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2013 DIGILAW 1118 (PAT)

Rajdeo Singh v. Vidharthi Devi

2013-09-13

MUNGESHWAR SAHOO

body2013
ORAL JUDGMENT Mungeshwar Sahoo, J. 1. The original plaintiff-respondent appellant Dipti Devi filed this second appeal against the Judgment and Decree dated 26.7.1990 passed by the 9th Addl. District Judge, Ara in title appeal No.51 of 1989 whereby the lower appellate Court allowed the appeal and reversed the Judgment and Decree of the trial Court dated 10.7.1989 passed by First Subordinate Judge, Ara in title suit No.20 of 1986. The plaintiff-appellant died during the pendency of the appeal and her legal representatives have been substituted in her place. 2. The plaintiff appellant filed the aforesaid suit for declaration that the deed of gift ext. ‘E’ dated 13.7.1956 executed by Mostt. Bachani Devi was forged and fabricated document and it was not binding on her and consequently the plaintiff also prayed for partition of her half share in the suit property. According to the plaintiffs, one Chander Mahto had two daughters namely, the plaintiff Bipati Devi and Gangiya Devi, the defendant No.1. Chander Mahto died in the year 1951-52 and Bachani Devi died in the year 1954. After their death, two daughters are in joint possession of the property and, therefore, she claimed half share. The plaintiff came to know that the defendant has got a gift deed said to have been executed by Bachani Devi but in fact the gift deed is forged document because the deed of gift is dated 13th July, 1956 whereas Bachani Devi died in the year 1954. The plaintiff came to know about the existence of this gift deed in mutation proceeding in the year 1983. 3. The defence of the defendant is that on the death of Chander Mahto, Bachani Devi inherited the property of her husband and in fact she died in the year 1958 and not in the year 1954 as alleged by the plaintiff. The gift deed is valid and genuine document. The plaintiff had the knowledge about the execution of the gift deed in favor of defendant No.2, i.e., the son of defendant No.1 and the suit has been filed after 3 years, therefore, the suit is also barred by law of limitation. 4. The trial Court decreed the plaintiff suit filed by the plaintiff recording the finding that Bachani Devi died 1954 and not in 1958. 4. The trial Court decreed the plaintiff suit filed by the plaintiff recording the finding that Bachani Devi died 1954 and not in 1958. The defendants have not acquired title by adverse possession and that the plaintiff got the knowledge of the deed in the year 1983, therefore, the suit is not barred by law of limitation. The defendants filed title appeal. The lower appellate Court after considering and re-appreciating the evidences and materials available on record recorded the findings that Bacnani Devi died in the year 1958 and the gift deed dated 13.7.1956 is valid and genuine document. The lower appellate court also recorded that the suit has been filed after 3 years from the date of knowledge, therefore, the suit is barred by law of limitation. 5. The plaintiff then filed this second appeal. On 9.1.1992 at the time of admission, the following two substantial question of law were formulated :- (i) Whether the Court below was correct in attracting the presumption under section 90 in favour of the defendant to hold that the deed of gift (Ext.’E’) was genuine? (ii) Whether the Court of appeal has considered the oral evidences adduced by the parties on that point? 6. The learned counsel, Mr. Singh, appearing on behalf of the appellant submitted that one of the attesting witnesses was alive but the attesting witness namely, Sri Bhagwan Singh was not examined by the defendant-respondent to prove the gift deed ext. ‘E’ and the lower appellate Court merely presumed the genuineness of gift deed according to the provision as contained in Section 90 of the Evidence Act which the lower appellate Court could not have done. On the contrary, the learned senior counsel, Mr. Dwivedi, appearing on behalf of the respondent submitted that in fact the ext. ‘E’ was marked as an exhibit on the basis of the evidence of D.W.13, Shyamla Nandan Prasad, who was not only attesting witness but was also identifier and, therefore, it cannot be said that on mere presumption under Section 19, the document has been marked as an exhibit in the Court. Moreover, in addition to the above, examination of D.W.13, the Court has considered presumption available under Section 90 of the Code of Civil Procedure. 7. Moreover, in addition to the above, examination of D.W.13, the Court has considered presumption available under Section 90 of the Code of Civil Procedure. 7. In view of the substantial question of law, the question required to be considered is about the presumption which the Court can draw in view of the provision as contained under Section 90 of the Evidence Act. For better appreciation, Section 90 of the Evidence Act is quoted hereinbelow :- “90. Presumption as to documents thirty years old – Where any document purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.” 8. It may be mentioned here that this registered gift deed is of the year 1956 ext. ‘E’. This deed has been produced by the defendant in the Court below. According to the plaintiff, this gift deed is forged gift deed and in fact it was not executed by Bachani Devi. In the case of Prem Sijngh Vs. Birbal 2006 (5) S.C.C. 353 = 2006 (3) P.L.J.R. 179 SC at paragraph 28, 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 prove thus would be on a person who leads evidence to rebut the presumption. Therefore, in the present case in addition to the prove of the registered gift deed by D.W.13, the presumption also is in favor of the defendant as the document is registered document and in addition to that the lower Court has considered the presumption of validity of the gift deed. 9. In the case of Lakhi Barua Vs. Therefore, in the present case in addition to the prove of the registered gift deed by D.W.13, the presumption also is in favor of the defendant as the document is registered document and in addition to that the lower Court has considered the presumption of validity of the gift deed. 9. In the case of Lakhi Barua Vs. Padamkant Kalita A.I.R. 1996 SC 1253, the Apex Court considering the scope of Section 90 of the Evidence Act held that Section 90 of the Evidence Act is founded or necessity or convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old document after lapse of 30 years. In order to obviate such difficulty or improbalities to prove execution of an old document, Section 90 has been incorporated in Evidence Act, which does away with the strict rule of proof of private document. Presumption of genuineness may be raised if the document in question is produced from proper custody. It is, however, the discretion of the Court to accept the presumption flowing from Section 90. In the present case at our hand, the document has been produced from the proper custody which is registered document and the same has been proved by one of the attesting witness who is also identifier as stated above and according to the decision of the Apex Court in the case of Lakhi Barua (Supra), it is a matter of judicial discretion of the Court. Now, therefore, if the lower appellate Court even if has taken recourse of Section 90 for presuming the genuineness of the document, the same judicial discretion exercised by the lower appellate Court cannot be interfered with in second appellate jurisdiction and it cannot be said that it is a substantial question of law. 10. So far second substantial question of law is concerned, it appears that lower appellate Court has considered the oral evidences with respect to presumption arising under Section 90 of the Evidence Act. 11. In view of the above facts and circumstances of the case and the settled principle of law, both the substantial questions of law are answered against the appellant. Therefore, I find no merit in this second appeal and accordingly, this second appeal is dismissed. No order as to cost.