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Madhya Pradesh High Court · body

2011 DIGILAW 1077 (MP)

Ramusingh v. Bandibai

2011-09-13

A.K.SHRIVASTAVA

body2011
JUDGMENT 1. This is defendants’ second appeal, who have lost from both the Courts below. The suit of the plaintiffs has been decreed by learned trial Court and the first appeal which was preferred has been dismissed by the impugned judgment and decree. 2. The facts necessary for the disposal of this second appeal lie in narrow compass. Suffice it to say that a suit for possession on the basis of title and for injunction was filed by the plaintiffs (respondents No.1 and 2) 31 years ago on 28.11.1980 against the defendants in respect of certain agricultural land, which is the subject-matter of the suit and description whereof has been mentioned in the plaint. In the suit the State of M.P. was impleaded by way of amendment as defendant No.7 according to the M.P. State Amendment under Order 1 rule 3(B) of CPC. 3. The plain and simple case of the plaintiffs is that the suit property was owned by their mother namely Chamelibai, who gifted the same to them by a registered gift-deed dated 18.2.1953 and accordingly the defendants came into the possession of the suit property. Further their case is that after the death of donor Chamelibai, the plaintiff No.1 went to another village and from time to time she was coming back in the village where disputed property is situated and both the plaintiffs were cultivating the land in question. The plaintiffs being the ladies, the defendants by taking undue advantage of their weakness took illegal possession of the suit property and did not permit them to sow the crop. The defendants do not have any right title and interest in the suit property and they are possessing the suit property by using their muscle power. Hence, the suit for possession on the basis of title (registered gift-deed) has been filed by the plaintiffs praying that their possession be restored and further prayed to grant a decree of injunction restraining the plaintiffs not to interfere in their possession. 4. The defendants filed their joint written statement and denied the plain averments. They also denied the title of the plaintiffs and further denied that any gift-deed was executed by donor (Chamelibai) in their favour. 4. The defendants filed their joint written statement and denied the plain averments. They also denied the title of the plaintiffs and further denied that any gift-deed was executed by donor (Chamelibai) in their favour. By amending the written statement it has been further pleaded that the parties belong to Gond community and according to their custom which is a recognized custom, a daughter loses all interest in the property of her father after her marriage and the property remains in the family only, and further there is a custom in their community that a widow cannot gift the property left by her deceased husband and therefore even if Chamelibai has gifted the suit property by registered gift-deed, since she was not having any right in the property of her deceased husband, she was not competent to gift it to the plaintiffs. On these pleadings, it has been prayed by the defendants that suit be dismissed. 5. The learned trial Court framed necessary issues and specifically framed issue No.1 as to that whether the plaintiffs became owner of the suit property by virtue of gift-deed dated 18.2.1953. The parties thereafter led their evidence and after recording the evidence, learned trial Court found the suit of the plaintiffs to be proved and eventually decreed the same. The first appeal which was filed by the defendants has been dismissed by the impugned judgment and decree. 6. In this manner, this second appeal has been preferred by the defendants. 7. This Court on 19.10.1994 admitted the appeal on the following substantial questions of law : (1) Whether due execution, attestation and validity of gift-deed (Ex.P-1) has been made out under section 90 of the Evidence Act? (2) Whether, the donee, the plaintiffs are debarred from acquiring absolute interest under section 14(1) of the Hindu Succession Act, 1956? By pressing substantial question of law No.(2) Shri Pranay Verma, learned counsel for appellants submits that as per the case of plaintiffs Chamelibai wd/o Ramlal and mother of plaintiffs, gifted the suit property on 18.2.1953 vide gift-deed (Ex.P-1). By inviting my attention to the testimony of plaintiff No.1 Bandibai it has been put-forth by learned counsel that after the death of Ramlal,his widow Chamelibai also died within three years of his death and further he argued that after execution of the gift-deed Chamelibai was alive for two years only. By inviting my attention to the testimony of plaintiff No.1 Bandibai it has been put-forth by learned counsel that after the death of Ramlal,his widow Chamelibai also died within three years of his death and further he argued that after execution of the gift-deed Chamelibai was alive for two years only. Hence, according to learned counsel somewhere in the year 1952 Ramlal died and thereafter in the year 1955 Chamelibai had died and thus it is proved from the testimony of plaintiff No.1 herself that Chamelibai died earlier to coming into force of Hindu Succession Act, 1956 (in short “Act of 1956”) which came into force w.e.f. 17.6.1956, therefore, the donor (Chamelibai) who was having only limited interest of maintenance in the suit property being widow of Ramlal (who was owner of the property) would not become absolute owner of the suit property on coming into force of the Act of 1956, therefore, the gift-deed (Ex.P-1) which was executed by her in favour of plaintiffs would not convey a valid title in the plaintiffs for the simple reason that she was not owner of the suit property and she was having only limited right of maintenance and therefore on account of death of Chamelibai in the year 1955 the disputed property devolved in the defendants, who are the revisioners. Learned counsel further submits thtat Hindu law is applicable on the Gond community. 8. Learned counsel for appellants further submits that there is no pleading of plaintiffs that in the Gond community to which the parties belong, there is a valid custom that on account of death of husband, his widow will become absolute owner and in absence of pleading of valid and recognized custom which was alleged to be prevailing and without proving the same, although the parties are of Gond community the provision of Hindu law will be applicable on them and therefore Chamelibai was having limited right in terms of section 3 of the Hindu Women’s Rights to Property Act, XVIII of 1937 (in short “Act of 1937”). Learned counsel submits that having failed to plead and prove the custom that widow who was having limited interest under the Act of 1937 would become absolute owner of the property left by her husband in absence of male issue and further she was having any right to give the property in gift, it cannot be said that the gift-deed (Ex.P-1) is a valid deed of conveyance. In support of his contention, learned counsel has placed heavy reliance on the decision of Division Bench of this Court in Shamlal Shrikisan Maheshwari v. Mt. Jiyabai w/o Shrikisan [AIR (31) 1944 Nagpur 62]. He has also placed reliance on Sukhsen v. Shravan Kumar [ 1972 JLJ 193 = 1972 MPLJ 95 ], an unreported judgment of this Court in S.A. No.464/1979 (Rupatiya Bai v. Sona Bai) decided on 8.2.1985 and Kailash Singh v. Mewalal Singh Gond [ 2002(II) MPWN 8 =AIR 2002 Madhya Pradesh 112]. These decisions pertain to Gond community only. Learned counsel has also placed heavy reliance on the decision of Supreme Court in Harihar Prasad Singh v. Balmiki Prasad Singh [ AIR 1975 SC 733 ], and submitted that a custom is required to be pleaded and proved and burden of proof lies on the existence of such a custom on a person who pleads it. 9. By pressing the substantial question of law No. (1) it has been canvassed by learned counsel for appellants that in the present case, no attesting witness to the gift-deed has been examined and if that would be the position, the gift-deed which is a document of title of the plaintiffs is not proved and plaintiffs stand nowhere. 10. On the other hand Smt. Janvi Pandit, learned counsel for respondents No.1 and and 2 argued in support of the impugned judgment passed by learned two Courts below and submitted that since Chamelibai gifted the disputed property to plaintiffs vide registered gift-deed dated 18.2.1953, the plaintiffs on coming into the force of Act of 1956 became absolute owner because under section 14(1) of the Act of 1956, a widow will become absolute owner irrespective of fact whether she had acquired property prior to coming into force of the said Act or thereafter and if that would be the position learned counsel submits that plaintiffs acquired a valid title in them by virtue of gift-deed (Ex.P-1) dated 18.2.1953 executed by their mother in their favour. In support of her contention, learned counsel has placed heavy reliance on the decision of Supreme Court Surjit Kaur (Mst.) v. Arjan Singh [ (1997)11 SCC 310 ]. 11. By putting a deep dent on the submission of learned counsel for appellants, it has been put-forth by Smt. Pandit that this second appeal has been admitted only on the aforesaid two substantial questions of law and no other question has been framed. Learned counsel has invited my attention to para 10 of the impugned judgment and submitted that prior to filing of the suit, the plaintiffs were in possession and for the cogent reasons First Appellate Court decreed the suit of restoration of possession and because no substantial question of law has been framed on this point, even if both the substantial questions of law are answered in favour of appellants, the suit of the respondents would not fail. By putting a hammer on the submission of learned counsel for appellants, it has been put-forth by Pandit that if section 90 of the Evidence Act, 1872 (in short “Evidence Act”) is considered in its true perspective because the document (Ex.P-1) is 30 years old when the suit was filed there is a valid presumption of its attestation and execution. Hence, it has been prayed by her that this appeal be dismissed. 12. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. Regarding substantial question of law No. (1) : 13. The contention of learned counsel for respondents that where a document purporting or proved to be 30 years old is produced from any custody, the Court may presume that the signature and every other part of the document which purports to be hand-writing of any particular person is that person’s hand-writing and in case the document executed or attested that it was duly executed or attested by the person by whom it purports to be executed and attested. Thus, it is proved that gift-deed (Ex.P-1) dated 18.2.1953 which is a 30 years old document, therefore, section 90 of the Evidence Act is attracted. The suit was filed on 18.11.1980 and therefore on the date of filing of the suit 30 years were not completed. Thus, it is proved that gift-deed (Ex.P-1) dated 18.2.1953 which is a 30 years old document, therefore, section 90 of the Evidence Act is attracted. The suit was filed on 18.11.1980 and therefore on the date of filing of the suit 30 years were not completed. But, according to me, the date of filing of the suit is not the determining date to compute period of 30 years and indeed this period should be computed when the document was tendered in the evidence. On bare perusal of the gift-deed Ex.P-1 dated 18.2.1953 this Court finds that same was tendered in the evidence of plaintiff Bandibai on 18.2.1983 when she was examined as PW1 and therefore on the date when this document was tendered 30 years were already completed. In this regard Law of Evidence by Sarkar 17th Edition Page 1653 may be seen. But, section 90 of the Evidence Act speaks about presumptive value of 30 years old document and nothing more. This presumption is a rebuttal presumption and once the execution of the document of gift is denied by the defendants specifically in their written statement by taking a firm stand that it was never executed. The revenue record which has been filed by defendants it raises a doubt about the execution of this document. Hence, it was incubent upon the plaintiffs not only to prove the execution of the document of gift but the attestation was also required to be proved. 14. Under section 123 of Transfer of Property Act, 1882 (in short “T.P. Act”) which is in respect to the gift, it is clear that for a valid gift of immovable property, the transfer must be affected by a registered instrument signed by or on behalf of donor and attested by atleast two witnesses. 14. Under section 123 of Transfer of Property Act, 1882 (in short “T.P. Act”) which is in respect to the gift, it is clear that for a valid gift of immovable property, the transfer must be affected by a registered instrument signed by or on behalf of donor and attested by atleast two witnesses. The term “attested” is also interpreted in section 3 of the T.P. Act and it would be condign to quote the said provision which reads thus: “attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary. Thus, according to me, the attestation of the gift-deed was required to be proved according to the definition of the word “attested” in section 3 of the T.P. Act. At this juncture, section 68 of the Evidence Act is required to be taken into account which speaks about the proof of execution of a document required by law to be attested and as per this section if a document is required by law to be attested, it shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution. Needless to say that a gift-deed is required to be attested atleast by two witnesses and therefore attestation is required to be proved by examining atleast one attesting witness. It is not the case of the plaintiffs that attesting witnesses are not alive. Even if they are not alive, the legislature has taken note of this situation and has enacted section 69 in the Evidence Act which pertains to proof where no attesting witness is found. It is not the case of the plaintiffs that attesting witnesses are not alive. Even if they are not alive, the legislature has taken note of this situation and has enacted section 69 in the Evidence Act which pertains to proof where no attesting witness is found. Thus, I am of the view that since plaintiffs are basing their case and title on the basis of the registered gift-deed (Ex.P-1) dated 18.2.1953, they were duty bound to examine atleast one attesting witness in order to prove the attestation of the gift-deed and the plaintiffs cannot take aid of section 90 of the Evidence Act. 15. Even if the presumption under section 90 of the Evidence Act is drawn in favour of the plaintiffs, until and unless it is proved by the plaintiffs that Chamelibai who gifted the suit property to them on 18.2.1953 (Ex.P-1) was the absolute owner of the suit property on that date it cannot be said that plaintiffs acquired a valid title in them by the said gift-deed. Hence, it is to be seen whether Chamelibai after the death of her husband would become the absolute owner of the suit property or not. Admittedly the property was of her husband Ramlal who died somewhere in the year 1952 and after his death Chamelibai was having only limited interest of maintenance in the suit property under the Act of 1937. Had she been alive on coming into force of the Act of 1956, certainly she would have become absolute owner of the suit property under section 14(1) of the Act of 1956. But, since she died much prior to coming into force of the Act of 1956 and was having only limited interest in the suit property, she was not competent to give the suit property to plaintiffs in gift even though registered gift-deed has been executed by her in their favour. 16. The substantial questionof law No.1 is thus answered that attestation and validity of gift-deed (Ex.P-1) is not proved because the attesting witnesses have not been examined and section 90 of the Evidence Act is having only presumptive value and nothing more. Regarding substantial question of law No.(2) : 17. 16. The substantial questionof law No.1 is thus answered that attestation and validity of gift-deed (Ex.P-1) is not proved because the attesting witnesses have not been examined and section 90 of the Evidence Act is having only presumptive value and nothing more. Regarding substantial question of law No.(2) : 17. On going through the judgment of learned two Courts below and particularly the impugned judgment passed by learned First Appellate Court para 6 this Court finds that a finding has been arrived at by the said Court that on account of the death of Ramlal who was of Gond community, his entire right in the suit property devolved upon his widow Chamelibai and this is a valid custom in the Gond community and therefore Chamelibai has rightly gifted the suit property to plaintiffs by registered gift-deed (Ex.P-1). However, on bare perusal of the plaint nowhere it is gathered that any such custom has been pleaded by the plaintiffs and it has also not been proved by plaintiff (PW1) in her testimony. The plain and simple case of the plaintiffs is that by virtue of gift-deed dated 18.2.1953 executed by their mother Chamelibai, they became the owner of the suit property. According to me, if a particular valid custom is prevailing in Gond community, it should have not only been pleaded but it was also required to be proved. In absence of any such pleading no conclusion can be arrived at that a particular custom is prevailing in that community. 18. In the present case, the factual position which has been carved out from the evidence of plaintiff No.1 herself is that somewhere in the year 1952 the husband of Chamelibai namely Ramlal had died and three years thereafter i.e. in the year 1955, Chamelibai also died. Thus, admittedly Ramlal and his widow died prior to coming into force of Act of 1956. I do not find any merits in the contention of learned counsel for respondents that the burden of proof was on the defendants to prove that a particular custom is prevailing in Gond community that on account of death of a husband the entire property would not devolve in his widow. According to me, if a particular party is pleading a particular custom in that situation that party is required to prove that custom. According to me, if a particular party is pleading a particular custom in that situation that party is required to prove that custom. In the present case neither any such custom has been pleaded by the plaintiffs nor has it been proved by them. According to me, in absence of proving any custom to the contrary that provisions of Hindu law are not applicable in the Gond community, it would be deemed that Hindu law is applicable even on Gond community. The Division Bench of this Court in Shamlal Shrikisan (supra), has laid down the law that where a caste is admittedly governed by Hindu law but it is asserted that there exists a special custom in derogation of that law the onus rests upon those who assert the custom to make it out. The same view was taken by learned Single Bench of this Court in Sukhsen (supra), wherein, it has been held that although Gond community is not Hindu, but presumption is that they are governed by Hindu law unless the contrary is shown. The Single Bench of this Court in S.A. No.464/1979 (Rupatiya Bai v. Sona Bai, decided on 8.2.1985) has also laid down the same principle of law and I apt to quote para 4 of the said judgment : “4. It cannot be counted, in view of the decision of this Court in Sukhsen v. Shravan Kumar [ 1972 MPLJ 95 ], that there is a presumption that Gonds are governed by Hindu law, unless the contrary is shown. Accordingly, it was for the defendant to prove the contrary, which has not been done and the presumption of applicability of Hindu law to the parties is clearly available. The contrary conclusion reached by the first appellate Court was, therefore, clearly erroneous.” 19. In an another decision of learned Single Bench Kailash Singh (supra), it had been held that there should be a proper pleading and proof of such custom and because there is no pleading in that regard, therefore, this Court held that the provision of Hindu law would be applicable. Above all, the Supreme Court also in Harihar Prasad Singh (supra), has held that in the first instance it is for the plaintiffs to prove the existence of a particular custom and if they failed to prove it, they cannot succeed. Above all, the Supreme Court also in Harihar Prasad Singh (supra), has held that in the first instance it is for the plaintiffs to prove the existence of a particular custom and if they failed to prove it, they cannot succeed. Thus, in the present case it was for the plaintiffs to plead and prove the custom. Even if the custom which the defendents have pleaded by amending their written statement, has not been proved by them, it would not strenghten the case of the plaintiffs because first of all it was for the plaintiffs to prove the custom and then only the burden would shift on the defendants to plead the custom which they pleaded. Since plaintiffs have failed to prove the custom prevailing in Gond community, the provision of Hindu Law would be applicable. 20. I do not any merits in the contention of learned counsel for respondents that under section 14(1) of the Act of 1956 plaintiffs became absolute owner of the suit property for the simple reason that when this Act came into force on 17.6.1956 the donor Chamelibai had already died and therefore when the donor did not perfect any absolute title under section 14(1), the plaintiffs who are stepping into the shoes of their donor Chamelibai would also not become absolute owner. The decision of Surjit Kaur (supra), placed reliance by respondents is not applicable because in the said decision the widow was alive when the Act of 1956 came into force. However, the situation in the present case is otherwise. 21. I also do not find any merits in the contention of learned counsel for respondents that plaintiffs’ possession was found immediately before filing of the suit and therefore their suit has been rightly decreed and because no substantial question of law has been framed on this point, even if both the substantial questions of law are answered in favour of appellants, the suit of plaintiffs would not be dismissed. The simple reason is that under Article 64 of the Limitation Act a suit for possession would lie on account of previous possession which is not based upon the title and in that suit only the previous possession of plaintiffs before filing of the suit is to be seen. The simple reason is that under Article 64 of the Limitation Act a suit for possession would lie on account of previous possession which is not based upon the title and in that suit only the previous possession of plaintiffs before filing of the suit is to be seen. But in the present case, the suit has not been filed on the basis of previous possession, on the contrary, it has been filed for possession on the basis of title and in this regard para 1 of the plaint is quite clear. 22. The substantial question of law No.2 is thus answered that donee-plaintiffs are debarred from acquiring absolute interest under section 14(1) of Act of 1956. 23. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment and decree of learned two Courts below are hereby set aside and the suit of the plaintiffs is dismissed with no order as to costs. .............