Topic: Giano vs Puran And Ors
Giano vs Puran And Ors
Equivalent citations: AIR 2006 P H 160, (2006) 142 PLR 46 - Bench: M Kumar - 30 August, 2005
M.M. Kumar, J.
1. This order shall dispose of R.S.A. No. 2447 of 1995 and R.S.A. No. 2434 of 2001. Parties in both the appeals are the same. The first appeal (for brevity "the first case") arises from a civil suit filed by the plaintiff-appellant Smt. Giano in which she has prayed for possession of 1/2 share of the suit land on the basis of a registered gift deed-No. 1754 dated 3.9.1974. She has further prayed for possession of l/9th share in the other part of the suit land on the basis of inheritance claiming herself to be the daughter of one Mai Dhan, whose estate is subject matter of the dispute. There are two judgments and decree in favour of the defendant-respondents, namely, Puran and Jage Ram, who are admittedly sons of Mai Dhan. Those judgments and decrees dated 31.7.1981 suffered by her father Mai Dhan in favour of her brother Jage Ram in Civil Suit No. 459 of 1981 and the other judgment and decree is in favour of her other brother in Civil Suit No. 56 of 1980. Consequently, mutation Nos. 1659 and 1764 have also been challenged being illegal and void etc. The other appeal (for brevity "the second case") has arisen out of the civil suit filed by Puran and Jage Ram (who are referred to as defendant-respondents). Both the brothers had claimed to be exclusive possession owners in possession of another piece of land, which is different than the land involved in first case on the basis of the jamabandi for the year 1990-91. They have also challenged the order dated 31.1.994 passed by the Assistant Collector 1st Grade, Panipat sanctioning mutation No. 2145 in favour of the plaintiff-appellant and challenge has also been made to the order dated 16.5.1996 passed by the Commissioner, Rohtak upholding the order of the Assistant Collector, 1st Grade. The revenue authorities have sanctioned l/3rd share of the suit land involved in the second case by accepting the plaintiff-appellant as owner being daughter of Mai Dhan. The question of relationship of Smt. Giano plaintiff-appellant with Mai Dhan has been disputed by the defendant-respondents and is common feature in both the appeals. Both the appeals have been filed under Section 100 of the Code of Civil Procedure Code, 1908.
2. The estate of one Mai Dhan is the subject matter of dispute in the instant appeal. It is admitted fact that Mai Dhan had two sons, namely, Puran and Jage Ram. There is dispute as to whether the plaintiff-appellant Smt. Giano is their real sister or she was born out of the wedlock of her mother with one Hira, who had died. After the death of Hira, her mother Bhagwani is alleged to have contacted a karewa marriage with Mai Dhan. It is pleaded case of the defendant-respondents that they were born after the solemnization of kareva marriage of Bhagwani with their father Mai Dhan. The plaintiff-appellant has strongly relied upon a gift deed dated 3.9.1974 executed by Mai Dhan gifting her 1/2 share of the suit property. The original gift deed is alleged to be in possession of Puran, who did not produce it. Certified copy of the gift deed has been produced on record by Shri Kuldeep Singh, Registry Clerk PW3 from the office of the Sub Registrar, which has been exhibited as PW3/1. The trial Court after the completion of pleadings framed numerous issues. Issues No. l to 6, which are pivotal into controversy raised between the parties read as under:
1. Whether the plaintiff is the daughter of Mai Dhan? OPP
2. Whether the suit of the plaintiff is within time OPP
3. Whether Mai Dhan gifted 40K-5M of agriculture land being 1/2 share of 80K-10M of agricultural land as detailed and describing in the head note of the plaint vide registered gift-deed No. 1754 dated 3.9.74? OPP.
4. Whether the judgment and decree passed in Civil Suit No. 56 of 1980 titled Puran Singh etc. vs. Mai Dhan and judgment and decree in Civil Suit No. 459 of 1981 are liable to be set-aside as per the averment made in the plaint? OPP
5. Whether the defendants No. l and 2 are in cultivating possession as owners of the suit land. If so to what effect? OPP.
6. Whether the gift-deed has never been accepted upon. If so to what effect? OPP
3. The trial Court in its judgment and decree dated 17.2.1995 has recorded a categoric finding that the plaintiff-appellant is daughter of Mai Dhan and the claim of the defendant-respondents that she was born to Bhagwani, their mother has been rejected. The basis of the aforementioned finding is the statement of the plaintiff-appellant, who appeared as PW1, Amar Singh PW5 and defendant-respondent No. 2 Jage Ram, who appeared as DW1. The view of the trial Court is discernible from para No. 7, which deserves to be reproduced in extenso and the same reads as under:-
7. In order to carry out the burden of proof in this issue, the plaintiff has categorically asserted herself to be the daughter of Mai Dhan and the defendants No. l and 2 her brothers. But the defendants No. l and 2 in heir written statement have denied the plaintiff to be the daughter of Mai Dhan, who admittedly was their father. The plaintiff while appearing in the witness-box as PW1 has affirmed on oath that she is the daughter of Mai Dhan and that the defendant No. l and 2 are her real brothers. While standing up to the test of the rigorous cross-examination she has proved the name of her mother to be Bhagwani. Similarly PW5 Amar Singh has affirmed that he knows the parties to the suit and that Giano is younger than Puran and Jage Ram, who are the children of Mai Dhan. The defendant No. 2 while appearing as DW1 has admitted in the cross-examination that Bhagwani is his mother and that Bhagwani had three children, namely Puran, Jage Ram and Giano. The defendant No. l while appearing as DW1 has stated in his examination-in-chief that Bhagwani was their mother and Mai Dhan, the father. The defendant No. l has also stated the name of the father of the plaintiff to be one Heera. But the defendants have not adduced any evidence to show that Heera was her father. In the event of clear admission on the part of Jage Ram, DW1, who happens to be the defendant No. 3, it can be safely concluded that the plaintiff is the daughter of Mai Dhan. This observation has been further corroborated by the document Ex.PY, the decision of the Collector dated 13.9.94 wherein it has been observed that the defendants have admitted Giano to be the daughter of Mai Dhan and as such there remains nothing to doubt that Giano is the daughter of Mai Dhan. The issue is decided in favour of the plaintiff.
4. On the issue of limitation, the suit has been found to be within time and it has been held as under:
8. The present suit has been filed on 2.9.86 and the reason as explained by the plaintiff is that she came to know about the impugned judgments and decrees only then. There is a clear allegation in the plaint that the defendants refused to admit her claim on 30.8.86 and the plaintiff has stated that after the delivery of the gifted property vide gift-deed dated 3.9.74, the plaintiff cultivated the same upto Rabi, 1980. Thereafter she handed over the suit property to the defendants on 1/3 batai which was paid upto Rabi, 1984. As such the suit filed on 2.9.86, is well within the period of limitation prescribed by law and the issue is decided in favour of the plaintiff.
5. On another vital issue of the validity of the registered gift deed and the judgments and decrees passed in favour of the defendant-respondents suffered by Mai Dhan, the trial Court held the gift deed to be a valid document. The views of the trial Court on the aforementioned issue read as under:-
9. Both these issues, being upon the plaintiff to prove are interconnected and are being disposed of together. The plaintiff while appearing as PW1 has testified her pleading to the effect that the property measuring 40K-5M being 1/2 share of the agricultural land was gifted to her by Mai Dhan vide registered gift-deed bearing No. 1754 dated 3.9.74. It has also come in evidence that the original gift-deed was handed over by the plaintiff to the defendants for getting the mutations sanctioned in her name and that the original document was never returned to the plaintiff, constraining the plaintiff to move an application for leading the secondary evidence to prove the gift-deed. After obtaining the permission for doing so by the Civil Court, the plaintiff got the gift-deed proved by examining Kuldeep Singh, the registry Clerk, who while appearing as PW3 had brought the summoned record from the office and proved the certified copy of the gift-deed which is Ex.PW3/l. The contents of the gift-deed clearly show that the possession was delivered to the plaintiff.
6. The trial Court has further held that the suit land was purchased vide sale deed dated 6.11.1968 from Amar Singh and Ex.D1 mutation was entered in the revenue record, which shows Mai Dhan to be a co-sharer of the property purchased by him along with his two sons, namely, Puran and Jage Ram. It has, therefore, been proved that the property was purchased by Mai Dhan in equal share and he became absolute owner of the property to the extent of his share, ft was thus held that Mai Dhan was the absolute owner of the suit property gifted by him to the plaintiff-appellant. No evidence is stated to have been brought on record proving that Mai Dhan was not competent to gift his share to the plaintiff-appellant. The trial Court further held that the gift was accepted by the plaintiff-appellant and she was fully aware of the gift-deed executed in her favour as he had also thumb marked the gift-deed. She was also held in possession of the gifted property as she has been found in possession of the gift-deed Ex.PW3/l. The learned trial Court has further held that the delivery of possession of gifted immovable property is not required by law and in this regard has placed reliance on a judgment of this Court in the case of Pishori Lal v. Smt. May a Devi, 1973 P.L.J. 323.
7. On the other issue concerning the judgments and decrees suffered by Mai Dhan in favour of his two sons, namely, Puran and Jage Ram defendant-respondents, the trial Court has held that their stand of family settlement is not very clear from the record of the two cases, which was summoned. If it was a family settlement by way of partition of a property then the share of Mai Dhan has not been specified. It is obvious that the judgments and decrees suffered by Mai Dhan was an event much after the execution of the gift-deed dated 3.9.1974. The stand taken by the defendant-respondents is that they had paid the whole sale consideration at the time of purchasing the land from Amar Singh vide sale deed dated 6.11.1968. The trial Court has found that the aforementioned plea has not been set up as a ground when the decrees in Civil Suit No. 459 of 1981 titled Mange Ram v. Mai Dhan and the others Civil Suit No. 56 of 1980 titled Puran Singh v. Mai Dhan were passed. It is also evident that the plaintiff-appellant was not a party in both the civil suits and as such those decrees had not been held binding on her.
8. On issue No. 5 concerning cultivating possession of the defendant-respondents as owners, the trial Court has held that the defendant-respondents have not been able to prove their ownership over the suit land. The views of the trial Court in this regard read as under:
Besides Ex.D1, placed on record by the defendants clearly shows that the suit property to have been purchased in equal shares, in which Mai Dhan has been depicted to be a co-sharer. Similarly, Ex.D7 which is the revenue record in form of jamabandi of the year, 1990-91 shows the ownership of Mai Dhan against which the defendants have not been able to prove that the land, in question was purchased by him or from their funds, given to Mai Dhan. In the circumstances, while basing the observations of entries of the jamabandies, the Mai Dhan is seen to have been the absolute owner to the extent of his share in the agricultural land and the defendants have been unable to prove their ownership over the land, in question. The issue is decided against the defendants.
9. On the basis of the aforementioned findings, the suit of the plaintiff-appellant has been decreed.
10. The learned lower appellate court has also rejected the findings of the trial Court and has held that gift deed No. 1754 dated 3.9.1974 (Exhibit P3/1) has not been proved on record. According to the lower appellate Court, the genuineness of the due execution of the original gift-deed has gone unproved and that the Court should not have admitted the document merely on the ground that it was the certified copy of the original. The execution and genuineness of the same was required to be either proved or admitted by the opposite side. It was further held that Jai Singh, Lamberdar and Narain Dutt who were the attesting witnesses of the gift deed were neither examined nor it has been pointed out that they were not alive or for some other reason could not be produced. Mere registration of the document by issuance of a certificate under Section 60(2) of the Registration Act, 1908, has not been regarded sufficient to prove the execution of the gift deed, which was required to be proved as per the requirement of Section 67 of the Evidence Act, 1872. The simple act of registration has not been considered sufficient to prove the execution of a gift deed. It has also been held that the scribe of the gift deed cannot be regarded as an attesting witness. In this regard reliance has been placed on a judgment of the Orissa High Court in the case of Bhaskar Sahu v. Anama Swara and Ors.,- and three judgments of other High Courts namely; Mt. Kamleskwari Nath and Anr., A.I.R. 1972 Assam and Nagaland 15 (D.B.); Ramkrishan Ganpat Futane and Ors. v. Mohammad Kasam and Ors. (D.B.); Harnam Singh and Ors. v. Dalip Singh and Ors., (1963)65 P.L.R. 1133 (D.B.). The learned lower appellate court also placed reliance on a judgment of the Supreme Court in the case of Dharam Singh v. Aso and Anr., A.I.R. 1990 S.C. 1888. It has further been found that neither the plaintiff-appellant when appeared as PW1 has deposed that Mai Dhan had got scribed the gift deed in her presence and also in the presence of other witnesses nor any statement has been made that it was read over to them and that in the presence of each other they signed/thumb marked the same. It has further been held that the acceptance of gift deed by the plaintiff-appellant as a donee has not been proved. According to learned lower appellate court reliance by the trial Court on the statement made by the plaintiff-appellant, who appeared as PW1 claiming that the possession of the land was delivered to her after the execution of the gift deed by Mai Dhan would be erroneous because there is no proof produced of any such entry in the Roznamcha of Patwari; Khasra Girdawari or Jamabandi in support of her assertion. In all the Jamabandies, Mai Dhan and/or his sons defendant-respondents are recorded to be the owners in possession of the whole suit land whereas plaintiff-appellant has never been recorded to be in possession of the suit land. The version of the plaintiff-appellant that after the execution of gift deed, she cultivated the land personally for 7 years and then gave the same to her brother Puran defendant-respondent No. l on payment of l/3rd Batai, who kept cultivating it for 4 years, has been found to be absolutely superfluous and the same has been rejected. It has been concluded that the plaintiff-appellant has failed to produce any cogent, oral or documentary evidence to show her cultivating possession. On record, nothing has been stated either .in the pleadings or in the course of the evidence disclosing as to who was present when the land was given on Batai to defendant-respondent No. l as claimed. In the revenue records, plaintiff-appellant has not been recorded to be in possession of the suit land. It has thus been concluded that the gift deed has never been acted upon and the plaintiff-appellant has never acquired possession of the suit land, which is the subject matter of gift deed.
11. The learned lower appellate court upheld the judgment and decree passed in Civil Suit No. 56 of 1980 filed by Puran Singh and Jage Ram against Mai Dhan and Civil Suit No. 459 of 1981 filed by Mange Ram and others against Mai Dhan. In both the cases collusive judgments and decrees have been passed in favour of the defendant-respondents. It has been held that a consent or compromise decree obtained after contest, cannot be set aside except on one of the ground on which a contract should be set aside. It has further been held that such a decree is binding on the parties and in any subsequent proceeding, the Court cannot go behind such a decree by reopening the same to opine whether the decree was passed on right or wrong facts. In this regard, reliance has been placed on the judgment in the case of Tej Singh and Ors. v. Jagrup Singh and Ors., (1989-1)95 P.L.R. 136. The learned lower Appellate Court has also held that there is not even allegation that the judgment and decree dated 31.7.1981 passed in Civil Suits No. 56 of 1980 and 459 of 1981 were the result of fraud, mis-representation and coercion etc. No such plea has been found to be set up either in the pleadings or during the course of, evidence. Accordingly, suit of the plaintiff-appellant was dismissed.
12. It is appropriate to mention that another suit, which has culminated in the filing of R.S.A. No. 2434 of 2001 was filed by the defendant-respondents being Civil Suit No. 407/1 of 1996 on 21.8.1996. In that suit, a decree has been is sought to the effect that defendant-respondents No. l, and 2 were exclusive owners in possession of another piece of land as fully detailed in the head note of the plaint. The order dated 31.1.1994 passed by the A.C., 1st Grade, Panipat according sanction to mutation in favour of the plaintiff-appellant being mutation No. 2145 and upheld by the Commissioner vide order dated 16.5.1996 showing that the plaintiff-appellant was owner of l/3rd share were legal and valid. On behalf of defendant-respondents No. l and 2, it was urged before the Courts below that the question of relationship had already been decided the 1st case by the learned lower appellate court vide its judgment and decree dated 5.9.1995 against the plaintiff-appellant and it has been held that Giano was not the daughter of Mai Dhan. In the second case, both the courts have returned a categorical finding that there was no evidence produced on record by the defendant-respondents to prove that Bhagwani mother of the plaintiff-appellant and defendant-respondents No. l and 2 was ever married to Hira and the Giano was born to Bhagwani from the loins of Hira. It has further been opined that there was no proof of the fact that Hira had died and Bhagwani contracted kareva marriage with Mai Dhan, the father of defendant-respondents No. l and 2 because Hira and Mai Dhan were not brothers. The analysis of the various statements made by the trial Court is available in para 13 of the judgment, which reads as under:
13. Having given due regards to contends of both the parties, it is observed that the plaintiffs (defendant-respondents in this appeal) are mainly relying on grounds mentioned in para No. 4(a) to (j) of the plaint. First ground is that Bhagwani was mother of defendant (plaintiff-appellant in this appeal), who was married with Hira and Giano was born to Bhagwani from loins of said Hira. Plaintiffs produced in witness box plaintiff No. 1 and Sharma to prove their case but there is no cogent proof on file that Bhagwani, mother of the plaintiffs had ever married to Hira PW1. Puran deposed his age as 65 years in the year 1999 and if Hira had died in the year 1939 and Bhagwani was married with Hira after 1940, then age of the plaintiff must be about 60 years if he is son of Bhagwani. If plaintiff deposes his age as 65 years, he must have been born in the year 1934 i.e. six years prior to the death of Hira and according to plaintiffs, Bhagwani got married with Mai Dhan after death of Hira. Giano deposed her age as 60 years which was challenged by plaintiffs and no cogent proof of age of defendant was produced by the plaintiffs to prove that they were elder brothers of Giano, when this plea was specifically taken by the defendant in written statement, plaintiffs have not been able to prove that Bhagwani had only conducted kareva marriage, with Mai Dhan. Plaintiffs are admitting the fact that Giano is daughter of Bhagwani and they are sons of Bhagwani. Onus to prove was on the plaintiffs to prove that Mai Dhan was not father of Giano defendant. Plaintiffs have not been able to prove the fact by bringing cogent evidence on record about the age of Bhagwani about kareva marriage of Bhagwani with Mai Dhan or about previous marriage of Bhagwani with Hira. However, defendant has also not produced any person having special knowledge to the fact that Mai Dhan was her father and she used to call him as father and he used to call her as daughter. But, plaintiffs failed to take benefit of the weakness of the defendant in this regard.
On the basis of the aforesaid findings on the principal issue, the trial Court dismissed the suit of the defendant-respondents No. 1 and 2 and even the learned lower appellate court has also dismissed the appeal.
13. When these appeals came up for consideration before this Court, some efforts were made for effecting a compromise between the parties as they are closely related. In this regard, reference may be made to order dated 6.4.2005 and 6.7.2005 passed by this Court. However, when the matter could not be settled amicably then arguments of the learned Counsel for the parties Were heard.
14. Mr. R.K. Battas, learned Counsel for the plaintiff-appellant has argued that there is ample evidence on record to conclude that the plaintiff-appellant Giano is daughter of Mat Dhan. Learned Counsel has submitted that the plaintiff-appellant had not succeeded to any property left by her so called father Hira. According to the learned Counsel, there is a reference in the gift deed itself executed by Mai Dhan owning the plaintiff-appellant as his own daughter. He has then referred to the statement of PW5-Amar Singh who has been examined by the plaintiff-appellant but there is no cross-examination conducted by the defendant-respondents when they subsequently filed Civil Suit No. 407/1 of 1996 (IInd case) to challenge the orders of the Revenue Authorities. Learned Counsel has asserted that Giano plaintiff-appellant is 50 years old and Jage Ram when appeared in the witness box as DW1 has accepted that she was the youngest. Learned Counsel has further argued that it has been repeatedly laid down by the Supreme Court that oral evidence as appreciated by the trial Court, should be accepted unless there are some good reasons to ignore the same. In support of his submission, learned Counsel has placed reliance on a judgment in the case of Madhu Sudan v. Narayanibai, .
15. Learned Counsel has then argued that there is a vital difference between the requirement of execution of a gift deed and that of a Will. Therefore the approach adopted by the learned lower appellate court in 1st case by applying those principles to gift deeds, which are applicable to the execution of a Will, is absolutely unsustainable in the eyes of law. In support of his submission, learned Counsel has placed reliance on a judgment of this Court in the case of Sukhdev Singh v. Harbhajan Singh and Ors. (1992-2)102 P.L.R. 366. It has further been submitted that once there is a certificate issued by the Sub Registrar then under Section 63 of the Succession Act, the Sub Registrar can be considered as attesting witness. In such a case, an endorsement made on the document is admissible in evidence and the same shall, be taken as proved as per Section 60 of the Registration Act. In support of his submission, learned Counsel has placed reliance on judgments of this Court in the case of Lila Dhar v. Smt. Badho 1993 P.L.J. 801 and Kartar Kaur and Anr. v. Bhagwan Kaur and Ors., 1993 P.L J. 63.
16. Mr. R.K. Gupta, learned Counsel for the defendant-respondents has argued that there is no documentary evidence on record to prove the relationship between the plaintiff-appellant and Mai Dhan showing that they were daughter and father. According to the learned Counsel, the oral statements made by witnesses have been correctly appreciated by the learned lower appellate court and nothing has been brought on record to satisfy the requirements of Section 50 of the Evidence Act. Learned Counsel has maintained that the burden to prove the relationship was cast upon the plaintiff-appellant. He has further argued that in fact Giano came with Bhagwani who was second wife of Mai Dhan and that she was widow of Hira. Supporting the view taken by the learned lower appellate court, Mr. Gupta has argued that a perusal of Section 123 of the Transfer of Property Act, 1882 (for brevity "the T.P, Act") would clearly indicate the properties of a gift deed which are more like the provision of Section 68 of the Evidence Act. In both the cases, the gift deed in respect of immovable property as well as the Will is required to be by at least two witnesses with a further requirement that gift deed must be registered by a competent authority. Learned Counsel has then submitted that the first appellate court is the final Court of fact and under Section 100 of the Code, the findings of fact are not to be interfered with. He has placed reliance on a judgment of this Court in the case of Lachmi and Ors. v. Silak Ram and Ors., 1988(1) Current Law Journal 642 and two judgments of the Supreme Court in the case of Kondiba Dagadu Kadam v, Savitribai Sopan Gujar and Ors., and Veerayee Ammal v. Seeni Animal, 2002 S.C.C.
17. Learned Counsel has then argued that no presumption of a valid execution would attach to a certified copy of a document. While placing reliance on various judgments cited by the learned lower appellate court 1st case it has been submitted that execution of a document of which certified copy is produced, has to be proved as per the requirement of proof which apply to original documents. He has cited a judgment in the case of Bhatkar Sahu v. Anama Swara and Ors., , N. Ramaswamy Padayachi v. C. Ramaswami Padayachi, A.I.R. 1974 Madras 88, Mst. Samrathi Devi v. Parasuram Pandey, A.I.R. 1974 Patna 140 and Moti v. Roshan and Ors., . Another argument raised by the learned Counsel is that registering authority cannot be the attesting witnesses. In support of his submission, he has placed reliance on two judgments of the Supreme Court in the cases of Dharam Singh v. Aso and Anr. and Sukhdev Singh v.
Harbhajan Singh and Ors. (1992-2)102 P.L.R 367.
18. Learned Counsel has then submitted that the gift deed had never been acted upon in as much as there is, nothing on record to show that the plaintiff-appellant had ever entered possession or given the land to defendant-respondent Puran on l/3rd Batai. In the absence of such evidence, learned Counsel has argued that it will not be possible to conclude that the gift deed was in fact acted upon. He has emphasised that according to Section 122, T.P. Act acceptance of a gift must be made during life time of a donor when he is still capable of giving gift. Learned Counsel then submitted that the judgment and decree passed in Civil Suit No. 459 of 1981 and Civil Suit No. 56 of 1980 are binding on the plaintiff-appellant because there is no challenge to those judgments and decrees by alleging that those were the result of collusive decree. Moreover, there is no issue framed. Therefore, the same cannot be challenged by raising the aforementioned ground.
19. For the sake of convenience, the legal controversy raised in these appeals can be discussed under four following heads:-
a) Whether the essential requirements of execution of gift deed as envisaged by Section 123 of T.P. Act read with Section 68 of the Evidence Act, 1872 have been fulfilled by the plaintiff-appellant?
b) What is the effect of absence of the attesting witnesses and the presence of Registry Clerk Kuldeep Singh PW3 and Jagdish Chander PW4 the scribe?
c) Whether the analysis of the trial Court based on the oral statements of various witnesses should have been accepted by the lower appellate court with regard to the relationship of plaintiff-appellant with Mai Dhan and the defendant-respondents or whether the rejection of the analysis is based on 'no evidence'?
d) Whether the donee-plaintiff-appellant has accepted the gift deed?
Re: Question a):
20. Chapter VII of T.P. Act incorporating into Section 122 and Section 68 deals with the gift. According to Section 122, gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration. There are thus four requirements of a gift deed, namely, (a) transfer must be the ownership of existing property; (b) without consideration; (c) voluntarily and (d) donee must accept the gift. Section 123 required that the gift must be effected by a registered deed signed by or behalf of the donor. It is further required to be attested by at least two witnesses.
21. Section 68 of the Evidence Act deals with mode of proof of document, which by law, is required to be attested and the same 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 atleast 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 documents, 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.
23. On a plain reading of Section 68 of the Evidence Act, it is manifest that one attesting witness is required to prove the execution of a document, which by law, is required to be attested provided the attesting witness is alive and subject to the process of the Court and is capable of making a statement. However, it is significant to notice that proviso appended to Section 68 dispensed with calling even an attesting witness in proof of execution of any document except the Will, which has been registered in accordance with the provisions of Indian Registration Act unless its execution by person has been specifically denied by whom it purports to have been executed.
24. The aforementioned provisions came up for consideration of the Supreme Court in the case of Surendra Kumar v. Nathu Lal and Anr., after referring to Section 123 and proviso to Section 68, their Lordships had observed as under.
On a plain reading of the proviso, it is manifest that a registered deed of gift can be received in evidence without examining one of the attestors if the person who has executed the deed of gift has not specifically denied its execution, in the present case, the donor Chand Bai has specifically admitted execution of the deed of gift in favour of the appellant. Therefore, the lower appellate court was in error in holding that the deed of gift has not been duly proved since one of the attestors has not been examined as witness. Indeed the certified copy of the registered deed of gift was produced in the trial court along with an application filed by the plaintiff in the previous suit, Suit No. 69 of 1970 (4 of 1976) that the same may be called for. The trial court, being satisfied about the reason for non-production of the original document, marked the certified copy of the deed of gift as Exhibit 3.
25. When the principles laid down in the aforementioned provisions of T.P. Act and Evidence Act as interpreted by the Supreme Court in Surendra Kumar's case (supra) are applied to the facts of the present case then it becomes clear that the gift deed Ex.PW3/1 is a registered document. The fact of registration has been proved by PW3 Kuldeep Singh Registry Clerk. Under Section 60 of the Registration Act a presumption would arise that the gift deed Ex.PW3/l dated 3.9.1974 was duly registered. A reference must be made to the statement of the scribe Shri Jagdish Chander PW4, who has categorically stated in his statement that he had scribed the document Ex.PW3/1 on the asking of the donor Shri Mai Dhan. He has further stated that the gift deed was thumb marked, signed by the parties and witnesses after the same has been read over to them. The donor Mai Dhan had thumb marked the gift deed after having its contents and accepting them to be correct. It is significant to notice that Mai Dhan had also thumb marked the entry in the register of the scribe, which was produced by PV/4 Jagdish Chander before the trial court. He had deposed that the entry No. 647 dated 3.9.1974 has been duly thumb marked by Mai Dhan. He also identified the thumb impressions of Mai Dhan and further testified that the gift deed was duly entered in the register of the Sub Registrar in his Book No. 1 Part No. 729 at Pages 72-73, Therefore, there is ample evidence on record showing that a gift deed dated 3.9.1974 was executed by Mai Dhan in favour of the plaintiff-appellant Smt. Giano, which has been duly proved by PW3 Kuldeep Singh Registry Clerk from the office of Sub Registrar, Panipat and the scribe Jagdish Chander PW4.
26. The question remains to be considered is whether a certified copy of the gift deed from the office of the Sub Registrar would be sufficient to prove due execution or independent evidence of execution would be required. As is evident from the provisions of Section 123 of T.P. Act read with Section 68 of the Evidence Act, which have been interpreted by the Supreme Court in Surendra Kumar's case (supra). There is no requirement in law to prove a document, which is required to be attested if its execution has not been denied. Nothing has been produced on record by the defendant-respondents showing that Mai Dhan has ever denied the execution of the gift deed. In the absence of denial by the donor, no attesting witness is required to be produced for the purposes of execution. However, this Court in Lila Dhar's case (supra) has categorically held that content? of the endorsement made by the Sub-Registrar are admissible in evidence under Section 60 of me Registration Act and such contents shall be taken as true. It is further required to be presumed that the endorsement was executed in accordance with law and all the persons had taken their signatures thereunder. Similar view has been expressed in the case of Kartar Kaur 's case (supra). Apart from the above circumstances, the plaintiff-appellant filed an application under Section 65 of the Evidence Act for adducing secondary evidence, which was opposed. However, by a detailed order dated 20.7.1993, the trial court granted permission to the plaintiff-appellant to adduce secondary evidence. As a consequence, a certified copy of the registered gift deed was produced by the Registry Clerk Shri Kuldeep Singh PW3 that the gift deed was duly registered. Ft is also obvious that the transfer of ownership was of existing property, without consideration and was made voluntarily.
27. In view of above, the answer to questions (a) and (b) has to be in favour of the plaintiff-appellant Smt. Giano. It must be held that the gift deed fulfills all the essential requirements of Section 123 of T.P. Act and Section 68 of the Evidence Act. The absence of attesting witness would not make any substantial difference as there is no requirement of law because the donor has never ever denied the execution. However, the presence of the Registry Clerk PW3 Shri Kuldeep Singh and the scribe Shri Jagdish 1 Chander PW4 has made material difference as has been discussed in the preceding paras. It would be pertinent to mention that the lower appellate court has fallen in grave legal error by requiring the plaintiff-appellant to prove the gift deed by producing the attesting witnesses. Learned lower appellate court has further committed grave error in law by coming to the conclusion that the gift deed has not been admitted by the defendant-respondents. In law, the denial of gift deed by the donor is required not any one else as is evident from the plain reading of proviso to Section 68 of the Evidence Act. Similarly, the lower appellate court has also been in error of law by rejecting the presumption which arises under Section 60 of the Registration Act. A Division Bench judgment of the Orissa High Court in Bhaskar Sahu's case (supra) would not require any detailed consideration because the principle of law laid down therein is not applicable to the facts of the present case. In that case, it has been laid down that there would not be presumption as to execution of the original document by mere production of certified copy of such a document. It is obvious that in the present case, there is a certified copy of the original gift deed Ex.PW3/l alone, which has come in evidence. There are statements of the plaintiff-appellant, who had appeared as PW1, Registry Clerk from the office of Sub Registrar PW3 and the statement of scribe who had appeared as PW4. With utmost respect, I do not, therefore, find anything in the Division Bench judgment, which may govern the issue involved in the present case. The other Division Bench judgment of the Madras High Court in the case of N. Ramaswami Padayachi (supra) on which reliance has been placed by the learned Counsel for the defendant-respondents would not be applicable to the facts of the present case because in that case before the Division Bench of the Madras High Court, the execution of the gift deed was denied by the donor itself. The judgment of the Supreme Court in the case of Dharam Singh (supra) again would not be applicable to the facts of the present case because in that case when attesting witnesses had opposed the execution then Registrar, who registered the Will, was produced. In such circumstances and considering the fact that the Will was required to be proved, the Supreme Court rejected the testimony of the Registrar as an attesting witness. Therefore, nothing can be gained from the aforementioned judgment. It is well settled that the gift and Will do not stand at par with each other in so far as proof of execution of these documents is required. In this regard, reference may be made to the judgment of this Court in the case of Sukhdev Singh (supra). On perusal of other judgment, which has been cited by the learned lower appellate court in the case of Mt. Kamleshwari Nath (supra). Division Bench judgment of Bombay High Court in the case of Ramkishan Ganpat Futane and Ors. (supra) and a Division Bench of this Court in Harnam Singh's case (supra), I do not find that those judgments have any bearing on the question raised in the present proceedings. The latest view of the Supreme Court in Surendra Kumar's case (supra) interpreting Section 123 of T.P. Act and Section 68 of the Evidence Act has made the law absolutely clear.
Re: Question (c)
28. It is well proposition of law that the analysis of the oral evidence and conclusion drawn thereon by the trial court should ordinarily be accepted by the lower appellate court. The rationale for the aforementioned principle appears to be that the trial court enjoys the privilege of watching and observing demeanor of witness. A number of unsaid things weigh in the mind of the trial court at the time of examining oral evidence. These principles have been laid down by the Supreme Court in the case of numerous 'judgments including the case of Madhu Sudan Day (supra). It has also been observed that although the appellate court has jurisdiction to reverse or affirm the findings of the trial court, yet it must reflect its conscious application of mind and record its own finding supported by reasons on all issues arising along with the contentions put forth. The aforementioned observation has been made by their Lordships of the Supreme Court in the case of Santosh Hazari v. Purshottam Tiwari . The observation of the Supreme Court in Madhu Sudan Das's case (supra) claimed on the principles with regard to oral evidence reads as under:
At this stage, it would be right to refer to the general principle that, in an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies"...It seems to us that this approach should be placed in the forefront in considering whether the High Court proceeded correctly in the evaluation of the evidence before it when deciding to reverse the findings of the trial court. The principle is one of practice and governs the weight to be given to a finding of fact by the trial court. There is of course, no doubt that as a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact.
29. The lower appellate court appears to have misdirected itself in reversing the findings of the trial court, firstly, by rejecting the order Ex.PY dated 13.9.1994 parsed by the Collector, Panipat, Lower appellate court has also rejected the oral testimony of Shama PW2 and Amar Singh PW5 by observing that they were not having any special means of knowledge to know the relationship.
30. The learned lower appellate court has conveniently ignored the recital in the gift deed Ex.PW3/1, statement of defendant-respondent Jage Ram conceding that Smt. Giano was youngest of the three children coupled with the statements of Sharma PW2 and Amar Singh PW5. It is pertinent to mention that the plaintiff-appellant Smt. Giano herself has appeared in the witness box and has categorically asserted to be the real daughter of Mai Dhan and Bhagwani. The aforementioned statements have been supported in an unequivocal term by the oral statements made by Shama PW2 and Amar Singh PWS. It is significant to notice that defendant-respondent Jage Ram appeared in the witness box as DW1 and in his cross-examination, he had stated that the plaintiff-appellant is not elder to him. The aforementioned statement when compared with the analysis made by the trial court in para 13 of the judgment in the second case, it becomes evident that the plaintiff-appellant is younger to defendant-respondents Puran and Jage Ram. it would prove that the plaintiff-appellant had not come with her mother Bhagwani at the time of so called kareva marriage alleged to have been solemnized by her mother Bhagwani with Mai Dhan. In other words, she was born after the birth of defendant-respondents No. l and 2 and has to be accepted as the daughter of Bhagwani and Mai Dhan. The aforementioned findings are also supported by the recitals in the gift deed Ex. PW3/1. Therefore, the rejection of evidence by the lower appellate court is based on 'no evidence', which has ignored the vital admissions. The lower appellate court ought not to have substituted the analysis of the oral evidence with its own analysis without assigning persuasive and acceptable reasons. Moreover, the defendant-respondents could have easily proved that their mother was earlier married to Hint. There is no evidence to establish any such fact. It is also pertinent to mention that kareva marriage takes place only between the wife of an elder brother when the younger brother was unmarried. Under the customary law, no kareva marriage is solemnized by wife of a stranger with another man. Therefore, the theory of kareva marriage by Bhagwani with Mai Dhan is also highly doubtful. Therefore, the findings as recorded by the lower appellate court 1st case on the issue of relationship are set aside and those of the trial court are restored. It has to be held that Smt. Giano is the real daughter of Mai Dhan and Bhagwani and she is the real sister of the defendant-respondents.
31. The gift deed Ex.PW3/l is required to be accepted by the donee, namely, the plaintiff-appellant. As per the requirement of Section 123 of T.P. Act, the gift deed is proved to be executed and was validly in possession of plaintiff-appellant Smt. Giano. The gift deed itself shows that it was thumb marked by plaintiff-appellant Smt. Giano, who has been the donee. Statement made by her while appearing as PW1 coupled with the statement of PW2 Shama, who stated that Mai Dhan has gifted the suit land to his daughter Giano by a registered deed, which was used to be cultivated by her for 6/7 years. After that, the brother of Giano had purchased a tractor and he started giving l/3rd Batai to her. To the same effect is the statement of PW5 Amar Singh. It is further pertinent to mention that in the gift deed, there is an express recital that the possession of the land has been delivered to Giano plaintiff-appellant.
32. In view of above overwhelming evidence, it cannot be concluded that the gift made by Mai Dhan the father of the plaintiff-appellant has not been accepted by her. It is well settled that for proving the acceptance of a gift, it is not required to be shown that possession of the immovable property gifted under the deed has been delivered as long as it is shown that the presents under the gift was accepted. In this regard, reliance has been rightly placed by the trial court in the judgment of this Court in Pishori Lal's case (supra).
33. For all the reasons stated above, the appeal in the first case is allowed by reversing the findings recorded by the lower appellate Court. In other words. R.S.A. No. 2447 of 1995 is accepted and the judgment and decree of the trial court is restored. The appeal filed in the second case by the defendant-respondents is rejected by affirming the findings recorded by both the courts below in that appeal. The plaintiff-appellant shall be entitled to costs, which are determined at Rs. 20,000/-.