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CASE NO.: Appeal (civil) 14913-14  of  1996

PETITIONER: SURENDRA KUMAR

       Vs.

RESPONDENT: NATHULAL & ANR.

DATE OF JUDGMENT:       02/05/2001

BENCH: D.P. Mohapatra & Brijesh Kumar

JUDGMENT:

D.P.MOHAPATRA, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   Smt.   Chand  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. Thereafter  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. Nathulal is in possession of the suit property.

   When  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. Thereafter 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.

   The  Trial  Court,  on perusal of the pleadings  of  the parties, framed ten issues of which issue Nos.2, 7 and 9 are

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relevant  for  the purpose of the present  proceeding.   The said issues are to the effect that :

   2.  Whether the plaintiff has got the right to file the suit?

   7.  Whether the gift-deed is collusive?

   9.   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 :

   1.   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 Court.

   2.  The plaintiff shall also pay Rs.1300/- to Shri Sugan Chand, defendant No.4.

   The  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.

               The 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:

   Heard  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.

   I do not find any question of law on which the decisions of the lower Courts require inference.

   Therefore  both  the  aforesaid  appeals  being  without merits are hereby dismissed.

   Hence, 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.

   Per  contra,  Shri  Ajay   Chaudhary,  learned   counsel

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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.

   We  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. Accepting 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.

   On  a  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.

   The  High  Court, as noted earlier, summarily  dismissed the  second appeal holding that the case did not involve any substantial question of law.

   On a 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.

   In  the  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

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support of his case.

   Section  123  of  the  Transfer of  Property  Act,  1882 provides :

   123.  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.

   In  the  present case there exists a registered deed  of gift  signed  by  the donor and attested by  two  witnesses. Therefore, 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 that :

   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.

   The  proviso  to the section, which is relevant for  the present purpose, reads:

   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, 1908 (16 of  1908),  unless  its execution by the person by  whom  it purports to have been executed is specifically denied.

                       (Emphasis 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.

   The  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

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and  the  judgment and decree passed by the trial  Court  is restored.