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2012 DIGILAW 918 (PAT)

Ramawati Devi v. Prabhawati Kuer

2012-07-04

MUNGESHWAR SAHOO

body2012
ORDER Heard the learned senior counsel Mr. T.N. Maitin appearing on behalf of the appellant. 2. Plaintiff respondent is the appellant in this second appeal. She filed Title Suit No. 22 of 1996 for declaration and for setting a side the deed of gift No. 1634 dated 22.4.1966 executed by Rajpati Kunwer in favour of Shiv Dei Devi, Ram Kumar Tiwari, Sarada Devi and Sudama Pandey with respect to suit land on the ground that it is without jurisdiction, fraudulent, forged, fabricated, fictitious, illegal, null and void document. After trial the trial court decreed the plaintiff’s suit holding that the property was coparcenery property and, therefore, executant had executed the gift deed against the law as such the document is void document. On appeal, (T.A. No. 101 of 2009/ 66 of 2010) the lower appellate court set aside the trial court judgment and allowed the appeal recording a finding that the suit has been filed in the year 1996 for declaring the gift deed of the year 1966 as null and void and the plaintiff appellant had the knowledge about the gift deed in the year 1981-82 itself and, therefore, the suit is barred by law of limitation. The lower appellate court also found that after death of Bechan Tiwari his widow Rajpati became the sole owner of the property as Bechan Tiwari had no son. 3. The learned senior counsel appearing on behalf of the appellant submitted that the original gift deed was never produced by the defendant in the courts below because it was the burden on the part of the defendant to produce and prove due execution of the gift deed as the plaintiff has categorically stated that it was not executed by Rajpati Kunwer. The trial court relying on this point has decreed the plaintiff’s case. The lower appellate court did not consider this aspect of the matter. 4. The learned senior counsel further submitted that the finding of the lower appellate court regarding the knowledge of the appellant about the gift deed in the year 1981-82 is erroneous. According to the learned counsel since the gift deed was void therefore, no limitation will apply but the learned court below wrongly held that the suit filed by the plaintiff is time barred. 5. As stated above the plaintiff filed the suit for declaration that the gift deed dated 22.4.1966 Ext. According to the learned counsel since the gift deed was void therefore, no limitation will apply but the learned court below wrongly held that the suit filed by the plaintiff is time barred. 5. As stated above the plaintiff filed the suit for declaration that the gift deed dated 22.4.1966 Ext. J is fraudulent, forged, fabricated, fictitious, illegal and null and void document. It may be mentioned here that the certified copy of the gift deed was filed by the defendant Ext. J. The suit has been filed in the year 1996. The lower appellate court has recorded categorical finding at paragraph 20 that the appellant had the knowledge about this gift deed in the year 1981-82. So far this finding is concerned it is finding of fact. In Second appeal after re-appreciation the evidence on this point this Court cannot substitutes its own finding even if the other view is possible on the basis of the materials available on record. Now therefore, if this finding of the lower appellate court cannot be interfered with then the question will be whether the suit filed by the plaintiff is barred by limitation. 6. In the case of Prem Singh and others Vs. Birbal and others 2006 (3) PLJR 179 SC the Apex Court has held that Article 59 of the Limitation Act would be attracted when coercion, undue influence, misappropriation or fraud which the plaintiff asserts is required to be proved. Article 59 would apply to the cases of such instruments. It would therefore, apply where a document is prima facie valid. It would not apply only to instrument which are presumptively invalid. Therefore, according to the Apex Court if the documents itself is void document Article 59 will not apply. In the present case, admittedly, Bechan Singh has no issue and after his death his widow Rajpati Kunwar became the absolute owner of the property and she has executed the gift deed. In such circumstances prima facie it cannot be said that Rajpati Kunwar has no authority to execute the gift deed. So far the relief claimed by the plaintiff regarding fraudulent, forged, fabricated, fictitious etc. are concerned it requires to be proved by the plaintiff. Therefore, in my opinion, Article 59 of the Limitation Act will apply as has been held by the Apex Court in the aforesaid decision. So far the relief claimed by the plaintiff regarding fraudulent, forged, fabricated, fictitious etc. are concerned it requires to be proved by the plaintiff. Therefore, in my opinion, Article 59 of the Limitation Act will apply as has been held by the Apex Court in the aforesaid decision. Now therefore, this point has already been settled by the Apex Court. 7. In such view of the matter in my opinion, it is not a substantial question of law involved in this second appeal because to be substantial, a question of law must be debatable one which has not been settled by any statute or any binding precedent. Here the Hon’ble Supreme Court has settled this matter. 8. So far the submission of the learned counsel for the appellant that the appellate court has not considered the reasons of the trial Court to the effect that it was for the defendant to prove the gift deed according to Section 68 of the Evidence Act is concerned, in my opinion, it is for the plaintiff to prove his case for the relief which he has clamed the initial burden was on the plaintiff. However, when both parties adduced evidences the burden lost its importance as has been held by the Apex Court in Arumugham (dead) by L.Rs. and others Vs. Sundarambal and another. It further appears that he never prayed for calling for the register from the registry office nor he ever filed any admitted document for comparison and moreover the suit has been filed after 30 years of the execution of the deed of gift. It further appears that the lower appellate court has declared the deed of gift as void on the ground that the property was coparenery property. In my opinion, the learned lower appellate court therefore, has rightly held that the opinion expressed by the trial court is wrong because as has been held above Bechan Tiwari died leaving behind his widow in the year 1955 and, therefore, widow became the absolute owner of the property. In such circumstances, there is no question of coparcenery family arise. 9. In view of the above facts and circumstances, in my opinion this is also not a substantial question of law involved in this case. Accordingly, I find that no substantial question of law is involved in this second appeal for decision. In such circumstances, there is no question of coparcenery family arise. 9. In view of the above facts and circumstances, in my opinion this is also not a substantial question of law involved in this case. Accordingly, I find that no substantial question of law is involved in this second appeal for decision. Thus second appeal is dismissed at the admission stage itself.