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2016 DIGILAW 621 (HP)

Maghi v. Bhoop Singh

2016-04-29

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J (Oral): This appeal stands directed against the impugned judgement of the learned Presiding Officer, Fast Track Court, Mandi, District Mandi whereby it allowed the appeal preferred before it by the defendants who stood aggrieved by the judgement and decree of the learned trial Court whereunder the latter decreed the suit of the plaintiff appellant. 2. The facts necessary for rendering a decision on the instant appeal are that the suit land is jointly owned and possessed by the plaintiff alongwith father of the defendants Aishi Ram and Ahi Chand to the extent of the share as mentioned in Para-1 of the plaint. The defendants are real nephews of the plaintiff who is a village simpleton and illiterate lady of remote area. The father of the defendants Aishi Ram and Ahi Ram in order to take advantage of illiteracy of the plaintiff allured her to execute the =Will' of her 1/12 share measuring 6-2-3 bighas and took away the plaintiff to Sub-Tehsil Balichowki and in collusion with the petition writer got prepared forged and fictitious gift deed dated 2.9.1999 instead of writing the Will and also got registered the same. The defendants and their father allured the plaintiff to execute the Will and assured her that they will help her and other family members financially at the time of difficulties and in case they will not do so, the plaintiff will be at liberty to revoke or cancel the Will but instead of preparing the Will they got prepared the Gift deed and they also got prepared forged and fictitious Special Power of Attorney for the purpose of attestation of mutation taking advantage of illiteracy of the plaintiff and the contents of the gift deed were never readover and explained to the plaintiff and she was told that the document is a Will and the marginal witnesses have also wrongly attested the false and forged gift deed. The plaintiff remained under-impression that she has executed Will of her share in her parental house and she is at liberty to revoke or cancel the Will in case the defendants and their father will not help her family but the plaintiff came to know lateron that mutation of the suit land has been attested by the revenue authorities in favour of the defendants on 16.12.1999 and then on inquiry she came to know that a forged and fictitious gift deed has been got executed from her. The defendants on the basis of wrong revenue entries are now threatening to forcibly dispossess the plaintiff from the suit land and they are also threatening to alienate and transfer the suit land. 3. The suit of the plaintiff was resisted by defendants on the ground of maintainability and non joinder and mis joinder of necessary parties. It has been stated that the plaintiff has executed gift deed of the suit property of her own free will and it is denied that the said gift deed is forged or fictitious document. It has been further stated that the gift deed was registered in the office of the Sub Registrar and even special power of attorney was also got prepared by the plaintiff of her own free will. It is denied that any fraud was practiced upon the plaintiff at the time of execution of the gift deed and special power of attorney and it is also denied that the plaintiff was taken by the father of the defendants for execution of the Will. 4. In the replication filed on behalf of the plaintiff the averments as contained in the plaint were reiterated and those of the written statement contrary to the plaint were refuted. 5. On the pleadings of the parties, the trial Court struck following issues inter-se the parties in contest:- (i) Whether Magi Devi plaintiff intended to execute Will and defendants by playing fraud undue influence and mis135 representation got executed gift deed No. 107 dated 2.9.2099, as alleged? OPP. (ii) If issue No.1 is decided in affirmative whether the plaintiff is entitled to correct the revenue entries in her favour as alleged? OPP (iii) Whether the suit of the plaintiff is not maintainable? OPD. (iv) Whether the suit of the plaintiff is bad for non joinder and mis joinder of necessary parties, as alleged? OPD. OPP. (ii) If issue No.1 is decided in affirmative whether the plaintiff is entitled to correct the revenue entries in her favour as alleged? OPP (iii) Whether the suit of the plaintiff is not maintainable? OPD. (iv) Whether the suit of the plaintiff is bad for non joinder and mis joinder of necessary parties, as alleged? OPD. (iv.a) Whether the plaintiff has executed a valid gift deed No. 107 dated 2.9.1999 of the suit land in favour of the defendants? OPD. (v) Relief. 6. On an appraisal of the evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff whereas the learned First Appellate Court had allowed the appeal preferred before it by the defendants/respondents. 7. Now the plaintiff/appellant has instituted the instant Regular Second Appeal before this Court, assailing the findings recorded by the learned first Appellate Court, in, its impugned judgment and decree. When the appeal came up for admission on 10.05.2007, this Court admitted the appeal on the hereinafter extracted substantial questions of law:- 1. Whether there has been misreading of evidence oral as well as documentary especially in regard to the gift deed Ext.DW-1/A, which was also not accepted as per Section 122 of Transfer of Property Act? 2. Whether non-disclosing of the name of minor defendants No. 1,2 and 7 in the gift deed is fatal? 3. Whether adverse inference can be drawn against the defendants that they have not proved their case, as none of the defendants appeared in the witness box? Substantial questions of law No. 1 to 3 8. The learned counsel appearing for the plaintiff/appellant does not contest the factum of the execution of Ext.DW-1/A which embodies a gift deed qua the suit property executed by the plaintiff/ appellant in favour of the then minor defendants-respondents herein standing executed in accordance with law. The effect of the aforesaid submission made by the learned counsel for the plaintiff is of his not proceeding to assail the findings recorded by the learned first appellate Court qua gift deed Ext.DW-1/A standing proven to stand executed in accordance with law by the donor who is the plaintiff/ appellant. The effect of the aforesaid submission made by the learned counsel for the plaintiff is of his not proceeding to assail the findings recorded by the learned first appellate Court qua gift deed Ext.DW-1/A standing proven to stand executed in accordance with law by the donor who is the plaintiff/ appellant. However, he confines his arguments qua Ext.DW-1/A standing bereft of legal sanctity on the score of the mandate of Section 122 of the Transfer of property Act (hereinafter referred to as the Act) standing not satiated inasmuch as especially with the donees thereunder at the time contemporaneous to the execution of Ext.DW- 1/A being minors hence incompetent to accept the gift of the suit property entailed an enjoined necessity upon their respective fathers/natural guardians to on their respective behalf accept the gift of the suit property made by the donor in favour of the then minors whereas with no material existing on record depictive of the respective fathers and natural guardians of the then minor donees accepting on the latter behalf gift of the suit property made by the donor as stands reflected in Ext.DW-1/A, rendered Ext.DW-1/A to suffer the causality of invalidation. Contrarily the learned counsel for the defendants respondents submits with much vigour of the fastening of the aforesaid condition in Section 122 of the Act would yet not deprive gift deed Ext.DW-1/A of its legal vigour, as with Ext.DW-1/A standing proved by cogent evidence to in consonance with the mandate of Section 122 of the Act which stand extracted hereinafter:- ?122. Gift defined- Gift is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee.? executed qua the suit property by the plaintiff appellant renders it to on anvil thereof bereft of any vice qua any non compliance with the mandate of Section 122 of the Act, rather hence it enjoys legal sanctity. executed qua the suit property by the plaintiff appellant renders it to on anvil thereof bereft of any vice qua any non compliance with the mandate of Section 122 of the Act, rather hence it enjoys legal sanctity. He also contends with force of even if assuming the respective fathers/natural guardians of the donees not on behalf of the then minor donees accepting the corpus of the gift deed embedded in Ext.DW-1/A yet with Ext.DW-1/A standing proved to on its registration standing effectuated before the Sub Registrar concerned standing handed over to the defendants besides with the Revenue Officer concerned recording an order attesting mutation in consonance thereof qua the suit property in favour of the donees arouses an inference of the donees accepting the mandate of Ext.DW-1/A. Hence he contends of the sine qua non for consummation of Ext.DW-1/A enshrined in Section 122 of the Act also standing begotten. The argument as posed before this Court by the learned counsel for the defendants respondents warrants its being discountenanced by this Court. The reason for so holding is of with both Sections 122 and 123 of the Act occurring in Chapter VII of the Act both stand enjoined to be read harmoniously rather then disjunctively. Section 123 of the Act merely prescribes a mode of effectuation of conveyance of the corpus of property under an instrument of gift drawn by the donor besides its attaining legal solemnity on its standing registered by the registering authority concerned. The recourse to the mechanism contemplated in Section 123 of the Act for validating an instrument of gift drawn/executed by the donor though enjoins strict proven preemptory adherence thereto for imbuing an instrument of gift with an aura of legal solemnity. However, as aforesaid though on completion of the mechanism stipulated in Section 123 of the Act, conveyance of the corpus of the property embodied in an instrument of gift made/executed by the donor would necessarily occur hence with cogent proof existing on record in display of the conditions enshrined in Section 123 of the Act standing satiated would spur an inference qua hence gift deed Ext.DW-1/A attaining validation in law. Nonetheless the mere factum of adoption by the donor of the hereinabove statutory mechanism for alienating the corpus embodied in Ext.DW-1/A would not per se beget a conclusion from this Court of thereupon Ext.DW-1/A standing fastened with a virtue of validation. Nonetheless the mere factum of adoption by the donor of the hereinabove statutory mechanism for alienating the corpus embodied in Ext.DW-1/A would not per se beget a conclusion from this Court of thereupon Ext.DW-1/A standing fastened with a virtue of validation. The virtue of validation when hence per se stands imputed to a gift deed, it would obviously sequel the legal mishap of the provisions of Section 123 of the Act standing read disjunctively besides disharmoniously vis.a.vis. the provisions of Section 122 of the Act which occur prior thereto. Any fragmentary reading or any reading in isolation of the apt statutory provisions governing the facet of a gift deed being construable to be valid or invalid, is hence enjoined to be obviated especially when resort to a piecemeal reading of the apt statutory provisions besides any reading thereof in isolation from other statutory provisions which occur preceding thereto would rather forestall the purpose, import and intent of the latter statutory provisions. The Legislature in its wisdom has preceding the incorporation of Section 123 in the Act engrafted Section 122 therein. In Section 122 the definition of gift occurs. The Legislature while therein defining gift has mandated therein of acceptance by the donee or on his behalf of the corpus of the property embodied in an instrument of gift being a sine qua non for any alienation of property by way of gift to achieve legal consumation. The statutory ingredient as encapsulated therein of acceptance of the corpus of the gift by the donee or on his/their behalf being preemptory especially when the said condition exists in a statutory provision preceding the contemplation in the succeeding provisions engrafting completion of a mechanism for validating an instrument of gift executed by the donor, constrains its being read into the provisions of Section 123 of the Act besides ingredients thereof peremptorily warrant their percolation into the mechanism contemplated in Section 123, for succoring an invincible conclusion of hence with satiation of the process or ingredients contemplated in both provisions a complete valid alienation of the corpus of the property embodied in the instrument of gift stands clinchingly established. In sequel when the provisions of Section 122 are insegregable besides inalienable from the provisions of Section 123 of the Act also when both have to be read conjunctively for effectuating the purpose and import of their respective provisions, the acceptance by or on behalf of the then minor donees of the corpus of the property adumbrated in Ext.DW-1/A was imperative dehors the fact of the mechanism contemplated in Section 123 of the Act standing adopted by the donor by hers executing a registered instrument of gift of suit property. A valid registration of an instrument of gift at the instance of the donor is not perse a complete mode for begetting a valid alienation of the property disclosed in the registered instrument of gift neither does the completion of the statutory mechanism envisaged in Section 123 of the Act either suo moto nor ipso facto completely effectuates any alienation of the corpus of the property delineated in the registered instrument of gift unless the preceding statutory provisions thereto also attain satiation in coagulation thereof comprised in firm evidence in display of the fathers/natural guardians of the then minor donees accepting on the latters behalf the corpus of the property encompassed in the registered instrument of gift. 9. Be that as it may, having formed the aforesaid inference of insegregability of Sections 122 of the Act vis.a.vis. Section 123 thereof besides of both standing enjoined being read harmoniously and of mere adoption of completion of the mechanism contemplated in Section 123 by the donor not without the then minor defendants accepting through their respective fathers/natural guardians the corpus of the property embodied in Ext.DW-1/A making the registered instrument of gift amenable to its standing construed of its standing imbued with a virtue of legal validation, it is incumbent upon this Court to allude to the submission made by the learned counsel for the defendant of given the factum of Ext. DW-1/A standing handed over to the latter by the plaintiff being per se magnificatory of acceptance of Ext. DW-1/A by the respective fathers and natural guardians of the corpus of the property comprised therein on behalf of the then minor donees. DW-1/A standing handed over to the latter by the plaintiff being per se magnificatory of acceptance of Ext. DW-1/A by the respective fathers and natural guardians of the corpus of the property comprised therein on behalf of the then minor donees. He also contends of with recitals reflected in Ext.DW-1/A of possession of the suit property standing delivered to the then minor donees is also personificatory of acceptance of possession thereof which too is articulative of the ingredients of Section 122 of the Act fastening an obligation upon the then minor donees to personally or through their respective fathers/natural guardians accept the corpus of the property encompassed in the instrument of gift, standing accomplished. The aforesaid submission is unworthy of acceptance, for the reason as a simplicitor recital in the gift deed of possession of the corpus of the suit property adumbrated in Ext. DW-1/A standing handed over by the plaintiff to the then minor donees is the least communicative of acceptance of delivery of possession of the corpus of the property described in Ext. DW-1/A by the then minor donees through their respective fathers/natural guardians especially when the minority of the minor donees stands un-reflected in Ext.DW-1/A whereas given their minority thereat they stood incompetent to personally receive delivery of possession of the corpus of the property enumerated in Ext.DW-1/A from the donor in sequel rendering any recital therein of possession thereof standing delivered to them being legally inconsequential. Even otherwise with no recital occurring in Ext.DW-1/A of their respective fathers/natural guardians accepting on behalf of the then minor donees the corpus of the property ear marked in Ext.DW-1/A also prods an inference from this Court of the enjoined cannon in Section 122 of the Act of given the minority of the then minor donees hence theirs standing incompetent to personally accept delivery of possession of the corpus of the gift disclosed in Ext.DW-1/A of hence their respective fathers and natural guardians accepting on their behalf any delivery of possession thereof, standing unaccomplished. In sequel the sine qua non of Section 122 of the Act for validating Ext.DW-1/A has remained un-satiated. Furthermore the aforesaid inference gets a boost from the prime factum of the defendants respondents though espousing of in consonance thereto an order attesting mutation on the anvil of Ext. In sequel the sine qua non of Section 122 of the Act for validating Ext.DW-1/A has remained un-satiated. Furthermore the aforesaid inference gets a boost from the prime factum of the defendants respondents though espousing of in consonance thereto an order attesting mutation on the anvil of Ext. DW-1/A standing recorded in favour of the defendants by the revenue officer concerned yet any recording thereof would not give any succor to his contention of hence theirs holding possession of the corpus of the suit property in succession to its possession standing personally delivered to the then minor donees by the donor besides its satiating the mandate of Section 122 of the Act especially when personal possession thereof if any received/delivered to the then minor defendants for reasons assigned hereinabove does not constitute satisfaction of the conditions enumerated in Section 122 of the Act inasmuch as given their minority thereat theirs personally receiving its possession from the donor held no legal leverage in proof of their possession thereof rather proof of possession thereof standing accepted on their behalf by their respective fathers/natural guardians alone holding legal sinew for hence validating Ext.DW-1/A, proof whereof for reasons spelt out hereinabove is amiss. In aftermath Ext.DW-1/A suffers invalidation. Furthermore, with the defendants respondents omitting to place any material in display of the factum of at the time of attestation of mutation by the revenue officer in favour of the donees on the anvil of Ext. DW-1/A the revenue officer concerned eliciting the presence of the plaintiff appellant besides in display of the presence of the plaintiff appellant standing recorded thereat rather contrarily fosters an inference of the order recorded by the revenue officer concerned attesting on the anvil of Ext. DW-1/A mutation qua the suit property in favour of the defendants/respondents standing made by him in proceedings which stood arbitrarily drawn by him besides lacked the virtue of participation therein of the plaintiff respondent, sequelly its rather standing stained with the vice of its infracting the canon of audi alteram partem. Consequently, no sanctity can stand fastened to the unilaterally besides arbitrarily drawn mutation proceedings by the revenue officer concerned in course whereof he attested mutation of the suit property on the anvil of Ext.DW-1/A in favour of the defendants/respondents. Consequently, no sanctity can stand fastened to the unilaterally besides arbitrarily drawn mutation proceedings by the revenue officer concerned in course whereof he attested mutation of the suit property on the anvil of Ext.DW-1/A in favour of the defendants/respondents. As a sequitur, for reiteration when at the time of attestation of the apposite mutation by the revenue officer concerned, the plaintiff appellant did not record her presence before the revenue officer concerned, the order aforesaid reeks of the vice of its standing recorded behind the back of the plaintiff, rendering it to be nonest. Furthermore, thereupon the counsel for the defendant respondent cannot contend of at the time of attestation of the apposite mutation by the revenue officer concerned the defendants validly accepting through their respective fathers and natural guardians possession of the corpus of the property marked in Ext.DW-1/A from the donor nor can he hence contend of its standing imputed with any vigour of validation. Moreover, possession if any held of the suit property in sequel to the arbitrarily draw up unilateral proceedings of mutation by the revenue officer concerned wherein the plaintiff appellant remained absent on conclusion whereof the order of mutation of the suit property in favour of the defendants stood attested, obviously cannot also hold any validation nor can hence such possession constitute its being amenable to a construction of the plaintiff respondent volitionally delivering possession of the suit property to the defendants. In aftermath lack of volitional parting of by the plaintiff of possession of the corpus of the property divulged in Ext.DW-1/A rendered any purported acceptance thereof by the respective fathers/natural guardians on behalf of the then minors donees, to rather suffer a legal infirmity of its hence infracting the sine qua non, encapsulated in Section 122 of the Act especially when the apposite purported acceptance of possession of property divulged in Ext.DW-1/A rests upon a vitiated order of attestation of mutation qua the suit property recorded by the revenue officer concerned. 10. For the foregoing reasons, the substantial questions of law are answered in favour of the plaintiff-appellant. The judgement and decree rendered by the learned first Appellate Court is set-aside and the judgement and decree of the learned trial Court is affirmed and maintained. Decree sheet be prepared accordingly. The parties are left to bear their own costs. All the pending applications also stand disposed of. Records be sent back forthwith.