IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
RSA No. 71/2006
Subodh Nath & Ors.
……Appellant
VERSUS
Fulu Rani Devi
……Respondent
BEFORE
HON’BLE MR. JUSTICE SUMAN SHYAM
For the Appellant
:
Mr. B.R. Dey, Sr. Advocate
For the Respondent
:
Mr. N. Dhar, Advocate
Date of hearing and judgment
:
13-05-2015
Judgment and Order (Oral)
This second appeal has been preferred against the judgment and decree
of reversal dated 02-07-2005 passed by the learned District Judge, Karimganj in
Title Appeal No. 12/2003 thereby allowing the first appeal by setting aside the
judgment and decree dated 04-09-2003 passed by the learned Civil Judge (Sr.
Div.), Karimganj in Title Suit No. 10/1996 decreeing the suit of the appellant/
plaintiffs.
2.
The brief fact of the case as projected in the plaint is that the suit land
originally belonged to one Ramu Nath who died intestate in the year 1926
leaving behind two sons, viz. Jogendra Nath and Sachindra Nath. After the death
of Ramu Nath the aforementioned two sons had inherited the suit land beside
other landed property from their father and were holding the said property in
ejmali. Jogendra Nath died in the year 1971 leaving behind the plaintiffs and the
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proforma defendant No. 5 and his own brother Sachindra Nath and the above
mentioned plaintiffs No. 2 to 5 who are the daughters and sons of late Jogendra
Nath. Proforma defendant No. 5 and mother of the plaintiff No. 2 to 5, Kamada
Bala Debi are the daughters of late Jogendra Nath. After the death of Jogendra
Nath, plaintiff No. 1, Kamada Bala Debi along with other co-sharers Sachindra
Nath and proforma defendant No. 5 had been enjoying the suit property jointly
along with other landed property left behind by Ramu Nath. Kamada Bala Debi
died in the year 1992 leaving behind plaintiff No. 2 to 5 as the legal heirs.
Sachindra Nath died in the year 1976 leaving behind his wife Pramila Debi and
the plaintiffs as well as the proforma defendant No. 5 as his legal heirs and
accordingly the property described in the schedule to the plaint remained in
ejmali holding of the said legal heirs until the death of Pramila Debi. After the
death of Pramila Debi entire property described in the schedule to the plaint
along with other landed property of late Ramu Nath automatically devolved upon
the plaintiffs and the proforma defendant No. 5. Promila Debi died in the year
1993 leaving behind the above named plaintiff and the proforma defendant No. 5
and accordingly they have been maintaining their physical possession over the
suit land without any interference from any part.
3.
It is the case of the plaintiffs that sometime in the first part of the year
1995 it had come to their notice that principal defendants have created a
collusive, forged and fabricated gift deed in their favour pertaining to the suit
land and thereafter on the basis of relevant enquiry made by the plaintiffs, they
could obtain the certified copy of a registered deed of gift bearing No. 2111
dated 13-07-1989. The certified copy of the registered gift deed was obtained by
them only on 04-04-1995 pursuant whereto they could come to know about the
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illegality and fraudulent activities of the principal defendants. The plaintiffs case
is that the gift deed was illegal fraudulent and the same did not confer any right,
title and interest over the defendant No. 1. It is their case that Pramila Debi
never executed the gift deed dated 13-07-1989 in favour of principal defendant
No. 1 and that Pramila Debi never appeared before the Sub-Registrar, Karimganj
for registration of the said document. The plaintiff further pleaded that Pramila
Debi never delivered possession of the gifted property, described in the schedule
to the plaint, in favour of the principal defendant No. 1 or in favour of any of her
representative and therefore, the gift deed was never acted upon. On the basis
of such pleadings the plaintiffs had instituted Title Suit No. 10/1996 in the court
of Asstt. District Judge [now Civil Judge (Sr. Div.)], Karimganj, inter-alia, praying
for a decree declaring that the registered deed of gift dated 13-07-1989 as
collusive, void and forged; for declaration of the right, title and interest of the
plaintiffs over the suit land; for permanent injunction and for other consequential
reliefs.
4.
The defendant No. 1 Fulu Rani Devi contested the suit by filing a written
statement, wherein she has denied the statements and averments made in the
plaint. Contesting defendant had categorically denied that the suit property was
the ejmali property of legal heirs of Jogendra Nath as well as Sachindra Nath as
has been claimed by the plaintiffs and on the contrary contended that the suit
land was the self acquired property of late Sachindra Nath. The defendant No. 1
contended that the suit was barred by limitation and that the same was not
maintainable in the eye of law. While denying that the gift deed was illegal and
collusive document the defendant claimed right, title and interest over the suit
land by virtue of the gift deed dated 13-07-1989, which according to her had
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been duly executed by Pramila Debi in accordance with the requirement of law.
The contesting defendants claimed to be in possession of the suit land pursuant
to the execution of the deed of gift which was accepted by her. However, in her
written statement the contesting defendant had admitted that during the
pendency of the title suit, in total violation of the status quo order dated 16-021996 passed by the civil court, the plaintiffs had forcefully entered possession of
the house situated over the suit land and thereby dispossess the defendant from
the suit land by using force.
5.
On the basis of pleadings of the parties the learned Trial Court had
framed as many as eight issues which are as follows:
Is there any cause of action for the suit?
Whether the Plaintiff has right, title and interest over the suit
land?
3.
Whether the description of the suit land is correctly furnished in
the Plaint?
4.
Whether the suit is barred by limitation?
5.
Whether the suit is barred by Hindu Law of Inheritance or under
the specific Relief Act?
6.
To what relief if any is the Plaintiff entitled?
In course of trial Issue No. 3 and 5 were struck off as these were not
necessary for decision in this case and two more issues were added.
Added Issues:
7.
Whether the gift deed No. 2111 dt. 13.7.89 is fabricated and
fraudulent?
8.
Whether the gift deed No. 2111 dt. 13.7.1989 acted upon?
1.
2.
6.
It may be mentioned herein that although the Trial Court had initially
framed issue No. 1 to 5 yet subsequently on a review of the said issues, issue
No. 3 and 5 were found to be redundant and hence struck off. Alternatively two
more issues in the form of additional issue No. 7 and 8 were framed by the Trial
Court. During the trial both the sides adduced oral as well as documentary
evidence. On the basis of materials available on record the learned Trial Court
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answered the additional issues in favour of the plaintiffs thereby holding that
although the gift deed had been validly executed and registered in accordance
with law yet the same was not acted upon by the parties since there was no
delivery of possession in respect of the gifted property in favour of the donee.
The learned Trial Court had also found the plaintiffs’ suit to be within the period
of limitation and accordingly the suit was decreed by the judgment and decree
dated 04-09-2003.
7.
Being highly aggrieved and dissatisfied with the judgment and decree
dated 04-09-2003 passed in Title Suit No. 10/1996 the defendant No. 1 as
appellant had preferred Title Appeal No. 12/2003 before the court of learned
District Judge, Karimganj. After hearing the learned counsel for the parties and
on re-appreciation of the materials available on record the learned First Appellate
Court had reversed the findings and conclusions of the Trial Court as regards
issue No. 7 and 8 thereby recording a finding that the plaintiff/ respondent had
failed to prove by adducing cogent evidence that the gift deed dated 13-07-1989
was a collusive and forged document. The learned First Appellate Court was of
the view that the defendant side had been able to prove the gift deed (Exhibit-E)
by examining its scribe as well as the contesting witnesses DW-2 so as to
establish that deed was valid in the eye of law and the same had been executed
in accordance with the provisions of law. On the basis of such finding the First
Appellate Court was of the opinion that the gift deed was valid in the eye of law
and therefore, plaintiffs suit was dismissed.
8.
Being aggrieved by the judgment and decree dated 02-07-2005 passed
by the learned First Appellate Court in Title Appeal No. 12/2003 the plaintiffs as
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appellants preferred the instant second appeal before this Court which was
admitted to be heard on the following substantial questions of law:
1.
Whether the lower Appellate Court was justified in reversing the
judgment and decree passed by the trial Court while deciding the Issue
No. 7 and 8 whereby it was held that “it is beyond scope to hold that the
Gift Deed was prepared and registered without delivery of possession” in
absence of any supporting material evidence of record regarding delivery
of possession or simply possession of the respondents?
9.
I have heard Mr. B.R. Dey, learned Sr. counsel appearing for the
appellant. Also heard Mr. N. Dhar, learned counsel appearing for the
respondents.
10.
Mr. B.R. Dey submits that regardless of the fact whether the plaintiffs
have succeeded in leading evidence to prove that the gift deed was a forged one,
in view of the mandate of Section 122 and 123 of the Transfer of Properties Act,
if a gift deed is not found to be executed in accordance with law or if acceptance
of the same by the donee is not proved then the same would not be a valid deed
of gift and therefore would not confer any title in respect of the gifted property
over the donee. He submits that in the instant case it was the burden of the
respondent/ defendant to prove and establish that there was due acceptance of
the gift made in her favour which she has failed to discharge. Mr. Dey further
submits that the donor Pramila Debi being an educated person, there is no
justifiable reason for her to put her thumb impression in the gift deed instead of
putting her signature. In the absence of any specific explanation as to why the
donor had to put her thumb impression on the gift deed, it gives rise to
suspicious circumstances, good enough to conclude that the gift deed is
fraudulent in nature.
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11.
Mr. Dey while fairly admitting that delivery of possession of the gifted
property is not a requirement of a valid gift, submits that the requirement of
proof of acceptance of a gift cannot be dispensed with under any circumstance.
To buttress his argument Mr. Dey places reliance on the decision of the Hon’ble
Apex Court reported in (1997) 2 SCC 636 , Baby Am m al Vs R ajan Asari .
12.
Per-contra, Mr. N. Dhar, learned counsel for the respondent/ defendant
submits that from the materials available on record it will be established beyond
doubt that the plaintiffs had failed to prove their case by leading cogent evidence
as has been rightly held by the First Appellate Court. On the contrary, the
defendant has succeeded in proving the gift deed (Exhibit-E) by adducing
sufficient evidence on record. In that view of the matter there is no scope for the
court below to grant any of the relief prayed for by the plaintiff and the suit has
been rightly dismissed by the court below.
13.
Mr. Dhar, further submits that acceptance of a gift is, no doubt
requirement in law but whether gift has been accepted by the donee or not
would depend upon the facts and circumstances of the case. By relying upon two
decisions reported in AIR 1975 Patna 140(1) in the case of M st. Sam rathi
Devi Vs. Parasuram Pandey & Ors. and AIR 1986 Kerala 110 in the case
of Vannathi Valappil Janaki & Ors. Vs. Puthiya Paurayil Paru & Ors. Mr.
Dhar submits that it has been held in the aforesaid decisions that even the
production of the deed of gift from the custody of the donee would amount to
sufficient proof of acceptance of the gift by the donee. In the instant case the
donee has not only claimed that she had accepted the gift during the life time of
the donor, but has also produce the gift deed from her custody and proved it by
adducing cogent evidence. Therefore, the substantial questions as framed by this
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Court does not raise for consideration by this Court. He, further submits that
there cannot be any issue at this stage as to the question of acceptance of the
gift by the donee since no such question has been raised before the Trial Court
or First Appellate Court and the appellant had even failed to urge any such
substantial question of law at the time of admission of the appeal.
14.
I have considered the rival submission made by and on behalf of the
parties and have also perused the judgment and decisions rendered by the
courts below. Both the learned Courts below have held that the gift deed had
been duly executed by Pramila Debi in favour of defendant but the Trial Court
decreed the suit of the plaintiff merely on the ground that there was no delivery
of possession of the property so as to prove that the gift was acted upon by the
parties. In the case of Renikuntla R ajam m a Vs K . Sarw anam m a reported in
(2014) 9 SCC 445 the Hon’ble Apex Court held that the transfer of possession
of the property was not sine qua non for the making of a valid gift under the
provisions of the Transfer of Properties Act, 1882. As such, the conclusion
recorded by the Trial Court leading to the decree passed in the suit on the face
of the record was not sustainable.
15.
On perusal of the materials available on record what can be seen is that
all the plaintiffs had claimed that the gift deed (Exhibit-E) was a forged and
collusive document yet they had failed to prove the same by leading evidence. In
the case of Abdul R ahim & Ors. Vs. Sk. Abdul Zabar & Ors. reported in
(2009) 6 SCC 160 the Hon’ble Apex Court has held that the burden to prove a
challenge to the validity of a registered gift deed is quite heavy as a registered
document carries with it a presumption that it was validly executed. It is for the
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party questioning the genuineness of the transaction to show that in law the
transaction was not valid.
16.
From a proper scrutiny of the materials available on record there can be
no doubt about the fact that the conclusion drawn by the learned First Appellate
Court to the effect that plaintiffs have failed to prove and establish their case by
leading evidence does not suffer from any lacuna. On the contrary, the
defendant side has not only produce the gift deed from her custody but has also
proved the same by calling the scribe as well as one attesting witness (DW-3)
who had come and identified the thumb impression of the executants. During
cross-examination the plaintiff side could not elicit anything so as to dislodge the
evidence adduced by the DW-3.
17.
Coming to the contention raised by Mr. B.R. Dey to the effect that the
defendant side had failed to prove the acceptance of the gift, it must be
mentioned herein that from a examination of the pleadings contained in the
plaint this Court could finds nothing in the pleadings to show that the plaintiffs
had made an averment that the defendant never accepted the gift. What they
have alleged is that there was no delivery of possession of the gift and as such
gift was not acted upon. During the stage of trial no issue was framed on the
question of acceptance of the gift and accordingly neither party had the occasion
to lead any evidence on this count. The question of acceptance of the gift being
a question in the realm of fact, the appellants cannot be allowed to raise the said
question for the first time in a second appeal when no such objection had been
raised by the appellant before the court below.
18.
In the case of M st. Sam rathi Devi (supra) , the Patna High Court after
discussing the various decisions rendered by the Privy Council as well as a Full
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Bench of the Bombay High Court has observed that where the donor of
immovable property handed over to the donee an instrument of gift duly
executed and attested, it would amount to the acceptance of the gift by the
donee and the doner had no power to revoke the gift even if the registration of
the instrument had not taken place.
19.
As has been mentioned hereinbefore, whether there has been due
acceptance of a gift by the donee or not would be a fact that can be gathered
from the attending facts and circumstances of the case. In the instant case the
donee has not only produce the gift deed from her custody but has also
contested the suit by leading evidence to prove and establish that the said deed
was accepted by her during the life time of the donor. During trial she had lead
evidence to that end. There is no justifiable ground that could be urged by the
plaintiff to show that donee might not have been interested in accepting the gift
at any point of time. Since the gift deed would confer right, title and interest
upon the donee in respect of valuable property it would be difficult to presume
that the donee would not accept the same in the absence of anything on the
contrary to suggest the same. In view of what has been discussed hereinbefore
this Court is of the opinion that the defendant has been able to prove and
establish the validity of the gift and acceptance by her. On the contrary, the
plaintiffs have failed to prove and establish their case so as to entitle them to a
decree in the suit.
20.
In view of the above, it is held that there is no illegality and infirmity in
the judgment and decree passed by the lower Appellate Court warranting
interference by this Court. The substantial questions of law framed by this Court
shall stand answered accordingly in favour of the respondent/ defendant and
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against the plaintiffs/ appellants. In the result, this second appeal stands
dismissed.
Having regard to the facts and circumstance of the case there would be
no order as to cost. Registry to send back the LCR.
JUDGE
GS
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