Kumar Vs. Nathulal & Anr  Insc 265 (2 May 2001)
Mohapatra & Brijesh Kumar D.P.Mohapatra, J.
Bai, widow of Pothulal, was the original owner of the suit property which is a
three storied building situated at Sangipada, Sawai Madhopur in the State of Rajasthan. On the third floor of the house
some rooms were constructed by the said Smt. Chand Bai. She mortgaged those
rooms with possession to Sugan Chand for Rs. 3700/- vide the registered
mortgage deed dated 17.2.1950.
Sugan Chand mortgaged the suit property with possession to Smt. Parsadi and Hanumandas
on 28.7.1961 for Rs.2400/- under a registered mortgaged deed. Said Smt. Parsadi
and Hanumandas in turn mortgaged the suit property with possession to Nathulal,
the respondent no.1 herein.
is in possession of the suit property.
the respondent no.1 started demolishing a portion of the suit property, Smt.Chand
Bai filed a Civil Suit No.69/70 (4/76) in the Court of the Munsif, Sawai Madhopur
for mandatory injunction, for declaration of easementary rights, etc. The suit
was decreed and the appeal filed by the respondent no.1 was dismissed. The
Second Appeal No.168/91 filed by him is pending in the High Court. During the pendency
of the suit, Smt.Chand Bai executed a gift deed on 29.1.1971 in favour of Surendra
Kumar, appellant herein.
the appellant filed a Civil Suit No.140/73/111/74 for redemption of the
mortgage. Smt.Parsadi, Hanuman Dass, Nathu Lal, Sugan Chand and Smt.Chand Bai
were impleaded as Defendant Nos.1 to 5 respectively in the said suit. It is
relevant to state here that in the suit, Nathu Lal was the main contesting
defendant. Smt.Parsadi and Hamuman Dass, Defendants 1 and 2 had entered into a
compromise with the plaintiff. Sugan Chand and Smt.Chand Bai, Defendants 4 and
5 filed written statement supporting the case of the plaintiff.
Trial Court, on perusal of the pleadings of the parties, framed ten issues of
which issue Nos.2, 7 and 9 are relevant for the purpose of the present
proceeding. The said issues are to the effect that :
Whether the plaintiff has got the right to file the suit?
Whether the gift-deed is collusive?
Whether the plaintiff is entitled to get the possession of the house in
dispute? The trial Court answered all these issues in favour of the plaintiff
and decreed the suit vide its judgment dated 15th March, 1978. The operative portion of the judgment reads :
Upon the plaintiff paying to the defendant No.3 Rs.2612.25 (Rs.2400/- mortgage
amount and Rs.212.25 as expenses for repairs etc.) the plaintiff shall have the
right to get the property in dispute redeemed and the plaintiff shall be
entitled to get the possession of the disputed property. The plaintiff shall
deposit the said amount in the Court on 30.3.78 and on the same day the
defendant Nathu Lal shall produce the documents regarding the mortgage in the
plaintiff shall also pay Rs.1300/- to Shri Sugan Chand, defendant No.4.
appeal, Civil Appeal No.11/78/75/86 filed by the respondent no.1 challenging
the judgment/decree of the trial Court was allowed by the District Judge, Sawai
Madhopur and the suit was dismissed vide the judgment dated 11th October, 1989.
Second Appeals filed by the appellant were dismissed summarily by the Rajasthan
High Court vide its order dated 7th August, 1991. The relevant portion of the order is quoted below:
the arguments of the learned counsel for the Appellant in the aforesaid both
appeals for admission and perused the Judgments of the Courts below and the
material available on the file.
not find any question of law on which the decisions of the lower Courts require
both the aforesaid appeals being without merits are hereby dismissed.
these appeals. Shri U.N.Bachawat, learned senior counsel, appearing for the
appellant contended that the High Court erred in law in summarily dismissing
the second appeals filed by the appellant. He further contended that the lower
appellate Court in the facts and circumstances of the case, erred in law in
holding that the deed of gift was not duly proved since one of the attestors
has not been examined in the case. According to Shri Bachawat, the document was
rightly received in evidence by the Trial Court and marked as Exhibit-3.
contra, Shri Ajay Chaudhary, learned counsel appearing for the respondent
supported the judgment of the lower appellate court and also the summary
dismissal of the second appeals by the High Court.
have considered the contentions advanced by counsel for the respective parties.
As noted earlier, the Trial Court answered the three relevant issues in the
suit i.e. issue nos.2, 7 and 9 in favour of the plaintiff. The discussions in
the judgment show that the trial Court was not impressed by the contention raised
on behalf of the contesting defendant that the deed of gift has not been proved
by producing any one of the attesting witnesses as required under Section 68 of
the Indian Evidence Act, 1872.
the deed of gift the Court held that the plaintiff has neither the right to
redeem the suit property nor recover possession. Referring to the evidence of
DW1 Nathu Lal, the Court observed that he has not stated even a single word
about the collusiveness of the deed of gift and, therefore, there is no basis
for holding the deed of gift as collusive. The trial Court further held that
since the donor has admitted the genuineness and validity of the deed of gift,
any other person cannot be permitted to challenge its genuineness and validity
if no prejudice is caused to his interest by virtue of the document. The Court
further observed that no such issue has been framed in the suit whether
defendant no.5 Chand Bai executed any deed of gift in favour of the plaintiff
in respect of the property in dispute or not.
perusal of the judgment of the lower appellate Court it is clear that the
District Judge has reversed the decision of the trial Court on the ground that
the plaintiff has not produced the original deed of gift by which he claims
himself to be the owner of the suit property. In the circumstances, the
appellate Court held, mere admission of the execution and validity of the deed
of gift by Chand Bai in the pleading is not sufficient to entitle the plaintiff
to get a decree in the suit.
High Court, as noted earlier, summarily dismissed the second appeal holding
that the case did not involve any substantial question of law.
perusal of the written statement filed by defendant no.3, who is respondent
no.1 herein, it appears that the assertion in the plaint that Chand Bai has
executed a deed of gift in favour of the plaintiff and, therefore, he is
entitled to redeem the mortgage property and recover possession of the same was
not specifically denied. In paras 5 and 6 of the written statement, there was
merely a general denial of the averments in the plaint. Regarding the deed of
gift the plea taken in the written statement was that it was a collusive
transaction. The further case pleaded by the defendant no.3 was that he has no privity
of contract with the plaintiff as he got the property by mortgage from Smt.Parsadi
and Hanumandas and, therefore, the plaintiff is not entitled to redeem the
mortgage and recover possession of the property.
absence of any specific denial of execution of the deed of gift by Chand Bai,
the trial Court did not and, in our view, rightly frame any issue regarding the
execution and validity of the deed of gift. On the plea that the gift was a
collusive transaction, the trial Court observed that no evidence was led on
behalf of the defendant no.3 in support of his case.
123 of the Transfer of Property Act, 1882 provides :
Transfer how effected.- For the purpose of making a gift of immovable 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.
present case there exists a registered deed of gift signed by the donor and
attested by two witnesses.
the requirement of the law as incorporated in the Section is satisfied. Section
68 of the Indian Evidence Act, 1872 makes a provision regarding proof of
execution of a document required by law to be attested. Therein it is laid down
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.
proviso to the section, which is relevant for the present purpose, reads:
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, 1908 (16 of
1908), unless its execution by the person by whom it purports to have been
executed is specifically denied.
supplied) On a plain reading of the proviso, it is manifest that a registered
deed of gift can be received in evidence without examining one of the attestors
if the person who has executed the deed of gift has not specifically denied its
execution. In the present case, the donor Chand Bai has specifically admitted
execution of the deed of gift in favour of the appellant. Therefore, the lower
appellate Court was in error in holding that the deed of gift has not been duly
proved since one of the attestors has not been examined as witness. Indeed the
certified copy of the registered deed of gift was produced in the trial Court
along with an application filed by the plaintiff in the previous suit, suit
No.69/70(4/76) that the same may be called for. The trial Court, being
satisfied about the reason for non-production of the original document, marked
the certified copy of the deed of gift as Exhibit-3.
High Court, as noted earlier, dismissed the second appeals on the ground that
no substantial question of law arises in the case. We are constrained to hold
that the order was passed without due application of mind. The judgment of the
lower appellate Court was clearly vitiated by error of law in holding that the
deed of gift was not duly proved in the case. In the result, the appeals
succeed and they are allowed with costs. The judgment/order passed by the High
Court dismissing the second appeals, thereby confirming the judgment of the
District Judge are set aside and the judgment and decree passed by the trial
Court is restored.