of the gift deed is denied, it is incumbant upon the plaintiff to examine one of the attesting witnesses to the gift deed. In support of his contention he has relied upon the decision of the Hon'ble Supreme Court in Surendra Kumar v. Nathulal wherein it is held that when the person who has executed the gift deed has admitted the execution of the gift deed, question of examining attesting witnesses does not arise under proviso to Section 68 of the Act. The Learned Counsel submitted that in view of the principles laiddown in the said case, it must be inferred that whether the person who has executed the gift deed does not admit execution of the gift deed, the same should be proved by examining the attesting witnesses. The Learned Counsel also relied upon the decision of this Court in Baiappa Tippanna v. Asangappa Mallappa 1959 Mysore Law Journal 920 wherein it has been held that even in a case where there is no specific denial and where the proviso applies, it is necessary for the plaintiff to prove due execution and attestation of the deed sued on and the proviso to Section 68 of the Act does not dispense with proof of the document altogether and the document has still to be proved, although it may not be in the manner indicated in Section 68 of the Act itself. He has also relied upon the decision of this Court in Kumbara Narasimhappa v. Lakkanna 1959 MYS.L.J. 122 wherein it is held that specific denial of execution within Section 68 of the Act need not be necessarily by the executant and it may be by any one of the defendant interested in the denial of the execution of the document. The Learned Counsel further submitted that in view of the fact that plaintiffs have not been able to prove execution of the deed the Courts below were not justified in decreeing the suit of the plaintiffs and wherefore the decree passed by the Courts below is perverse and arbitrary.
4. I have considered the contention of the Learned Counsel for the appellant with reference to the material on record.
5. The plaintiffs filed the suit for possession of the suit schedule property from the defendant. The plaintiffs are the daughters of the defendant. It is averred in the plaint that plaintiffs mother Smt. Nagavva was the first wife of the defendant and said Nagavva was the daughter of one Smt. Yallawwa wife of Hanamant Halli. Smt. Yallawwa was the exclusive owner in possession of three lands bearing Rs. Nos. 95/ 3, 84/1 measuring 3 acres 4 guntas and 6 acres respectively. Smt. Nagavva predeceased grandmother Smt. Yallawwa and as such Smt. Yallawwa had special love and affection towards her grand daughters-the plaintiffs and Yallawwa gifted the said lands in favour of the plaintiffs under a registered gift deed dated 21.6.1972. Accordingly the names of the plaintiffs were mutated under ME. No. 2142. Since plaintiffs were minors at that time, their father-the defendant was shown as guardian for minor plaintiffs and defendant was in possession and enjoyment of the suit lands on behalf of the plaintiffs and defendant came in wrongful possession of RS. Nos. 84/ 1A and 84/1B and wherefore the suit for possession.
6. The suit was resisted by the defendant admitting the relationship. However, it is averred that the averments made in the plaint that the plaintiffs are entitled to possession of the schedule property in view of the gift deed was denied. It is denied that Smt. Yallawwa has special love and affection towards the plaintiffs and she gifted the suit schedule properties in favour of the plaintiffs and it is further averred that after the marriage plaintiffs went to their husbands place and only at the instant of husband the plaintiffs have brought up a false suit which is liable to be dismissed.
7. The Trial Court framed appropriate issues having regard to the above said pleading. On behalf of the plaintiffs, second plaintiff was examined as PW.1 and also examined-PW.2 and got marked Exs. PI to P5. On behalf of the defendant, defendant was examined as DW. 1 and also examined DWs. 2 to 5 and got marked Exs. D1 to D5. The Trial Court after considering the material on record held that plaintiffs have proved execution of the gift deed and the fact that they were minors at the time of gift and the defendant was in possession of the property on behalf of the plaintiffs and they are entitled to possession of the schedule property and accordingly decreed the suit of the plaintiffs by judgment dated 11.8.2004. Being aggrieved by the said judgment and decree, the defendant preferred RA. 165/05 and the First Appellate Court by judgment dated 22.10.2005 dismissed the appeal and confirmed the judgment and decree passed by the trial court. It is clear from the perusal of the material on record that plaintiffs are the daughter of the defendant. According to the plaintiffs, the grandmother of the plaintiffs Yellawwa executed gift deed on 21.6.1972 in respect of the schedule property in favour of the plaintiffs and since plaintiffs were minors, the possession was taken on behalf of the plaintiffs by the defendant-the father of the plaintiffs and they are entitled to possession in view of the gift deed. The Courts below have concurrently held that the execution of gift deed had been proved and in arriving at the said conclusion the Courts below have relied upon the material on record including the facts elicited in the evidence of the defendant who has clearly admitted that Yellawwa executed a gift deed and he as the minor guardian of the plaintiffs who were minors at the time of gift was put in possession and it is also elicited in the cross examination of DW.2 that it is true that Yellawwa has executed a gift deed and since plaintiffs were minors defendant was put in possession of the property on behalf of the minors and wherefore having regard to t he above said facts and circumstances of the present case it is clear that when the defendant admits the execution of the gift deed and the fact; that he was put in possession on behalf of his minor daughters-the plaintiffs, it is not open to him to deny the execution of the gift deed and infact the facts elicited in the cross examination itself would show that he has admitted the execution of gift deed and facts elicited in the cross examination of DW.2 also shows that he also admits execution of the gift deed in favour of the plaintiffs and the fact they were minors and possession of the property was handed over to defendant as the guardian of the plaintiffs and wherefore the decisions relied upon by the Learned Counsel for the appellant would not helpful to him in the present case as in the present case it is clear that the executant has not denied the execution of gift deed and defendant in his evidence has admitted execution of the gift deed and question of examining attesting witness does not arise. In the decision of the Supreme Court in Surendra Kumar v. Nathulal (Supra) the Hon'ble Supreme Court held that where the executant had admitted execution of gift deed, question of examining attesting witness does not arise and in the decision of Balappa Tippanna v. Asangappa Mallappa cited above, this Court has held that when the executant has not denied the execution of gift deed the document can be proved although it may not be in the same manner as indicated under Section 68 of the Act itself that is by examining the attestator and the decision relied upon in the case of Kumbara Narasimhappa v. Lakkanna this Court has laid down that defendants who are interested in the denial of execution can deny the execution of the document and in the present case both the defendants have denied the execution of the document in the written statement, the truth has come out in the evidence of DW. 1 wherein he has admitted that he was put in possession of the property as the minor guardian as the plaintiffs were minors at the time of execution of the gift deed and his witnees D W.2 has also admitted the execution of the gift deed and wherefore the question of examining attestator in the present case does not arise and the finding of the Courts below that the gift deed has been proved in accordance with law, is justified and the same do not give rise to any substantial question of law to be decided in this appeal.
Accordingly, the appeal is dismissed.