Chhedi Tanti v. Gangati Devi — 1984 DIGILAW 399 (PAT)

JUDGMENT : Satya Brata Sanyal, J. - This second appeal is by the plaintiffs. It arises out of a suit for declaration of title to 8 kathas 7 dhurs of land with a Khapara-posh house in Mohalla Bari-Ashiquepur, P. S. Jamalpur, District Monghyr, comprising holding no. 53. The plaintiff-appellants are the heirs and successor of the original plaintiff Most. Sanfo Devi. The additional prayer in the suit was for a declaration that the title acquired by the plaintiff by virtu of deed of gift dated 2.12.1969 (Ext. 1) was in no way affected by the deed of cancellation dated 2.3.1970 (Ext. 4) and the sale deed dated 3.3.1970 executed by defendant 2nd party (Ext. R) in favour of defendant Ist party is void and inoperative. The suit has been instituted with the aforesaid prayer on 11.6.1979. For the purpose of determination of the question raised in this second appeal, it is not necessary to state the facts in detail. Suffice it to say that one Nathoo Tanti executed a registered deed of gift (Ext. 1) on 2.12.1969 in favour of Most. Sanfo Devi in consideration of services rendered by her. She accepted the gift by putting her thumb impression in the deed itself. On 2.3.1970, Nathoo Tanti vide Ext. 4 cancelled the deed of gift and on the next day 3.3.1970 (Ext. R) Nathoo Tanti executed a sale deed in favour of the respondents. 2. At the time of admission of the appeal, the substantial question of law framed was whether the lower appellate court having held that the deed of gift in favour of the plaintiffs-appellants being otherwise good did it err in law in holding that possession must also have been proved by the appellants pursuant to the said gift in ORDER :to succeed in the suit? 3. The Court of appeal below found that the deed of gift was not obtained by practising fraud upon Nathoo Tanti. It further found that the deed of cancellation of the gift was not valid. It further found that the deed of gift was accepted by Sanfo Devi and in token of the same put her thumb mark thereupon. 3. The Court of appeal below found that the deed of gift was not obtained by practising fraud upon Nathoo Tanti. It further found that the deed of cancellation of the gift was not valid. It further found that the deed of gift was accepted by Sanfo Devi and in token of the same put her thumb mark thereupon. The appellant court, however, was of the view that mere acceptance by the donee will not make the gift effective and operative as the plaintiff did not give any possession of the gifted properly and, therefore, the gift could not be said to have been acted upon, as such Sanfo Devi acquired no title to the disputed property by virtue of the execution of the registered deed of gift by Nathoo Tanti. The appellate court by the impugned JUDGMENT : further held that the memo of appeal was barred by eight days' limitation and the cause for delay hi filing the appeal is neither satisfactory nor sufficient. 4. I will take up the question of limitation first. Mr. Sudhir Chandra Ghose, learned counsel appearing for the appellants, contended that the learned District Judge, by his ORDER :dated 26.5.1977, condoned the delay in filing the appeal and after having so condoned admitted the same. Notices for admission of the appeal were issued and the matter was ORDER :ed to be put up on 4.6.1977 and the defendants appeared on 5.10.77. The condonation petition explaining the delay of eight days was supported by an affidavit. The facts stated in the affidavit was at no stage controverted during the entire career of the case. It was, therefore, submitted that the Additional District Judge erred in law in recalling the ORDER :of condonation passed on 26.5.1977 particularly in view of no evidence adduced before him controverting the explanation furnished in the condonation petition supported by an affidavit which found favour with the District Judge. Mr. Sheo Kumar Singh, learned counsel appearing for the respondents, on the other hand contended that the respondents are entitled in law to re-open and assail an ex-parte ORDER :of condonation passed and the Court was wholly justified to consider the matter on appearance of the respondents. He relied upon a Privy Council decision in support of his aforesaid stand. Mr. Sheo Kumar Singh, learned counsel appearing for the respondents, on the other hand contended that the respondents are entitled in law to re-open and assail an ex-parte ORDER :of condonation passed and the Court was wholly justified to consider the matter on appearance of the respondents. He relied upon a Privy Council decision in support of his aforesaid stand. He further contended that the lower appellate court having reconsidered the matter and having exercised its judicial discretion, this Court should refrain from taking a contrary view and/or interfering with the said ORDER :while exercising jurisdiction under section 100 of the Code of Civil Procedure (1969 B.L.J.R. 890 - T. Koeri v. J. Koeri). 5. There is no quarrel on principle nay it is well settled where an appeal is filed beyond the period of limitation, without notice to the opposite party, and the appeal is admitted after excusing the delay under section 5 of the Limitation Act, it must be regarded as a tacit term of the ORDER :admitting the appeal that though unqualified in expression it should be open to reconsideration at the bearing at the instance of the party prejudicially affected and at the hearing the Court has jurisdiction to reconsider the sufficiency of the cause shown, and to dismiss the appeal as time barred. Sir Lawrence Jenkins, therefore, observed that while the procedure aforesaid may have the sanction of usage, it is manifestly open to grave objection. Since that may lead to a needless expenditure of money and/or an unprofitable waste of time when at later date the Court is called upon to decide the question of delay afresh. It is, therefore, desirable that the Courts must follow the practice which will secure at the stage of admission, the final determination (after due notice to all parties) of any question of limitation affecting the competence of the appeal (See Krishnasami v. Ramasami A.I.R. 1917 Privy Council 179). I do not propose to add case laws in support of the observations of Sir Lawrence Jenkins of the aforesaid principle. It is also well settled by long string of practice of authorities that, where Court, after considering all the circumstances of the case, has come to the conclusion that sufficient cause has or has not been established in filing the appeal within time, the High Court in second appeal will be loath in interfering with the said decision. It is also well settled by long string of practice of authorities that, where Court, after considering all the circumstances of the case, has come to the conclusion that sufficient cause has or has not been established in filing the appeal within time, the High Court in second appeal will be loath in interfering with the said decision. 6. The aforesaid two principles, however, do not resolve the question posed before me. Admittedly no evidence whatsoever has been furnished by the respondents assailing the statement explaining the delay on affidavit filed by the appellants. In short, there is no contrary evidence to the facts averred in the condonation application. The illness stated in the condonation petition for causing delay in filing the appeal which was supported by medical certificate is uncontroverted. It is further admitted that immediately on appearance in the case the respondents did not file any application challenging and/or questioning the ORDER :of condonation. This matter was taken up when the appeal itself was being heard on merit, by transferee Court. The questions, therefore, arise whether the lower appellate court was justified in law in rejecting the uncontroverted explanation furnished by the appellants which was accepted by the learned District Judge while admitting the appeal? A further question, arise can a person be allowed to wait upon their rights while the other party incurs expenses in a case of this kind when it was open to the respondents to move the Court setting aside admission immediately on their appearance after service of notice of admission' upon them and file an affidavit controverting the material allegations in those on which the delay had been excused earlier? 7. In my considered opinion, in a case where the Court has condoned limitation ex parte, the party prejudiced should on service of notice of appeal and on their appearance without any inordinate delay file affidavit controverting the material allegation in those on which delay has been excused by the Court and the Court on hearing the parties and/or allowing opportunities to lead evidence to decide the question finally. A decision dismissing an appeal on the ground of limitation is an appealable one. A decision dismissing an appeal on the ground of limitation is an appealable one. Inordinate delay by way of raising preliminary objection in ORDER :to reopen the condonation matter at the time when the appeal is taken up on merit, allowing the other party to incur expenses cannot be allowed; it would not be entertainable on the ground of being too late. This view of mine is supported by a Division Bench decision of a case reported in A.I.R. 1923 Madras 82 (Murugappa Naicker v. Thayammal) as well as in the case of Krishnasami v. Ramasami (supra). None of these two conditions are fulfilled in the instant case. There was no material whatsoever before the lower appellate court to recall the ORDER :of condonation beyond what was available when the ex-parte ORDER :condoning the delay was passed. I am, therefore, of the opinion that the decision recalling the ORDER :of condonation without there being any evidence to the contrary is completely vitiated in law. The learned lower appellate Court had no material before it to disbelieve the medical certificate which explained the delay of about eight days in filing the appeal before it. The ORDER :recalling condonation of delay is based on no evidence and, therefore, the same is fit to be set aside. A decision recalling condonation of delay without any evidence brought on record by the contesting party, but on the same material at the time of hearing of the appeal on merit, without affording opportunity to the appellant to substantiate it by leading evidence would be an arbitrary exercise of jurisdiction not vested in law and, therefore, T. Koeri's case (supra) is of no assistance to the learned counsel of the respondent. A single Judge later decision of Madras High Court reported in A.I.R. 1936 M 600 (Rajamal v. Parthasarathi) has taken a view somewhat contrary, to that Courts earlier division bench, decision in the case of Murugappa Naicker (supra), which, with great respect have to be ignored. Further, I do not feel persuaded to subscribe to the view expressed in the said single Judge decision. To me the reason assigned in Murugappa's case (supra) is in line with the view expressed by Sir Lawrence Jenkins. 8. Further, I do not feel persuaded to subscribe to the view expressed in the said single Judge decision. To me the reason assigned in Murugappa's case (supra) is in line with the view expressed by Sir Lawrence Jenkins. 8. Coming to the question as to the validity of the deed of gift, I think, the Court below has completely erred in law in deciding the said question, Section 122 of the Transfer of Property Act defines gift. The ingredients of valid gift are of its being voluntary, without consideration and the same must he accepted by the donee and the said acceptance must be in the life time of the donor. I failed to appreciate how the Court of appeal below injected the concept of delivery of possession for a valid and operative gift. It is true that under the Mohammedan Law a deed of gift becomes valid when there is a declaration of gift by the donor, and acceptance of the gift expressed or implied by or on behalf of the donee, delivery of possession of the subject of the gift by the donor to the donee. Only when these conditions are, complied with, the gift is complete under the Mohammedan Law (See Md. Abdul Ghani v. Fakir Jahan Begum-49 Indian Appeal 195). Under Mohammedan Law, it is essential to the validity of a gift that there should be a delivery of such possession, as the subject of the gift is susceptible to at the time of declaration and acceptance. The taking of possession of the subject-matter of the gift by the donee, either actually or constructively, is necessary to complete a gift. Possession taken at a subsequent date is also sufficient if he was taken with donor's consent. The lower appellate Court, in the instant case, seem to have been obsessed with the principles of Mohammedan Law while dealing with the case of a gift amongst Hindus. The law applicable in the instant case is as laid down in section 122 of the Transfer of Property Act. Under general law one of the factors showing acceptance is, handing over of the instrument of gift duly executed, attested and registered to the donee. The production of the deed of gift by the donee will be a strong circumstance of delivery and acceptance of the deed of gift (See A.I.R. 1927 Privy Council 42 and A.I.R. 1975 Patna, 140). Under general law one of the factors showing acceptance is, handing over of the instrument of gift duly executed, attested and registered to the donee. The production of the deed of gift by the donee will be a strong circumstance of delivery and acceptance of the deed of gift (See A.I.R. 1927 Privy Council 42 and A.I.R. 1975 Patna, 140). The acceptance of the deed of gift during the life time of the donor can also be inferred if the donee in token of acceptance, has signed the deed of gift. In the instant case, Sanfo Devi has accepted the gift and in token thereof put her thumb mark on the same prior to its registration. The registered instrument has also been produced by her from her custody which clearly signify acceptance of the deed of gift by the predecessor of the plaintiff. I am, therefore, of the opinion that the deed of gift was valid and operative. The lower appellate Court misdirected itself in law in holding that the deed of gift was invalid as it was not followed by delivery of possession. 9. Mr. Sheo Kumar Singh, learned counsel appearing for the respondents, lastly raised the question that the instrument of gift was not duly attested by any witness, as required in Jaw. This point, however, has not been taken in the pleading. He argued that a mere perusal of the deed of gift would signify that the witnesses, who have signed the document do not say that they are putting their signatures by way of an attesting witness. It is, no doubt, true that a deed of gift must be attested by two witnesses and they must affix signature in presence of the executant. This is ordinary a mode of attestation. I have examined the evidence of P. Ws. 5 and 6 who are witnesses to the document and they have stated, in their evidence, that they have signed the document after the execution of the deed of gift by Nathoo and the deed having been accepted by the donee. The statement made by them is, therefore, as required under section 3 of the Transfer of Property Act. Even though the question was not raised in pleading still I perused the evidence of P. Ws. The statement made by them is, therefore, as required under section 3 of the Transfer of Property Act. Even though the question was not raised in pleading still I perused the evidence of P. Ws. 5 and 6 and I am satisfied that the document has been duly attested as required under section 123 of the Transfer of Property Act. 10. An attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document. It is not at all necessary that they should be so described in the instrument as an attesting witness. Such labelling is not the requirement of any statute. 11. In the result, the appeal is allowed and the JUDGMENT : and decree of the court below is set aside. But there will be no ORDER :as to costs.