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2019 DIGILAW 492 (HP)

Dole Ram v. Khimi Ram

2019-04-29

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. Aggrieved by the judgment and decree passed by the learned first appellate Court whereby it set aside the judgment and decree passed by the learned trial Court, decreeing the suit of the plaintiff, the defendant-appellant has filed the instant second appeal. 2. The parties hereinafter shall be referred to as the "plaintiff" and the "defendant". 3. The plaintiff filed a suit for declaration to the effect that the gift deed No.32 executed by late Shri Ram Dass on 30.01.2004 and registered on 31.01.2004 in favour of the defendant, in respect of the suit land comprised in Khata Khatauni No.103/131-132, kita 26, measuring 3-19-8 bighas was jointly owned and possessed by the plaintiff and late Shri Ram Dass and the same was inherited by him from the mother of plaintiff, Smt. Nauja Devi, through inheritance i.e. through mutation No.1232 excluding his (plaintiff's) legal right and late Shri Ram Dass was his real brother. The suit land was 'Mitakshara' coparcenary property and since late Shri Ram Dass died intestate, therefore, plaintiff being the only legal heir was entitled to inherit his property. The defendant appears to have got mutation No.1727 entered in the revenue record on the basis of gift deed alleged to have been executed in his favour by late Shri Ram Dass, which too was assailed in the suit. 4. The defendant contested the suit by filing written statement wherein preliminary objections, inter alia, qua maintainability, cause of action, locus standi, non-joinder of necessary parties, valuation and non-compliance of notice under Section 80 CPC, were raised. On merits, it was denied that late Shri Ram Dass had left any property to be inherited by his legal heirs. Even though, the factum of joint ness of suit land and its cultivation was admitted by the defendant. The defendant claimed that legal and valid gift deed had been executed in his favour by late Shri Ram Dass and, therefore, the mutation has rightly been entered and sanctioned in his favour and prayed for dismissal of the suit. 5. On the pleadings of the parties, the learned trial Court framed the following issues:- "1. Whether the gift deed executed on dated 30/31-1-2004 by late Sh. Ram Dass in faovur of defendant is result of fraud and misrepresentation, as alleged? OPP. 2. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as alleged? OPP. 3. 5. On the pleadings of the parties, the learned trial Court framed the following issues:- "1. Whether the gift deed executed on dated 30/31-1-2004 by late Sh. Ram Dass in faovur of defendant is result of fraud and misrepresentation, as alleged? OPP. 2. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as alleged? OPP. 3. Whether the plaintiff is the only legal heir to inherit the property of late Sh. Ram Dass? OPP. 4. Whether the plaintiff has no cause of action to file the present suit against the defendant? OPD. 5. Whether the plaintiff has no locus standi to file the present suit against the defendant? OPD. 6. Whether the suit is bad for non-compliance of the provisions of Section 80 of CPC? OPD. 7. Whether the suit is bad for non-joinder of necessary parties? OPD. 8. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD. 9. Whether the suit is not maintainable in the present form against the defendant? OPD. 10. Relief." 6. After recording evidence and evaluating the same, the learned trial Court dismissed the suit constraining the plaintiff to file an appeal before the learned first appellate Court which, as observed above, came to be allowed vide judgment and decree dated 30.09.2005, leading to filing of the present appeal at the instance of the defendant. 7. On 04.11.2005, this appeal was admitted on the following substantial questions of law:- "1. Whether provisions of Section 123 of the Transfer of Property Act, as well as provisions of Section 68 of the Indian Evidence Act have been misconstrued and misread? 2. Whether the respondent had no locus-standi to maintain suit to get the gift-deed Exhibit PW-1/A executed by Late Shri Ram Dass in favour of defendant/appellant on 30.1.2004 which he got registered in the office of Sub Registrar, Ani on 31.1.2004? 3. Whether Lt. Shri Ram Dass having not disputed the validity of the Gift-Deed Exhibit PW-1/A, therefore, the validity thereof cannot be challenged by the respondent? 4. Whether particulars of fraud and misrepresentation having not set up hence plaint is not in conformity with law?" 8. 3. Whether Lt. Shri Ram Dass having not disputed the validity of the Gift-Deed Exhibit PW-1/A, therefore, the validity thereof cannot be challenged by the respondent? 4. Whether particulars of fraud and misrepresentation having not set up hence plaint is not in conformity with law?" 8. Before proceeding to answer the substantial questions of law, it needs to be observed that in case gift deed is not held to be executed in accordance with the provisions of law while answering question No.1, then obviously, other questions would be rendered redundant and it is only if question No.1 is answered in favour of the defendant, then the other questions need to be gone into. Substantial Question of Law No.1. 9. Section 123 of the Transfer of Property Act (for short 'Act') deals with transfer. It provides that 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 and the same reads as under:- "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 movable 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." 10. The attestation as contemplated in the aforesaid section is provided for under Section 3 of the Act and reads thus:- "8["attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary:]" 11. The definition of the word 'attested' makes it clear that attestation in acknowledgement of execution is sufficient. The definition requires that the attesting witnesses should have signed in the presence of the executant. The essential conditions of a valid attestation under Section 3 of the Act are that, two or more witnesses must have seen the executant sign the instrument or have received from him personal knowledge of his signatures, and with a view to attest or to bear witnesses to this fact, each of them had signed the instrument in the presence of the executant. It is, therefore, essential that the witnesses should have put the signatures animo attestandi i.e. for the purpose of attesting he has seen the executant sign or has received from him personal acknowledgement of his signatures. However, if a person has put his signatures on the document for some other purpose, for instance, to certify that he is the scribe or an identifier or a registering officer, he is not an attesting witness. However, where a person is not only the scribe of the document, but he has also seen execution and signing of the said document, he could also be treated as an at testator of the said document with the required animus. Therefore, the scribe of the document can also be an attesting witness thereof, provided that he had signed the document with the required animus to attest. 12. It is vehemently argued by Shri G.D. Verma, Senior Advocate, assisted by Shri B.C. Verma, Advocate, for the appellant that since the execution of the gift deed was admitted by the donor, therefore, there was no requirement of any formal proof of the gift deed as it is settled that admission itself is the best proof and reliance is placed on Pentakota Satyanarayana and others versus Pentakota Seetharatnam and others, (2005) AIR SC 4362. It is further argued that since the gift deed was a registered document, therefore, the presumption of truth is attached to its due execution, particularly, when the Sub Registrar itself has attested the gift deed and could, therefore, be considered to be an attesting witness. There can hardly be any quarrel with the proposition laid down in the judgment cited by the learned Senior counsel, but the question is that does the ratio of this judgment apply to the present case. 13. There can hardly be any quarrel with the proposition laid down in the judgment cited by the learned Senior counsel, but the question is that does the ratio of this judgment apply to the present case. 13. No doubt, presumption of truth is attached to a registered document and even the scribe, identifier or for that matter even the Sub Registrar can be considered to be an attesting witness. But, did they really possess the requisite animo attestandi is a question, which is yet required to be considered. 14. There is a marked difference between technicality of law and the technical requirement of law. The technicality of law especially when pitted against substantial justice has to be construed very liberally while the technical requirement of law has to be strictly construed. If an act is statutorily required to be done in a particular manner, then the same can be done in that manner alone or not at all. 15. Once, the gift deed falls short of the statutory requirement, then even the admission qua execution of the same cannot clothe such gift with legality. The Sub Registrar in this case has not at all been examined and, therefore, the mere fact that there is endorsement on the gift deed by the Sub Registrar will not amount to attestation as contemplated under the Act. 16. At this stage, if one would advert to the gift deed in question i.e. Ex.PW-1/A, it would be noticed that the signatures of only one attesting witness and the other signatures appearing on the same are that of Anup Ram Document Writer, Pari Ram an identifier, Ram Dass executant, Dole Ram the beneficiary and Man Singh an attesting witness. Thus, it stands established on record that the gift deed is attested by only one attesting witness Man Singh. 17. However, Shri G.D. Verma, Senior Advocate, assisted by Shri B.C. Verma, Advocate, for the appellant, would urge that in this case not only the Document Writer, but even the identifier could be considered to be an attesting witness as the gift deed was duly executed in their presence and moreover they had the necessary animus to witness the said gift deed. 18. In this background, it will be necessary to advert to the statement of Pari Ram, who appeared in the witness box as DW-2. 18. In this background, it will be necessary to advert to the statement of Pari Ram, who appeared in the witness box as DW-2. He stated that he knew Ram Dass, who had executed the gift deed in favour of his relative, who was a shareholder, but he could not remember his name. The gift deed was scribed by a Document Writer in the month of 'Poh'. One attorney and one witness were present there and there were two beneficiaries of the gift deed. The executant Ram Dass was in good condition. He further stated that he had signed on the gift deed in Urdu language and identified his signatures on Ex. PW-1/A. He further deposed that the gift deed had been read over by the Document Writer and Ram Dass had presented the same before the Naib Tehsildar where he identified Ram Dass. 19. In cross-examination, he admitted that the attorney, who had got scribed the gift deed belonged to Jalodi, but he was not in a position to recollect his name. This witness further stated that it was at the instance of such attorney that he appended his signatures on the gift deed. However, he thereafter changed his statement and stated that he was present at Anni on which date Ram Dass along with his attorney was also present at Anni in the court premises during day time. He further stated that he had only visited Anni on one day when the gift deed was scribed and presented for registration. It is in the court premises that he met witness Man Singh and admitted that Man Singh was not earlier known to him, but denied the suggestion that Man Singh had not appended his signatures in his presence. However, he further stated that he was not knowing whether the gift deed had already been scribed, but then again changed his statement and stated that gift deed had been presented before the Naib Tehsildar. Lastly, he admitted that he did not know Ram Dass and further admitted that he was not in a position to state as to whether Ram Dass was the same person, who had in fact executed the gift deed, as he was only asked to sign the document. 20. Now, adverting to the statement of DW-3 Anup Ram, Document Writer. Lastly, he admitted that he did not know Ram Dass and further admitted that he was not in a position to state as to whether Ram Dass was the same person, who had in fact executed the gift deed, as he was only asked to sign the document. 20. Now, adverting to the statement of DW-3 Anup Ram, Document Writer. He categorically stated that he had scribed the gift deed at the instance of Ram Dass which was witnessed by Pari Ram and Man Singh. Ram Dass had appended his signatures on the gift deed and at Sr. No.19 of his register. Ram Dass at that time was hale and hearty. The gift deed was read over to Ram Dass, who thereafter signed the same. He further stated that Ram Dass was known to him. 21. In cross-examination, the witness stated that he was not aware on which date the gift deed had been presented for registration before Registrar as he after scribing the gift deed had handed over the same. He could not tell whether Ram Dass had also executed an attorney. He was not in a position to tell as to who had called Pari Ram, Numberdar. 22. Now, in case one is to go through by the testimonies of both these witness i.e. DW-2 and DW-3, none of them can be considered to be the witness in terms of Section 3 of the Act as they lacked the requisite animo attestandi at the time when they put their signatures on the gift deed. 23. It has specifically come in the statement of DW-2 that he had put his signatures on the document for the purpose of identification. Moreover, in his cross examination, he has categorically admitted that he did not know Ram Dass and was not even sure whether the person, who had executed the gift deed, was Ram Dass or somebody-else as he had only been asked to sign on the document. This is clearly evident from his following statement:- ^^[kqn dgk fd eSa jkenkl dks u tkurk FkkA EkS u dg ldrk fd og jkenkl Fkk ;k dksbZ vkSj Fkk eq>s flQZ nLr[kr djus dk dgk x;k^^ 24. Now, adverting to the statement of DW-3 Anup Ram. This is clearly evident from his following statement:- ^^[kqn dgk fd eSa jkenkl dks u tkurk FkkA EkS u dg ldrk fd og jkenkl Fkk ;k dksbZ vkSj Fkk eq>s flQZ nLr[kr djus dk dgk x;k^^ 24. Now, adverting to the statement of DW-3 Anup Ram. He too at best can be considered as the scribe of the document alone, as he lacked the necessary animus to attest the gift deed in question as a witness. He has only stated that the gift deed was witnessed by Pari Ram and Man Singh and has in no manner elaborated the mode and manner in which they attested the gift deed. Such attestation definitely falls short of the requirement as envisaged under Section 3 of the Act. 25. That apart, it can conveniently be held that the gift deed in question has not been executed and attested in accordance with law. This is what precisely the learned first appellate Court has held. Once that be so, obviously then, no fault can be found with the findings so rendered by the learned first appellate Court. Accordingly, the substantial question of law No.1 is answered against the appellant. Substantial Questions of Law No.2 to 4. 26. In view of the answer to substantial question of law No.1, all these questions have rendered redundant and, therefore, need not to be answered. 27. In view of the aforesaid discussion, I find no merit in this appeal and accordingly the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.