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2017 DIGILAW 235 (KER)

Christudas v. Ponnumuthu Nadar

2017-02-01

K.HARILAL

body2017
JUDGMENT : K. Harilal, J. 1. The appellant is the plaintiff in O.S No. 447 of 1987 on the files of the Principal Munsiff's Court, Nedumangad. The aforesaid suit was filed, seeking cancellation of Ext. A1 Gift Deed, with respect to his half share and partition of the plaint schedule property. According to the plaintiff, the plaint schedule property belonged to the plaintiff's grandmother by name 'Ooli', who executed a settlement deed in the year 1120 M.E., in favour of the plaintiff, the 1st defendant and their brother 'Raghavan Nadar'. Subsequently, the said 'Raghavan Nadar' died and thereby, the plaintiff and the 1st defendant became the owners in possession of the plaint schedule property. Hence, the plaintiff demanded partition and separate possession of his half share. Then, the 1st defendant refused the said demand, contending that the plaintiff and the 1st defendant had already gifted the plaint schedule property to the 2nd defendant on 24.03.1950, by virtue of Ext. A1 Gift Deed. Further, the plaintiff contended that Ext. A1 Gift Deed is a fraudulent one, forging the signature of the plaintiff and thereby, Ext. A1 is not binding on him. Since the existence of Ext. A1 Gift Deed created a cloud, the appellant filed the aforesaid Suit with the aforesaid prayers. 2. The defendants in the written statement, denied the averment that Ext. A1 was fraudulently created forging the signature of the plaintiff, According to the defendants, after the death of 'Raghavan Nadar', the plaintiff and the 1st defendant were in joint possession of the plaint schedule property and while so, they gifted the property to the 2nd defendant, by Ext. A1 and thereby, the title and possession over the property, including the building therein was passed to the 2nd defendant and the 2nd defendant had effected mutation in her name and paid tax and has been enjoying the property, as full owner in possession. Subsequently, the 2nd defendant has given the properties to her children, as per settlement deed and now, they are in possession and enjoyment of the plaint schedule property, along with other properties. The plaintiff has executed Ext. B3 Cancellation Deed with an intent to cancel Ext. A1 But, Ext. A1 had already come into force by acceptance of the gift by the donee on the date of execution itself. 3. The plaintiff has executed Ext. B3 Cancellation Deed with an intent to cancel Ext. A1 But, Ext. A1 had already come into force by acceptance of the gift by the donee on the date of execution itself. 3. On the aforesaid rival pleadings, both parties adduced evidence consists of the oral testimony of PWs 1 and 2 and DW1 and Exts. A1 and B1 to B10(a). After considering the evidence, on record, the trial court dismissed the suit, mainly on a finding that the suit is barred by limitation and oral and documentary evidence on the side of the defendants will prove that by virtue of Ext. A1 Gift Deed, title and possession had been passed to the 2nd defendant and thereby, Ext. A1 Gift Deed had been accepted and acted upon. 4. In Appeal Suit No. 92 of 1996 on the files of the Sub Court, Nedumangad, the lower appellate court re-appreciated the evidence, on record, in view of the findings of the trial court and concurred with the findings of the trial court and dismissed the Appeal. Thus, the concurrent findings, whereby the courts below dismissed the suit, on the question of limitation and proof of acceptance of Ext. A1 Gift Deed, have come up for consideration of this Court, on the basis of the questions of law shown in the Memorandum of Appeal. 5. Heard the learned counsel for the appellant. 6. The learned counsel for the appellant mainly focussed on two points. Firstly, it is contended that when fraud is alleged by one of the donors, it was incumbent upon the 2nd defendant, the donee to prove the Gift, as contemplated under S. 68 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Act').Thus, Ext. A1 Gift Deed was not proved, as required under law. The learned counsel for the appellant drew my attention under S. 68 of the Act to fortify the aforesaid argument. The substantial question of law arises for consideration is, have not the courts below erred in finding that Ext. A1 Gift Deed accepted and acted upon, when the gift was not proved, as required under S. 68 of the Act? 7. It is the case of the plaintiff that he has not executed Ext. A1 Gift Deed and the same was got executed fraudulently, by forging the signature of the plaintiff. A1 Gift Deed accepted and acted upon, when the gift was not proved, as required under S. 68 of the Act? 7. It is the case of the plaintiff that he has not executed Ext. A1 Gift Deed and the same was got executed fraudulently, by forging the signature of the plaintiff. Thus, one of the donors himself denied the execution of Ext. A1 Gift Deed. "Gift is an instrument, which is required to be attested by at least two witnesses" under S. 123 of the Transfer of Property Act, 1882 (hereinafter referred to as 'the T.P. Act'). Thus, the question in controversy centers around under S. 123 of the T.P. Act and S. 68 of the Act, which are extracted as given below: "123. Transfer how effected. - For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered." "68. Proof of execution of document required by law to be attested. - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] 8. On a combined reading of Sections 123 of the T.P. Act and 68 of the Act, the proposition that can be culled out is that where the donor himself denies the execution of the Gift Deed, it is incumbent upon the donee to prove the execution and acceptance of the gift, by examining, at least, one of the attesting witnesses of the Gift Deed, as contemplated under S. 68 of the Act. 9. When applying the above principle to the instant case, it is not disputed that none of the attesting witnesses was examined, in evidence, to prove the execution of the Gift Deed. It follows that unless the execution of the Gift Deed is proved, no reliance could have been placed on Ext. A1 Gift Deed, to arrive at a finding that the plaintiff has executed Ext. A1 Gift Deed, along with the 1st defendant. But, the courts below went wrong by finding that Ext. A1 Gift Deed was executed, accepted and acted upon. In the above view, Ext. A1 Gift Deed requires examination of, at least, one of the attesting witnesses to prove the execution of the gift in evidence. In other words, the Original Suit requires remand, for adducing further evidence. 10. But, the more important question to be considered is, whether the trial court is justified in finding that the suit was barred by limitation? Admittedly, the suit is filed for a decree, cancelling Ext. A1 Gift Deed and as rightly found by the trial court, under Article 59 of the Limitation Act, 1963, is applicable to the case on hand. According to Article 59 of the Limitation Act, 1963, to cancel or set aside an instrument or decree or for the rescission of a contract, the period of limitation is three years and the time begins to run when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. In the instant case, the suit was instituted on 07.10.1987. Ext. B3 cancellation deed executed, by the plaintiff shows that the fact of entitlement to cancel Ext. A1 Gift Deed came into his knowledge on 18.07.1983, the day on which he executed Ext. B3. Needless to say, the suit has been instituted after the period of three years. In the instant case, the suit was instituted on 07.10.1987. Ext. B3 cancellation deed executed, by the plaintiff shows that the fact of entitlement to cancel Ext. A1 Gift Deed came into his knowledge on 18.07.1983, the day on which he executed Ext. B3. Needless to say, the suit has been instituted after the period of three years. Hence, the courts below are justified in finding that the suit is barred by limitation. Since the suit itself is barred by limitation, no purpose will be served by remanding the case back to the trial court, for examination of one of the attesting witnesses, under S. 68 of the Act to prove the gift. In the above analysis, this Appeal would fail and no other question of law requires to be considered in this Appeal. Hence, this Appeal is dismissed. All pending Interlocutory Applications will also stand closed.