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2022 DIGILAW 1004 (AP)

Penumatcha Satyanarayana Raju v. Matta Suseela

2022-10-12

B.S.BHANUMATHI

body2022
JUDGMENT : B.S. BHANUMATHI, J. 1. This appeal, under Section 96 CPC, is directed against the decree and judgment, dated 12.07.2018, passed in O.S. No. 219 of 2012 on the file of the Court of III Additional District Judge, Bhimavaram. 2. Heard Sri T. Vishnu Teja, learned counsel representing Ms. Jami Madhavi, learned counsel for the appellants/plaintiffs and Sri A. Sai Bhargav, learned counsel representing Sri P. Durga Prasad, learned counsel for the 1st respondent. The notices sent to the respondent Nos. 2 and 3 have been returned un-served with an endorsement ‘refused’ and thus, there is no appearance on their behalf. 3. The case of the plaintiffs, in brief, is as follows: (a) The plaint schedule property, viz. wet land of Ac. 0.34 cents in R.S. No. 231/3 of Bhimavaram municipal area, is the self acquired property of late Kamatam Isaku, who is the father of Isreal Raju and the said person, out of love and affection executed a settlement deed in favour of the said Isreal Raju, resident of Kovvada, Bhimavaram Mandal. As per the recitals of the settlement deed, dated 21.04.2004, the said Isreal Raju is the only son of the executants, and as such, the schedule property worth Rs. 72,000/- was given to the said Isreal Raju and possession of the property was also handed over on the date of the execution of the document. It is further recited in the said deed that the schedule property was not alienated to any other person and that in case of any dispute; the same shall be solved by the executant. From the date of the execution of the aforesaid document, Isreal Raju has been in possession and occupation of the schedule property with absolute right with knowledge of adjacent farmers, including the defendants 1 to 3. Isreal Raju, after enjoying the property for some time, sold away the schedule property in favour of the plaintiffs for a consideration of Rs. 17,00,000/- and executed a sale-deed in favour of the plaintiffs on 25.04.2012. It is clearly recited in the said document, dated 25.04.2012, that the schedule property is not fetching any income and possession of the property was delivered on the date of execution of the document itself. Thus, the plaintiffs are in possession and enjoyment of the schedule property with absolute rights from the date of execution of the sale deed, dated 25.04.2012. Thus, the plaintiffs are in possession and enjoyment of the schedule property with absolute rights from the date of execution of the sale deed, dated 25.04.2012. (b) While so, as the plaintiffs are staying away from the schedule property, the defendants hatched a plan to grab the property one way or the other and as such, the 1st defendant who is the sister of Isreal Raju, started causing hindrance wrongly claiming that she has right in the schedule property. The 2nd defendant is the cousin of the father of the plaintiffs’ vendor and the 3rd defendant is the son of the 2nd defendant. The defendants are threatening that they would occupy the property at any time. They also tried to enter the schedule property on one or two occasions. The plaintiffs, apprehending danger to their person and property in the hands of the defendants, filed the suit for declaration that the vendor of the plaintiffs is the absolute owner of the plaint schedule property and that the registered gift settlement deed, dated 21.04.2004, executed by late Kamatam Isaku is binding on the defendant No. 1 and to pass a consequential injunction restraining the defendants 1 to 3 along with relations and friends, farm servant’s assignees to interfere with the plaintiff’s peaceful possession and occupation of the schedule property in any way manner or in any manner. 4. The 1st defendant filed written statement denying the plaint averments and contending that the plaintiff (sic. PW-5) completely deserted and neglected his father and he used to abuse and scold him and thereby, the father of the 1st plaintiff (sic. PW-5 and 1st defendant) took shelter at the house of the 1st defendant. The 1st defendant and her family members served her father with love and affection and provided medical treatment by spending huge amounts. As such, late Kamatam Isaku, out of love and affection and in a sound and disposing state of mind, executed a registered Will, on 24.03.2005, in favour of the 1st defendant bequeathing the plaint schedule property. Ever since, the 1st defendant is in physical possession and enjoyment of the schedule property by paying revenue taxes. The 1st defendant being unable to cultivate the schedule property personally, leased out the same to the 2nd defendant and the 2nd defendant is continuing as a tenant by paying makthas to this defendant. Ever since, the 1st defendant is in physical possession and enjoyment of the schedule property by paying revenue taxes. The 1st defendant being unable to cultivate the schedule property personally, leased out the same to the 2nd defendant and the 2nd defendant is continuing as a tenant by paying makthas to this defendant. This defendant is an aged woman and is eking out her livelihood over the said lease amount as there is no other source of income to her. Isreal Raju, i.e. vendor of the plaintiffs, with a dishonest and fraudulent intention, abetted the 2nd defendant against the 1st defendant and got filed a case in A.T.C.No. 4 of 2012 on the file of the Special Officer-cum-Principal Junior Civil Judge, Bhimavaram, not to interfere with the tenancy rights of the 2nd defendant and the matter is still pending. The vendor of the plaintiffs, namely, Kamatham Isreal Raju, with a dishonest and fraudulent intention and in order to cause unlawful loss to this defendant, obtained the settlement deed, dated 21.04.2004, from his father by use of fraud, coercion and undue influence. Hence, the said settlement deed is a fraudulent document. The plaintiffs with a mala-fide intention might have obtained the sale deed, dated 25.04.2012, from Isreal Raju under the guise of the settlement deed, dated 21.04.2004. In fact, Isreal Raju, vendor of the plaintiffs, has no title over the schedule property, and therefore, he cannot convey a better title to the plaintiffs. The schedule property is still under the possession and enjoyment of this defendant, being cultivated by the 2nd defendant. The sale deed, dated 25.04.2012, indicates that the brother of this defendant is the person who is behind creation of the sale deed in favour of the plaintiffs with a dishonest intention and the plaintiffs, in no way, perfected their title over the schedule property. Hence, the sale deed dated 25.04.2012 is void ab initio and is non est in the eye of law. The plaintiffs are not entitled to seek declaration on the basis of the said document. The suit is not maintainable and is liable to be dismissed in limini. 5. The defendants 2 and 3 filed written statement reiterating the averments made in the written statement filed by the 1st defendant. 6. The plaintiffs are not entitled to seek declaration on the basis of the said document. The suit is not maintainable and is liable to be dismissed in limini. 5. The defendants 2 and 3 filed written statement reiterating the averments made in the written statement filed by the 1st defendant. 6. Basing on the above pleadings, the following issues were framed for trial: (1) Whether the plaintiffs are entitled to get declaration that plaint schedule property is the absolute property of the vendor of plaintiff and that the settlement deed, dated 21-4-2004 executed by late Kamatam Issak is binding on D-1? (2) Whether plaintiffs are in possession of plaint schedule property? (3) If so, where such possession is lawful? (4) Whether the plaintiffs are entitled to get permanent injunction, restraining the defendants from interfering with their possession? (5) To what relief? 7. The plaintiffs 1 and 2 were examined as PWs. 1 and 2. The 1st attestor was examined as PW-3, Kocharlapati Venkata Srinivas Raju was examined as PW-4 and Kamatam Isreal Raju was examined as PW-5. Exhibits A1 to A6 were marked on behalf of the plaintiffs. On behalf of the defendants, the 1st defendant was examined as DW-1, the scribe of the Will was examined as DW-2, the son of the 1st attestor of the Will was examined as DW-3, the second attestor of the Will was examined as DW-4, and the 2nd defendant was examined as DW-5. Though one Dayam Asirvadam filed his affidavit in lieu of examination-in-chief as DW-6, the same was eschewed as he failed to appear for cross-examination. 8. On a consideration of the entire evidence, both oral and documentary, and on hearing the submissions of the learned counsel appearing for the parties, the trial Court dismissed the suit of the plaintiffs. 9. Though one Dayam Asirvadam filed his affidavit in lieu of examination-in-chief as DW-6, the same was eschewed as he failed to appear for cross-examination. 8. On a consideration of the entire evidence, both oral and documentary, and on hearing the submissions of the learned counsel appearing for the parties, the trial Court dismissed the suit of the plaintiffs. 9. The aggrieved plaintiffs preferred this appeal reiterating their pleaded case and further contending that the trial Court misread the pleadings of the defendants and had erroneously observed that there is a dispute as regards the execution of the gift settlement deed, that the trial Court failed to consider exhibits A5 and A6 which establish possession of the plaintiffs over the schedule property, that the findings of the trial Court on exhibit A1 are unsustainable, that the decree and judgment of the trial Court are unsustainable for not considering the evidence of the defendants in the cross-examination, that the trial Court failed to assign cogent reasons for relying on the evidence of the defendants, that the reasoning of the trial Court is erroneous and that the decree and judgment impugned in the appeal are liable to be set aside. 10. The case of the plaintiffs is mainly dependent on the validity of the gift deed, dated 21.04.2004. Since it is a document which mainly requires attestation as per Section 123 of the Transfer of Property Act, it is argued that the document can be proved as per Section 68 of the Indian Evidence Act, 1872, but, since the plaintiffs failed to examine one of the attestors, the trial Court rightly held that the document was not proved. 11. For the purpose of better appreciation, it is apropos to refer to Section 68 of the Evidence Act, which reads as under: “68. 11. For the purpose of better appreciation, it is apropos to refer to Section 68 of the Evidence Act, which reads as under: “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.” 12. A plain reading of the aforesaid provision indicates a general rule that a document which requires to be attested shall be proved by examining at least one of the attestors in the circumstances indicated therein. However, exceptions are carved out in the proviso appended to the Section. If such document is registered, the general rule has no application. Again this rule is also not absolute since it has two riders, viz. one that it is not a Will and two, the execution by the executor is specifically denied in case of document other than a Will’. For example, if the document purported to be proved is a Will, irrespective of the fact that it is registered and its execution is denied or not, one attesttor at least (subject to conditions mentioned) shall be examined. But in case of any other document which requires compulsory attestation, if such document is registered, there is no requirement of normal rule, if there is no specific denial of its execution. Even in respect of such registered document, normal rule applies if its execution by the person purported to have executed is specifically denied. A careful reading of the proviso indicates that it need not be denied by the executor. What is required is denial of execution by the person purported to have executed, and not denial by the person purported to have executed about execution. Thus, the denial required is regarding execution by a specified person and not denial by a specified person. 13. What is required is denial of execution by the person purported to have executed, and not denial by the person purported to have executed about execution. Thus, the denial required is regarding execution by a specified person and not denial by a specified person. 13. The learned counsel for the appellants contend that in case of gift made under a registered deed, unless there is specific denial of execution, there is no need of examining one attesting witness at least and relied on the following decisions: (i) In Govindbhai Chhotabhai Patel vs. Patel Ramanbhai Mathurbhai, (2020) 16 SCC 255 at paragraph No. 23, it was held as follows: “23. A gift deed is required to be compulsorily attested in terms of Section 123 of the Transfer of Property Act, 1882. Similar is the provision in respect of execution of a Will which is required to be attested in terms of Section 63 of the Indian Succession Act, 1925. Section 68 of the Evidence Act makes it mandatory to examine one of the attesting witnesses for the purpose of proving of the execution of Will but such limitation is not applicable in respect of proof of execution of any document which has been registered in accordance with provisions of the Indian Registration Act, 1908, unless the execution is specifically denied.” He further contended that there is no specific denial by the defendants in the written statement about execution of the gift, as they contend only that it was obtained by fraud etc. and thus it is not necessary to examine an attesting witness and relied the decision in Uttam Chand Kothari vs. Gauri Shakar Jalan and Others, AIR 2007 Gau 20 wherein, at paragraph Nos. 15 and 27, it was held as follows: “15. From a careful reading of Order VIII, Rules 3, 4 and 5, it clearly emerges that when an allegation of a fact, made in the plaint, is not denied, in a written statement, specifically or by necessary implication or is not stated to have not been admitted, such a pleading will constitute an implied admission. In short, evasive denial or non-specific denial constitutes an implied admission in a judicial proceeding of civil nature. In short, evasive denial or non-specific denial constitutes an implied admission in a judicial proceeding of civil nature. This does not, however, mean, I must hasten to add, that an implied admission must necessarily occur in a judicial proceeding, for, it is possible to make an implied admission, otherwise than in a judicial proceeding, in terms of the provisions of the Evidence Act. Whether there is an implied admission or not is, usually, a question of fact or may, in a given case, be a mixed question of fact and law. An express admission is one which is specifically made, either in a judicial proceeding or otherwise, in accordance with the provisions of the Evidence Act. However, in order to determine if an admission has been made in a written statement, the written statement has to be read as a whole.” “27. Order VIII, as it stood before the same underwent amendment in 1976, came up for interpretation before a 3-Judges Bench of the Supreme Court, in Badat and Co. vs. East India Trading Co. (1964) 4 SCR 19 . Referring to Order VIII, Rules 3, 4 and 5, the Supreme Court, at paragraph 11, observed and held as follows: “These three rules form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its noncompliance. The written statement must deal specifically, with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary.......” (iii) In Adanganpuravan Assankutty's Daughter Kadiya Umma and Others vs. Adanganuravan Rayankutty's Son and Others, AIR 1992 Ker 261 , it was held at paragraph Nos. 9, 11 and 13 as follows: “9. This leads me to the question whether there is specific denial of the execution as contemplated in the Proviso to Section 68 of Evidence Act, in the averments referred to above. In Aiyar’s Judicial Dictionary, 9th Edition, page 912, the meaning given to the word ‘specific’ is what is precise, exact, definite and explicit. Concise Oxford Dictionary gives the meaning definite and distinctly formulated. In Aiyar’s Judicial Dictionary, 9th Edition, page 912, the meaning given to the word ‘specific’ is what is precise, exact, definite and explicit. Concise Oxford Dictionary gives the meaning definite and distinctly formulated. In New Webster’s Dictionary of the English Language, the meaning given to the word ‘specific’ is explicit or definite, to be specific in one’s statements, specified, precise or particular, etc. 11. A Division Bench of this Court had occasion to consider the meaning of the expression ‘specific’ used in the Proviso to Section 68 of Evidence Act in Kannan Nambiar vs. Narayani Amma, 1984 KLT 855 . It observed: ‘Specific’ means with exactness, precision in a definite manner. It is clear that something more is required to connote specific denial in juxtaposition to general denial. Specific denial of execution of gift is an unambiguous and categorical statement that the donor did not execute the document. It means not only that the denial must be in express terms but that it should be unqualified, manifest and explicit......Other contentions not necessarily and distinctly referring to the execution of the document by the alleged executants cannot be gathered, for the denial contemplated in the proviso. In the case before the Division Bench, in Para 4 of the written statement, the defendants alleged that it was not true that Anandan Nambiar (the donor in that case) gave a gift to Lakshmi Amma (the donee in that case) and the plaintiff obtained that right from Lakshmi Amma, that to the knowledge of defendants 7 to 12, Anandan Nambiar with his free will and volition had not made any gift deed and that the alleged gift deed is a document created by exerting undue influence. In conclusion, it was stated that the document is not legal and valid. It was argued that a reading of Para 4 of the written statement as a whole would show that there is a specific denial of the execution of the gift deed. That argument was repelled by the Division Bench saying that denial of execution is not express, definite and manifest. 13. In Yakubkhan Daimkhan Serguro vs. Guljarkhan Abdulkhan, AIR 1928 Bom. 267 a Division Bench of Bombay High Court held that where the execution of a document is not specifically denied, it is not strictly necessary for the party proving that document to call an attesting witness in proof of execution of it.......” 14. 13. In Yakubkhan Daimkhan Serguro vs. Guljarkhan Abdulkhan, AIR 1928 Bom. 267 a Division Bench of Bombay High Court held that where the execution of a document is not specifically denied, it is not strictly necessary for the party proving that document to call an attesting witness in proof of execution of it.......” 14. Keeping in view the above propositions, when the present case is examined, the pleadings and evidence indicate that there is no denial of execution of the gift deed by the father of the 1st defendant, but, on the other hand, it is alleged to have been obtained by use of fraud, coercion, undue influence, mistake and misrepresentation. Therefore, it is erroneous to hold that the gift deed is not proved as per Section 68 of the Indian Evidence Act, 1872. When once transfer of title inter vivos is affected during the life time of the father of the 1st defendant in favour of the vendor of the plaintiffs, he did not have any right left in the property to pass on to his daughter through his testament, i.e. the Will, dated 24.03.2005. As such, the plaintiffs purchased the property from the brother of the 1st defendant for a valid consideration. However, the plaintiffs sought only declaration of title of the vendor of the plaintiffs in the suit schedule property by virtue of gift settlement deed, dated 21.04.2004. By virtue of the same, they held possession of the suit schedule property. In spite of the gift deed executed very long back, the vendor of the plaintiffs has not got his name mutated in the concerned registers. 15. Both the plaintiffs and the defendants have filed land revenue receipts. The plaintiffs filed exhibit A6, land revenue receipt, dated 06.07.2011, whereas, the defendants filed exhibits B5 and B6, dated 11.07.2012, which are duplicate land revenue receipts. The defendants could not show how they were allowed to pay land revenue subsequent to the payment of the same earlier by the plaintiffs under exhibit A6. They have also not filed any record showing mutation of their names. Since the schedule property is a vacant site, the principle that ‘possession follows title’ can be adopted, apart from the oral evidence. As such, the plaintiffs are entitled to the relief of permanent injunction also. They have also not filed any record showing mutation of their names. Since the schedule property is a vacant site, the principle that ‘possession follows title’ can be adopted, apart from the oral evidence. As such, the plaintiffs are entitled to the relief of permanent injunction also. For all the aforesaid reasons, this Court finds that the decree and judgment of the trial Court are liable to be set aside. 16. In the result, the appeal is allowed setting aside the decree and judgment, dated 12.07.2018, of III Additional District Judge, Bhimavaram, passed in O.S. No. 219 of 2012. 17. There shall be no order as to costs. 18. Miscellaneous Petitions pending, if any, shall stand closed.