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1990 DIGILAW 134 (HP)

BHAGAT RAM & ANOTHER v. BASANT RAM

1990-12-03

KAMLESH SHARMA

body1990
JUDGMENT Kamlesh Sharma, J.—This is a Regular Second Appeal under old section 100 of the Code of Civil Procedure against the judgment and decree dated 8-6-1979 of District Judge, Hamirpur and Una Districts at Hamirpur whereby he has confirmed the decree and judgment dated 29-3-1976 of Senior Sub Judge, Hamirpur district, Hamirpur and dismissed the suit of the appellants, S/Sh. Bhagat Ram and Prem Chand. 2. S/Sh. Bhagat Ram and Prem Chand had filed a civil suit against the defendant-respondent, Sh Basant Ram, for declaration that they along-with defendant-respondent, Sh. Sant Ram, were owners in possession of the suit land which was bequeathed to them by way of registered will dated 25-3-1958 by the previous owner Sh. Tulsi Ram. They also prayed for a decree of permanent injunction on the ground that Sh. Basant Ram was interfering in their possession claiming that the land in question was donated to him by way of gift deed made by Sh. Tulsi Ram. 3. Sh. Basant Ram resisted the suit and claimed himself as owner in possession of the suit land by virtue of gift-deed dated 24-9-1965 registered , on 25-9-1965. Admittedly Sh. Tulsi Ram died on 21-10-1966. The trial court held both the will as well as the gift-deed validly executed and dismissed the suit on the ground that as Sh. Basant Ram became owner in possession of the suit land by virtue of the gift-deed dated 24-9-1965, during the life time of Sh. Tulsi Ram, the will dated 25-3-1958 became infructuous. The first appellate court confirmed the findings of the trial court that the gift deed dated 24-9-1965 was validly executed and dismissed the appeal of S/Sh. Bhagat Ram and Prem Chand. 4. I have heard the learned counsel for the parties and gone through the record of lower courts. Sh. Anand Sharma appearing for S/Sh. Bhagat Ram and Prem Chand has urged that the important document, that is, the Out Patient Department Ticket dated 15-12-1964, Mark ‘A’ in respect of the physical and mental condition of Sh. Tulsi Ram was not considered by the District Judge to come to the finding that Sh. Tulsi Ram was physically and mentally fit to execute the gift deed. Bhagat Ram and Prem Chand has urged that the important document, that is, the Out Patient Department Ticket dated 15-12-1964, Mark ‘A’ in respect of the physical and mental condition of Sh. Tulsi Ram was not considered by the District Judge to come to the finding that Sh. Tulsi Ram was physically and mentally fit to execute the gift deed. It is correct that the District Judge, while confirming the findings of the trial court, has not referred to this document though the trial court did take into consideration this document and held that it did not reveal the illness of the patient, Sh. Tulsi Ram. After examining this document, I find that the interpretation given to it by the trial court is correct. The only thing stated in this document is that he patient, Sh. Tulsi Ram, was preferred to Room No. 1 for admission if needed. Mr. Anand Sharma further submits that the District Judge has also not taken into account the statement of a very important witnesses, Sh. Parma Nand (PW. 5) who being a Vaid had treated Sh. Tulsi Ram and had deposed about his physical and mental condition. I have gone through the statement of Sh. Parma Nand and in my opinion, even if his statement is believed that Sh. Tulsi Ram had become deaf and dumb, it was during the period from 18-7-1964 to 8-12-1964. Sh. Parma Nand has not stated that the mental faculty of Sh. Tulsi Ram was impaired in any manner to make him unfit to execute the gift deed. Moreover, the gift deed was executed on 24-9-1965, that is, after about ten months and there is nothing on the record to show that his physical condition continued to be the same till the date of execution of the gift-deed. The trial court had discussed this witness at length and had rejected his testimony, in my opinion, rightly. 5. From the pleadings and evidence produced by S/Sh. Bhagat Ram and Prem Chand, it is clear that their only objection to the gift-deed was that Sh. Tulsi Ram was not physically and mentally fit when he executed this deed on 24-9-1965. The courts below have discussed the evidence produced by Sh. Basant Ram to prove that the gift-deed was written at the instance of Sh. Tulsi Ram by Sh. Tulsi Ram was not physically and mentally fit when he executed this deed on 24-9-1965. The courts below have discussed the evidence produced by Sh. Basant Ram to prove that the gift-deed was written at the instance of Sh. Tulsi Ram by Sh. Roshan Lal (D. W.-3), a professional Petition Writer who had read over and explained its contents to Sh. Tulsi Ram before he put his thumb-mark thereon. The attesting witnesses, S/Sh. Utho Ram (D.W.-2) and Jashwant Rai (D.W.-4) had also deposed that Sh. Tulsi Ram was in a fit state of mind when he put his thumb mark on the gift-deed in their presence. They had also signed after Sh Tulsi Ram had admitted the contents of the gift-deed and put his thumb mark thereon. Above all, the presumption attached to the endorsement appended by the Sub Registrar on the gift-deed that Sh. Tulsi Ram appeared before him and he made oral enquiry from him whether he admitted the contents of the gift-deed is also not rebutted. 6. A Division Bench of this Court in Kanwarani Madna Wati and another v. Raghunath Singh and others, AIR 1976 HP 41, after considering Sennimalai Goundan v. Sellappa Goundan AIR 1929 PC 81, Mst Jhunkaribahu alias Katrawali v. Phoolchand alias Manikchand Chhotelal Jai, AIR 1958 MP 261 and Dinesh Chandra Guha v. Satchindananda Mukharji, AIR 1972 Orissa 235, has held as under:— "Under section 60 (2) of the Registration Act the certificate given by the registering officer shall be admissible for the purpose of proving that the document has been duly registered in the manner provided by this Act and that the facts mentioned in the endorsements referred to in section 59 have occurred as therein mentioned. Therefore, there is a presumption which attaches to the correctness of the endorsement made on the document by the registering officer……..." 7. Sh. Anand Sharma has cited Balakidas Eardas Mahesari v. Sk. Chotu Paikan, AIR (29) 1942 Nagpur 84, for the proposition that certificate of registration may be considered for the purpose of corroboration but it cannot serve as substantive evidence of execution. In the present case, there is substantive evidence of execution of the document which stands duly corroborated by the certificate of registration. 8. In view of these findings, I hold that S/Sh. Bhagat Ram and Prem Chand have failed to prove that Sh. In the present case, there is substantive evidence of execution of the document which stands duly corroborated by the certificate of registration. 8. In view of these findings, I hold that S/Sh. Bhagat Ram and Prem Chand have failed to prove that Sh. Tulsi Ram was not in a fit physical and mental condition to execute the gift-deed. I confirm the findings of the courts below in this regard. 9. In the result, this appeal fails and is dismissed with costs. Appeal dismissed