Patna High Court
Janki Devi vs Dharamnath Prasad And Ors. on 7 December, 1983
Equivalent citations: AIR1984PAT149, AIR 1984 PATNA 149, (1984) BLJ 247
JUDGMENT Hari Lal Agrawal, J.
1. This appeal by defendant No. 1 is directed against the order of the trial court dt. 27-5-1070 allowing the application of the respondents for their substitution in place the deceased plaintiff in a suit for partition, at the final decree stage in the following circumstances.
2. The plaintiff Mossomat Bhagwatia, widow of one Shiv Sah. instituted a partition suit against the defendant No. 1 appellant claiming half share in the estate of her husband who had died long before. The preliminary decree was passed in 1966 and the plaintiff died on 5-11-1969 but before that she is alleged to have executed a deed of gift on 29-10-1969 in favour of the respondents, This deed was registered at Chapra Registration Office as the properties in question were situated within the territorial limits of that office.
3. On the death of Mossomat Bhagwatia. her transferees had made an application for their transposition as the plaintiffs and that had already been allowed in the meantime. The respondents also applied for their substitution on the ground of the devolution of the property in their favour by virtue of the registered deed of gift (Ext. 1). An objection was taken by the appellant inter alia, on the ground that the deed of gift was fraudulent.
Evidence was led by the parties on the question of due execution and registration of the deed of gift and the trial court satisfied on that evidence, has allowed the application of the donees and accordingly the appellant has filed the present appeal.
4. Mr. S. C. Ghose. appearing for the appellant, took us through the evidence of the witnesses examined by the donees (respondents) to prove the due execution of the deed in question. On the evidence he however, attempted to point out that the attesting witnesses, namely, P. Ws. 1 and 3, were not competent inasmuch as they were not present at the time of the alleged execution of the deed. He also tried to make out a case that writing of the signatures over the alleged thumb impression of Mossomat Bhagwatia was indicative of the fact that the thumb impression was taken on a blank paper. He has also tried to make out a point on the basis of certain contradictions here or there, regarding the thumb impression being on the left side or the right side of the attestation of a particular witness, or the like.
All these circumstances have been duly considered by the court below, On the evidence it is clear that Mossomat Bhagwatia was not carrying well with the appellant, her step-daughter, and was living with the donees, the respondents. The trial court has taken this fact as a circumstance in favour of the respondents. Therefore. I do not find it possible to take a view different from the trial court in the matter.
It may also be mentioned that the appellant had taken no step for comparison of the thumb impression of Mossomat Bhagwatia with her admitted signature and the witnesses who were examined on 'behalf of the donees have clearly stated that they had seen the execution of Ext. 1 by Mossomat Bhagwatia.
5. The other point which was argued with emphasis by Mr. Ghose, was that the registration of the document having been made after the death of Mossomat Bhagwatia, was not done in accordance with law inasmuch as the heir of Mossomat Bhagwatia. namely, the appellant, was not noticed. He took us through Sections 32 to 35 of the Registration Act.
The document in question was presented for registration by the beneficiaries, as required by law. The Registering Officer also took an affidavit from them regarding their identity and having been satisfied in that regard completed the registration. Section 35 (2) of the Registration Act, which was pressed into service, does not lay down any rule that in case of the death of an executor of a document the registering authority has to serve notice of the proposed registration of any document of any disposition of a property by the deceased executant. Mr. Ghose's reliance placed on the case of Abdul Aziz Khan v. Mt. Kaniz Fatima (AIR 1933 All 302) as well as para 10 of the case of M. L. Abdul Jabbar Sahib v. H. Venkata Sastri and Sons (AIR 1969 SC 1147), is entirely misplaced and does not support his contention,
6. For the reasons discussed above, I do not find any merit in this appeal and would dismiss the same, but without costs.
S. Shamsul Hasan, J.
7. I agree.