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2012 DIGILAW 1111 (PAT)

Dulhin Dulari Devi v. Rajendra Pasi

2012-08-09

MUNGESHWAR SAHOO

body2012
Mungeshwar Sahoo, J. – The plaintiff-appellant-appellant has filed this Second Appeal against the judgment and decree dated 30.04.1992 passed by Sri Kapileshwar Prasad, 10th Additional District Judge, Rohtas at Sasaram in Title Appeal No.14 of 1987/14 of 1988 dismissing the appeal and thereby confirming the judgment and decree passed by the trial court in Title Suit No.16 of 1983 dated 10.04.1987 passed by Sri Girija Nandan Prasad Azad, 1st Additional Munsif, Sasaram. 2. The plaintiff-appellant filed the aforesaid title suit for declaration that the deed of gift no.168 dated 20.01.1978 executed by Gulab @ Gulab Pasi to Kawali Devi with respect to Schedule “ka” and “kha” lands is illegal, forged, inoperative, null and void and is not binding on the plaintiff. The plaintiff also prayed for partition of the suit property. It may be mentioned here that so far partition of the property is concerned, it was abated in view of the provisions of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 on 01.09.1986. Therefore, only the relief remained is with respect to declaration regarding the gift deed of the year 1978. 3. According to the plaintiff, Gulab Pasi had 2 daughters namely Kawali Devi and Sahti Devi. Sahti Devi died in the year 1975 leaving behind the plaintiff as her sole heir. After death of her mother, she was living with grandfather, Gulab Pasi. Gulab Pasi executed a registered deed of Will on 16.06.1975 in her favour regarding the Schedule “ka” land measuring 89.5 decimals. Gulab Pasi died in the year 1980 leaving behind his properties mentioned in Schedule “kha” of the plaint measuring about 1 acre 23.5 decimals. After death of Gulab Pasi, his wife, Etwariya executed and registered deed of gift dated 16.04.1981 in favour of the plaintiff. The plaintiff came to know that husband of defendant no.1, Bhola Pasi committing fraud obtained a deed of gift executed instead of Will in the name of Kawali Devi by Gulab Pasi. On the basis of the said deed, Kawali Devi got her name mutated with respect to “ka” and “kha” lands in Mutation Case No.499 of 1977-78. The husband of defendant no.1 requested Gulab Pasi to execute deed of Will for the remaining lands in the name of defendant no.1, Kawali Devi and fraudulently got the gift deed executed by Gulab Pasi. The husband of defendant no.1 requested Gulab Pasi to execute deed of Will for the remaining lands in the name of defendant no.1, Kawali Devi and fraudulently got the gift deed executed by Gulab Pasi. When this fraud came to light of Gulab Pasi, he cancelled the same on 01.02.1978. 4. The defendants contested the suit mainly contending that Gulab Pasi never executed deed of Will on 16.06.1975. He executed the deed of gift in favour of defendant no.1 of 20.01.1978 and on the basis of the gift deed, the defendants came in possession of the gifted property. The plaintiff never came in possession of the property either on the basis of gift or on the basis of Will. The suit is barred by law of limitation. The suit property is not the joint family property. 5. After trial, the trial court recorded a finding that the gift deed is void document and the sale deed executed by defendant no.1 in favour of defendant no.2 are also void for the reason that no permission was obtained from the consolidation authority. However, the trial court dismissed the plaintiff’s suit in its entirety finding that the suit is barred by law of limitation. 6. Appeal was filed by the plaintiff before the Lower Appellate Court. The purchasers filed cross-objection. The Lower Appellate Court recorded the finding that the gift deed is valid and genuine document and reversed the finding of the trial court and dismissed the appeal. 7. On 14.12.1992, the following two substantial questions of law were formulated: – I. Whether the finding of the Lower Appellate Court as to the nature of the impugned deed of gift as being valid is in accordance with law? II. Whether the courts below have committed error of law in holding the suit as barred by limitation? 8. The learned counsel, Mr. Mahesh Prasad No.2 appearing on behalf of the appellant submitted that the trial court wrongly held that the suit is barred by law of limitation after recording a finding that gift deed is void. The learned counsel submitted that once it is held that the gift deed is void deed then there is no question of limitation arises. Mahesh Prasad No.2 appearing on behalf of the appellant submitted that the trial court wrongly held that the suit is barred by law of limitation after recording a finding that gift deed is void. The learned counsel submitted that once it is held that the gift deed is void deed then there is no question of limitation arises. The learned counsel relied upon a decision of the Apex Court reported in AIR 1968 Supreme Court 956 (Ningawwa vs. Byrappa Shiddappa Hireknrabar & Ors.) and submitted that Limitation Act will not apply in cases of void document. So far substantial question of law no.1 is concerned, the learned counsel submitted that the Lower Appellate Court has wrongly held the gift deed to be valid document without considering the cancellation deed and the reason assigned by the trial court. 9. Admittedly, according to the parties, the property belonged to Gulab Pasi. He had two daughters namely Kawali Devi and Sahti Devi. The plaintiff is the daughter of Sahti Devi. It is admitted fact that gift deed was executed on 20.01.1978 by Gulab pasi in favour of defendant no.1. Gulab Pasi died in the year 1980. The plaintiff claimed that the gift deed is illegal, forged, inoperative and not binding. The plaintiff has produced Exhibit 1, the cancellation deed executed by Gulab Pasi on 01.02.1978. The Lower Appellate Court recorded a finding that Gulab Pasi had the knowledge about the execution of the gift deed and, therefore, the cancellation deed was executed by him. In view of the above admitted position and fact, it is clear that the owner of the property had executed the registered gift deed, Exhibit B. 10. In the case of Prem Singh vs. Birbal, (2006)5 Supreme Court Cases 353, the Apex Court has held that there is a presumption that a registered document is validly executed. A registered document, therefore, prima facie, would be valid in law. The onus of proof thus would be on a person who leads evidence to rebut the presumption. Here, Exhibit B is a registered document. The presumption is in favour of the person in favour of whom the document has been executed. Therefore, it was for the plaintiff to have proved that the sale deed is illegal, invalid and inoperative. 11. The onus of proof thus would be on a person who leads evidence to rebut the presumption. Here, Exhibit B is a registered document. The presumption is in favour of the person in favour of whom the document has been executed. Therefore, it was for the plaintiff to have proved that the sale deed is illegal, invalid and inoperative. 11. In the aforesaid decision, the Apex Court has further held that Section 31 of the Specific Relief Act, 1963 refers to both void and voidable document. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same could not be necessary as the same is non est in the eye of law as it would be a nullity. Once however, a suit is filed by a plaintiff for cancellation of a transaction, it would be governed by Article 59 of the Limitation Act and even if Article 59 is not attracted, the residuary article will apply. Article 59 would be attracted when coercion, undue influence, misrepresentation or fraud which the plaintiff asserts is required to be proved. Therefore, in the present case, in view of the Apex Court decision, Article 59 will be applicable because prima facie, the owner of the property executed a registered deed of gift, Exhibit B in the year 1978. Accordingly, the said gift deed cannot be said to be void ab initio document. For avoiding the said gift deed, the plaintiff is required to prove the fact of fraud or misrepresentation or illegality thereof that too within the period prescribed under Article 59 of the Limitation Act. Here, as has been admitted by the parties, Gulab Pasi died in the year 1980 but during this period, he did not take any step for cancellation of the deed as provided under Section 31 of the Specific Relief Act. In view of the above fact, he could not have executed a cancellation deed and even if a cancellation deed has been executed, it will not cancel automatically the gift deed. For cancellation, Gulab Pasi should have filed suit before the Civil Court. Unilaterally, the gift deed cannot be held to have been cancelled on the execution of cancellation deed. 12. For cancellation, Gulab Pasi should have filed suit before the Civil Court. Unilaterally, the gift deed cannot be held to have been cancelled on the execution of cancellation deed. 12. So far the submission of the learned counsel that the trial court held that the gift deed is void document is concerned, it may be mentioned here that the finding of the trial court is erroneous finding. It cannot be said that the gift deed executed by the real owner of the property is void document. It will be only voidable at the instance of the executant on the ground of either fraud, misrepresentation and coercion etc. Admittedly, during his lifetime, he did not take any step for canceling the gift deed on those grounds. Because the plaintiff is claiming through Gulab Pasi, she cannot take different stand than Gulab Pasi. 13. So far the decision relied upon by the learned counsel i.e. the case of Ningawwa (supra) is concerned, it appears that the said decision of the Apex Court has been considered in the case of Prem Singh referred to above. Here, the plaintiff’s case is that the defendant got fraudulently gift deed executed in place of Will. Therefore, for proving this fact, the plaintiff should have filed the suit within 3 years as provided under Article 59 of the Limitation Act, as the cancellation or setting aside of the gift deed is dependent on the proof of fact alleged by the plaintiff. In such circumstances, Article 59 is applicable. However, the Lower Appellate Court has held that the gift deed is valid and genuine document. So far this finding is concerned, it is pure finding of fact as has been held by the Apex Court in the case of Rur Singh (Dead) through LRs. and others vs. Bachan Kaur, (2009) 11 Supreme Court Cases 1. In that case, the genuineness of Will was in question and the Apex Court held that whether the Will is genuine or forged is a question of fact. 14. So far the ground raised by the learned counsel that the Lower Appellate Court has not met the reasonings of the trial court is concerned, it may be mentioned here that the trial court based his finding on cancellation deed executed unilaterally. In my opinion, since the document was unilaterally executed, the contents thereof will not be binding on the defendant-respondent. In my opinion, since the document was unilaterally executed, the contents thereof will not be binding on the defendant-respondent. Admittedly, on the date of execution of the cancellation deed, Gulab Pasi had no concern with the suit property because he had already gifted the property and the defendant no.1 was the owner on that date. 15. The learned counsel for the appellant submitted that against the finding of the trial court that the gift deed is void, no cross-objection was filed by the defendant no.1 but the appellate court has reversed the finding. In my opinion, so far this submission is concerned also, I find no force because the plaintiff’s suit was dismissed in toto. There was no decree against the defendant. The finding regarding void is concerned, was on an issue. Against a finding of an issue, no appeal is maintainable and the defendant no.1 could not have filed independent appeal against the said finding. Therefore, cross-objection was also not maintainable. The Apex Court in the case of Banarsi vs. Ramphal, (2003) 9 Supreme Court Cases 606 has held that appeal lies against decree and not against judgment or any findings. Only person aggrieved by the decree is entitled to file appeal. The Apex Court considered the provision of Order 41 Rule 22 C.P.C. held that against a part of decree only cross-objection is maintainable. 16. In view of the above discussion, I find that the courts below have rightly held that the suit filed by the plaintiff is barred by law of limitation and, therefore, both the substantial questions of law are answered in favour of the respondents and against the appellant. Thus, this Second Appeal is dismissed.