Suraj Bhan v. Padam Chaud — 1978 DIGILAW 120 (ALL)

JUDGMENT H.N. Seth, J. - This First Appeal From Order filed by Sri Suraj Bhan is directed against the order dated 11th April, 1977 passed by 1st Additional Civil Judge, Agra by which he allowed the application under O. 47, R. 1 and Section 151 C. P. C., and directed the review of his judgment dated 23-12-1976. 2. Plaintiff, Padam Chand, is the son of defendant Suraj Bhan. He filed Suit No. 410 of 1975 in. the court of the 1st Additional Civil Judge, Agra, alleging that I he property No. 1 /82 situate in Judge Sahav Ki-Gali, Pipal Mandi, Agra, was exclusively owned and possessed by his grandfather Munga Ram. Munga Ram gave this property to bis wife Smt. Naraini Devi through a gift deed dated 29-1-1942 and thereafter Smt. Naraini Devi remained in proprietary possession of the said property. Subsequently Smt. Naraini Devi executed a will dated 24-6-1965 bequeathing the said property in favour of the plaintiff. 3. Smt. Naraini Devi died in the year 1959 and thereafter the plaintiff became the absolute owner of the property. According to the plaintiff, the defendant wrongly started claiming ownership rights in the property, and compelled him to file the present suit for a declaration that he was exclusive owner of the property in dispute. 4. The defendant contested the suit on a number of grounds. He claimed that the property in dispute was not the self-acquired and exclusive property of Munga Ram. It belonged to the joint Hindu family consisting oi Munga Ram, and the defendant who was Munga Rams son. Accordingly Munga Ram, had no right or authority to gift the property to Smt. Naraini Devi who never was in its possession as its proprietor. In the circumstances, Smt. Naraini Devi neither had any right to execute a will in respect of the property nor did she in fact execute any will in favour of the plaintiff. 5. On the pleadings of the parties the trial Court inter alia framed the following issues : - 1. Whether the property in suit was the exclusive property of Sri Munga Ram or it was the joint Hindu family property. If so its effect? 2. Whether Sri Munga Ram had any authority to gift the property to Smt. Naraini Devi ? 3. Whether Smt. Naraini Devi executed the will dated 24-6-1966 in favour of the plaintiff? If so, its effect? 6. If so its effect? 2. Whether Sri Munga Ram had any authority to gift the property to Smt. Naraini Devi ? 3. Whether Smt. Naraini Devi executed the will dated 24-6-1966 in favour of the plaintiff? If so, its effect? 6. On first of aforementioned issues the trial Court recorded a finding that the house in dispute was not a joint Hindu family property. It was self-acquired and exclusive property of Munga Ram and he had full right to deal with it and to transfer it by way of gift the trial Court took up the next two issues together and addressed itself to the question as to whether Munga Ram actually gifted the disputed property to his wife Smt. Naraini Devi vide the registered gift deed, certified copy of which had been filed as Ext. 2 in the case. It observed that the plaintiff neither examined the attesting witnesses of the will nor did he lead evidence to show that both of them were dead. He even did not summon the scribe of the said deed. The plaintiff, therefore, had failed to prove due execution of the gift. It repelled the argument advanced on behalf of the plaintiff that as he had filed a certified copy of the gift deed which was more than 20 years old. It was in view of the provisions contained in Section 90 (2) of the Indian Evidence Act to prove its due execution. In Such circumstances, the law raised a presumption that the document had been executed and attested in due course by the person executing and signing it and that it had been attested by the attesting witnesses. As in the opinion of the trial Court it was not proved that Smt. Naraini Devi acquired any title to the property under the said gift dead, execution of the will by her was of no consequence and decided the two issues accordingly. 7. In the result, the trial court found that the plaintiff was not entitled to the relief claimed by him and dismissed the suit by its judgment dated 23-12-1976. 8. 7. In the result, the trial court found that the plaintiff was not entitled to the relief claimed by him and dismissed the suit by its judgment dated 23-12-1976. 8. It is thus evident that the plaintiffs suit has been dismissed primarily on the ground that although he filed the certified copy of the registered gift deed, said to have been executed by Munga Ram in favour oi Smt. Naraini Devi, lie did not adduced any evidence to prove its due execution. 9. On 20-1-1977, the plaintiff moved an application under O. 47, R. 1 and Section 151 C. P. C., claiming a review of the judgment inter alia on the following grounds: 1 . Because the court inadvertently did not give effect to O. 8, Rr. 3 and 5, C. P. C. there was no specific denial of the execution of the gift deed dated 20-1-1942 and there was no issue framed by the court on this fact. 2. Because the only issue relating to deed of gilt bearing on its validity, the court erred in going into question of want of its formal proof and dismissing the entire suit thereon. The above is a mistake apparent on the face of the record. 3. Because having exhibited the certified copy of the deed of gift on date of issue, the court committed an error apparent on the face of the record by holding that the said document was not proved and without giving a chance to plaintiff to meet this changed attitude, the court committed an error apparent on face of record by dismissing the entire suit for want of formal proof of the document. 10. The trial court observed that in his written statement the defendant, while denying the allegations made in Para No. 2 of the plaint, merely stated that Munga Ram had no right, title or authority to gift the property. In the additional places he again questioned the authority of Sri Munga Ram to gift the property. He nowhere raised the plea that the gift deed in question had not been executed by Munga Ram. No issue on the question as to whether or not Munga Ram executed the gift deed was framed. The gift deed had been exhibited and admitted in evidence. He nowhere raised the plea that the gift deed in question had not been executed by Munga Ram. No issue on the question as to whether or not Munga Ram executed the gift deed was framed. The gift deed had been exhibited and admitted in evidence. In this view of the matter, the judgment dismissing the plaintiffs suit on the ground that plaintiff did not produce evidence to provo due execution of the gift deed said to have been executed by Munga Ram, suffered from an error apparent on the face of the record. He also held that the fact that plaintiffs suit was dismissed on the ground that he tailed to prove the gift deed set up by him, without framing a specific issue on the question, provided, sufficient reason for the court to exercise its power to review the judgment. In the result, he allowed the application and decided to review the judgment but made it clear that the same was to be reviewed only to the extent of gift deed Ex. A-2 and necessary' consequences thereof. Being aggrieved the defendant has come up in appeal before this Court. 11. Learned counsel appearing for the defendant appellant urged that with a view to claim title to the property in dispute the plaintiff made the following allegations in paragraph 2 of the plaint: - "That Sri Munga Ram gifted the said property to his wife Smt. Naraini Devi by gift deed dated 29-1-1942." The defendant denied the said averments in paragraph 2 of the written statement in following words : - That para. 2 of the plaint is not admitted and is denied. However, it is submitted that the said Sri Munga Ram had no right, title or authority to gift the property to Smt, Naraini Devi." This according to him amounted to specifically denying the averment that a gift deed had been executed by Munga Ram. Accordingly it was absolutely necessary for the plaintiff to prove due execution of the gilt deed by Munga Ram before he could expect to succeed in the suit. Accordingly it was absolutely necessary for the plaintiff to prove due execution of the gilt deed by Munga Ram before he could expect to succeed in the suit. As observed by the trial court, the plaintiff did not adduce any evidence whatsoever to prove this fact and instead he relied upon the provisions of Section 90 (2) of the Evidence Act and contended that under the law it was not necessary for him to adduce evidence for proving due execution and attestation of the gift deed set up by him. The legal plea raised by the plaintiff was fully considered by the trial court. As the burden of proving due execution of the gift deed was on the plaintiff and he deliberately did not produce any evidence to prove the same, it cannot be said that the judgment of the trial court suffered from an apparent error which can be corrected by means of an application for review. He urged that even if the trial court did not correctly interpret the scope and ambit of Section 90 (2) of the Evidence Act; the remedy of the plaintiff is by way of an appeal against the decree and not by approaching the court for the review of its judgment. 12. Learned counsel appearing for the plaintiff respondent, however, contended that the averments made in para. 2 of the written statement cannot be construed as containing specific denial of the averment made in the plaint that Sri Munga Ram had executed the gift deed and had gifted the property to Smt. Naraini Devi. The defendant merely clarified the denial made by him in Para. 2 oi the written statement by saying that Munga Ram had no right, title or authority to gift the property to his wife Smt. Naraini Devi. By making the averments in para. 2 of the written statement, the defendant did not intend to convey that the gift deed in question had not been executed by Sri Munga Ram. The additional pleas raised by the defendant also show that the only case taken by the defendant in this respect was that as the property in dispute was not the self-acquired property of Munga Ram and it was the property belonging to the Joint Hindu Family, he had no authority to gift it to his wife. The additional pleas raised by the defendant also show that the only case taken by the defendant in this respect was that as the property in dispute was not the self-acquired property of Munga Ram and it was the property belonging to the Joint Hindu Family, he had no authority to gift it to his wife. Since there was no specific denial of the averment made in para 2 of the plaint, to the effect that Munga Ram had executed the gift deed in favour of his wife Smt. Naraini Devi would he deemed to have been admitted and the plaintiff was not required to formally prove it. 13. Having carefully considered the arguments raised by the learned counsel for the parties, we are unable to accept the argument that Para. 2 of the written statement did not contain a denial of the allegation that Munga Ram had executed a gift deed in favour of Smt. Naraini Devi. Only fact mentioned in paragraph 2 of the plaint was that Sri Munga Ram had gifted the said property to his wife Sint. Naraini Devi by means of a gift deed D/- 20-1-1942. When in para. 2 of the written statement the defendant stated that para. 2 of the plaint is not admitted and is denied, it could only mean that the averment that Munga Ram had gifted the property to his wife Smt. Naraini Devi by means of a gilt deed dated 29-1-1942 was being contested. Further statement made in Para. 2 of the written statement to the effect, "however it is submitted that the said Munga Ram had no right, title or authority to execute the gift deed", meant that even if the gift deed had been, executed by Sri Munga Ram as claimed by the plaintiff, the same could not convey any title to Smt. Naraini Devi. In the circumstances, no question of the allegation made in the plaint that Munga Ram had gifted the property to Smt. Naraini Devi, being admitted by the defendant arises and we agree with the learned counsel for the defendant appellant that before the plaintiff can succeed in the suit, he has to prove it in accordance with law that the gift deed in question had been executed by Sri Munga Ram. 14. 14. While dealing with this question, we cannot help observing that even though, technically paragraph 2 of the written statement contains a denial of the fact that Sri Munga Ram had executed a gift deed in favour of Smt. Naraini Devi. The written statement had been so drafted that the plaintiff could be misled into believing that the case of the defendant was not that the gilt deed in question had not been executed by Munga Ram hut it merely was that even though the gift deed might have been executed by Sri Munga Ram, Munga Ram did not have any right, title or authority to execute the same. This becomes evident from the fact that even while framing an issue with regard to the authority of Sri Munga Ram to execute the gift deed in favour of Smt. Naraini Devi (issue No. 5) the trial court did not frame any issue on the question as to whether Sri Munga Ram in fact executed a gift deed as claimed by the plaintiff. 15. According to O. 14, R. 1, issue arises when any material proposition of fact or law is asserted by one party and denied by the other. In the instant case, the fact that Sri Munga Ram executed the gilt deed in favour of Smt, Naraini Devi was a material fact which had been asserted in Para. 2 of the plaint and it had been denied by the defendant in para. 2 of the written statement. Accordingly an issue as contemplated by O. 14, R. 1, C. P. C. did arise and, before proceeding with the trial, the trial court should have framed a specific issue on the point. Object of framing issue is to prominently bring out the nature of controversy between the parties, so that the party on whom the burden lies may adduce evidence to substantiate its case. The Code of Civil Procedure, therefore, requires the trial Court to look into the plaint, written statement and other material and to find out the points in controversy between the parties on which decision of the court depends and to put them in the form of issues. If an issue which arises in a case is not framed the concerned party is likely to be misled into not producing evidence for proving relevant facts. If an issue which arises in a case is not framed the concerned party is likely to be misled into not producing evidence for proving relevant facts. The fact that despite the controversy having been raised in the written statement no issue on the point was framed, indicates that neither the parties to the suit were, nor the trial court was conscious of the fact that there was any such controversy in that regard which had to be resolved on the basis of evidence to he produced by a party. It is true that there is authority for the proposition that non-framing of an issue in eases where the parties are aware of the controversy and have adduced evidence in support of their respective cases does not vitiate the trial. However, in the instant case, the judgment under review clearly shows that the plaintiff did not adduce any evidence to prove execution of the gift deed by Sri Munga Ram. This fact by itself indicates that even though the averments made in paragraph 2 of the plaint had been denied in Para. 2 of the written statement, the plaintiff was, probably not aware of the controversy and that is why he did not produce any evidence to prove the gift deed. 16. Learned counsel for the appellant urged that the controversy with regard to execution of the gilt deed was actually covered by issue No. 6 framed in the case. We are unable to accept this submission. Issue No. 6 does not relate to the execution of the gilt deed by Sri Munga Ram. It merely relates to the will said to have been executed by Smt, Naraini Devi on 24-6-1975 in favour of the plaintiff, and has been framed thus : - "Whether Smt. Naraini Devi executed the will dated 24-6-75 in favour of the plaintiff? If so its effect?" 17. Learned counsel for the appellant urged that while determining the effect oi will as mentioned in issue No. 6. the controversy with regard to execution of the gift deed in favour of Smt. Naraini Devi was also involved. If execution of the gift deed by Sri Munga Ram is not established, clearly the will executed by Smt. Naraini Devi would be ineffective. We do not find any merit in this submission. the controversy with regard to execution of the gift deed in favour of Smt. Naraini Devi was also involved. If execution of the gift deed by Sri Munga Ram is not established, clearly the will executed by Smt. Naraini Devi would be ineffective. We do not find any merit in this submission. Issues are framed in order to directly bringing out the material proposition on which the parties are at variance. They are not intended to highlight a controversy between the parties in an indirect manner. On the face of it issue No. 6 pertains to the will and has no relevance to the controversy with regard to the gift deed said to have been executed by Munga Ram in favour of Smt. Naraini Devi. 18. We are accordingly of opinion that non-framing of the issues with regard to execution of the gift deed by Munga Ram prevented the plaintiff from adducing the evidence with regard to its execution. 19. Learned counsel for the appellant, next contended that a perusal of the judgment of the trial court clearly shows that the plaintiff did not want to produce any evidence with regard to due execution of the gift deed, instead he relied on the provisions of Section 90 (2) of the Evidence Act and contended that it was not necessary for him to adduce evidence regarding execution and attestation of the gift deed. He contended that as the plaintiff was aware of the controversy, and took up the stand that it was not necessary for him to prove execution and attestation of the gift deed. It is true that the submission made by him was not accepted by the trial Court, but then as he was aware of the controversy and if he did not produce evidence in this regard, none else but he himself is to be blamed for it. In the circumstances he cannot now claim that he was in any way misled by non-framing of the issues so as to claim a review of the judgment. We are unable to accept this submission. The fact remains that no issue on the point was framed and the plaintiff did not adduce any evidence to prove due execution of the gift deed by Munga Ram. We are unable to accept this submission. The fact remains that no issue on the point was framed and the plaintiff did not adduce any evidence to prove due execution of the gift deed by Munga Ram. Merely because when at the time of the arguments, he was confronted with the position that the gift deed in question had not been proved, he tried to meet the situation by raising an argument on the basis of Section 90 (2) of the Evidence Act, it does not mean that he would not have adduced evidence for proving due execution of the gift deed if a proper issue on the point had been framed. 20. We, accordingly, find that the trial court decided the suit on the basis that the plaintiff did not prove execution of the gift deed even though the issue in respect of this controversy arising in the case had not been framed. In the case of Moran Mar Basselios Catholicos v. Most. Rev. Mar Poulose Athanasius. ( AIR 1954 SC 526 ), it was observed by the Supreme Court in Para. 39 thus: - "To decide against a party on matters which do not come within the issues on which the parties went to trial clearly amounts to an error apparent on the face of the record." 21. In our opinion, the fact that the court below decided the suit on the basis that plaintiff had failed to produce any evidence in support of a material proposition of fact which had been controverted by the defendant, without framing an issue on the point provides sufficient reason for the court to review its judgment. 22. Before parting with the case we may also observe that the learned counsel appearing for the plaintiff respondent also argued that there was an error apparent on the face of the record in the judgment of the court below also for the reason that as a certified copy of the gift deed had been exhibited without objection by the other sides, the law did not require its execution to be proved any further. Moreover, under Section 90 (2) of the Indian Evidence Act a presumption had to be raised that the certified copy of the gift deed was duly executed and attested. Moreover, under Section 90 (2) of the Indian Evidence Act a presumption had to be raised that the certified copy of the gift deed was duly executed and attested. The judgment of the trial court that notwithstanding the provision of Section 90 (2) of the Indian Evidence Act and the fact that the gift deed had been exhibited, its due execution had still to be proved, suffered from an apparent prior of law and deserved- to be reviewed on this account as well. However, in the view which we have already taken above and according to which the trial court was justified in reopening proceedings by way of review, it is not necessary for us to go' into this question. 23. In the result, the appeal is dismissed. Parties are directed to bear their own costs.