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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR.
SECOND APPEAL NO.31 OF 1998.
APPELLANT: Smt.Latika w/o Ramaji Zade,
aged 44 years, Occu: Tailoring Business,
R/o Kelzar, Tq. Seloo, Distt.Wardha,
Post Kelzar.
ig ..VERSUS..
RESPONDENT : Smt.Indubai w/o Vithalrao Andraskar,
aged 52 years, Occu: Household, r/o
Rajnandgaon, Tq.and Distt.Rajnandgaon
(M.P.)
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Mr.A.V.Khare, Advocate for the appellant.
Ms. Mugdha Atrey, Adv. for the respondent.
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Coram: C.L.PANGARKAR,J.
Dated : 29th July 2009.
ORAL JUDGMENT:
1. This is second appeal by a defendant who lost in both the
courts below.
2. Facts are as follows –
Respondent/plaintiff had instituted a civil suit for
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permanent and mandatory injunction restraining the
appellant/defendant from interfering with possession of the plaintiff
over the suit property.
3. The plaintiff and the defendant are the real sisters. One
Laxman Shrawanji Kayarkar is their grand-father i.e. their mother’s
father. He was the owner of the house situated in ward no.4 at
Kelzar. Said Laxman died on 1/7/1989 leaving behind him the
plaintiff and the defendant as the only heirs and the suit property.
Since the plaintiff and the defendant are the only heirs, the plaintiff
submits that the plaintiff and defendant became the co-owners of the
property left behind by Laxman. The defendant, who is sister of the
plaintiff started living in the part of the house. After the death of said
Laxman, the plaintiff and the defendant agreed to divide the said
house and memorandum of partition was executed on 24/5/1990.
According to the plaintiff, the western portion fell to the share of the
plaintiff while Eastern portion fell to the share of the defendant.
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Although the Western portion fell to the share of the plaintiff and
Eastern portion fell to the share of the defendant, there is no dividing
wall between the two houses. The plaintiff, therefore, has an
apprehension in the mind that the defendant may interfere in the
possession of the plaintiff over the western portion. The plaintiff,
therefore, wanted to construct the said wall dividing the said house.
When they started the construction, the defendant obstructed.
Hence, the suit.
4. The defendant resisted the suit. She, however, admitted
the relationship between the parties. She also admitted that the
property originally belonged to their grand-father Laxman. She
denies that partition had taken place between the plaintiff and the
defendant and western portion fell to the share of the plaintiff. The
defendant contends that during the lifetime Laxman had executed a
gift-deed in her favour and therefore she has become exclusive owner
of the suit property. According to the defendant, the partition
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executed between the parties is not admissible in evidence because it
is not registered under Section 17 of the Registration Act. The
defendant led a counter claim claiming possession of the portion in
possession of the plaintiff. It is her contention that the plaintiff had
forcibly dispossessed the defendant. The plaintiff resisted this counter
claim by filing the written statement to the said counter claim.
5. The learned judge of the trial court framed issues and
found that the plaintiff was in possession of the western portion in
view of the partition. The trial court found that there was a partition
on 24/5/1990 and gift-deed executed in favour of the defendant is
void. The learned judge of the trial court, therefore, decreed the suit.
The trial court held that the defendant was not entitled to possession
of the property in possession of the plaintiff. The trial court did not,
however, pass any order with regard to the counter claim.
6. The defendant preferred an appeal before the District
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Judge. The District Judge held that there was a partition and western
portion had fallen to the share of the plaintiff. The partition-deed
was admissible in evidence and the gift-deed was void. He, therefore,
dismissed the appeal.
7. The defendant feels aggrieved and prefers this second
appeal. The second appeal is admitted on the following substantial
question of law by D.K.Deshmukh,J.
“That the registered gift-deed dated 15/5/1989
executed by Laxman in favour of the
defendant/appellant was brushed aside by both the
learned courts below without any good reason for
the same and no due weight was given to the
execution and registration of the document of gift-
deed.”
But for the gift-deed, both the plaintiff and the defendant
would be entitled to half share. The defendant has set up a gift in her
favour. The learned judge of the trial court mainly refused to treat
the gift-deed as valid on the ground that the gift-deed bears the
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thumb impression instead of signature of the donor, as the donor was
literate and educated person. The learned judge had also taken into
account the fact that the deceased died within one and half months of
the execution of the gift-deed. The learned judge of the appellate
court endorses almost the same view. Before dwelling upon the
validity of the gift, it would be necessary to look into the conduct of
the parties subsequent to the alleged execution of the gift-deed. The
date of the gift deed is 1/7/1989. The plaintiff has, in fact, claimed
that there was a partition between the parties on 23/5/1990 and it
was reduced to writing on 24/5/1990. There are in fact two
documents on record Exh.29 and 37. Exh.37 is a partition deed
written on a stamp paper but unregistered and Exh.29 is on a simple
piece of paper. Exh.29 is dated 23/5/1990 and Exh.37 is dated
24/5/1990. Much argument was advanced by both the lawyers with
regard to the admissibility of Exh.37 on account of non-registration of
the same. The fact is, both documents are exhibited. I do not
propose to enter into the validity of those documents since the appeal
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is not admitted on the question of its validity and admissibility. Since
the appeal is not admitted on that question of law, I do not propose
to discuss that at all. Both documents to my mind can be looked into
to hold that there was some agreement to divide the house and the
parties had in fact signed the said documents. Learned counsel for
the appellant had relied on the decision of the Supreme Court
reported in AIR 1988 SC 881 (Roshan Signh and others ..vs.. Zile
Singh and others). Since I find that the appeal has not been admitted
on that question of law, I need not consider even this decision of the
Supreme Court in the matter nor do I propose to deal with the other
decision in Second Appeal No.64 of 1997 (Tatoda Pak Pakmode ..vs..
Sudhakar Pakmode), decided on 4/5/2009. The documents i.e. Exh.
29 and 37 have come into existence ten months after the execution of
the gift-deed. The material question is why inspite of existence of
such gift-deed the documents purporting to be partition-deed came
into existence and were signed by the parties. To my mind, the
defendant could have refused to sign any of these documents showing
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that she is exclusive owner of the property by virtue of the gift-deed.
This conduct of the defendant in not claiming exclusive ownership on
the basis of the gift-deed speaks volumes against her. Was it because
she was aware that she may not be able to prove the gift ?. It was
contended that defendant denies to have put her signature on Exh.29
and 37 and therefore, it cannot be said that the defendant had
executed these documents. Her statement on oath to that effect is
apparently false. She has courage to deny her admitted signatures on
Vakalatnama and the written statement. This clearly shows that her
denial of having put signatures all these documents is of no
consequence.
8. Be that as it may. That takes me to the main question to be
decided. But then the above is a material circumstance which cannot
be lost sight of. For proof of gift-deed, an attesting witness is
required to be examined since gift is a document which is compulsory
attestable. DW 4 – Bhaurao is an attesting witness who is examined
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to prove attestation and execution of the gift-deed. The witness does
say that Laxman has put his thumb impression on the gift-deed after
it was read over and that he himself put his signature as an attesting
witness and Vasant Dabhekar also attested it. It is not much in
dispute that Laxman – the executant was more than 90 yeas of age.
The defendant through her evidence has tried to show that Laxman
had put his thumb impression on the documents as he had developed
a cramp in the hand due to the old age. It may be noted here that
Laxman was educated and a literate person. The plaintiff in order to
prove that Laxman never put thumb impression and used to sign the
documents has placed on record two documents Exh.31 and 32.
Exh.31 is an agreement of lease and Exh.32 is an application to the
M.S.E.B. The defendant Latika i.e. DW 2 in her cross-examination
admits that Exhs.31 and 32 bear signature of Laxman. It is, therefore,
clear that Laxman was literate and educated and used to sign on
documents. Shri Khare, learned counsel for the appellant submits
that it cannot be disputed that Laxman was a literate person and he
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used to sign the documents but according to him, that was seven
yeas ago. He submits that seven years ago he was able to put
signature but on account of advanced stage he was not able to put
signature. In this regard, it may be observed that witnesses have
unanimously, in fact, said that Laxman was in good mental and
physical condition until last. Even DW 2 Latika says so. Now, if he
was mentally and physically well until last, it is difficult to accept that
he would put thumb impression instead of a signature. These two
things cannot go together. If he was mentally and physically sound, it
is difficult to accept that he could not put signature on the
documents.
9. To me, it appears, in fact, that Laxman was not at all in fit
condition to execute the document and that is why he could not put
his signature. There are two reasons why conscious execution of such
document is doubtful. First is DW 2 Latika admits in cross-
examination that Laxman had an abscess to his leg and even DW 4
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Bhaurao admits in cross-examination that Laxman was not well due
to the injury to the leg. Secondly, DW 3 Pradeep says in examination-
in-chief itself that he scribed the gift deed upon say of Laxman and in
cross-examination admits that Laxman was not present when
document was scribed by him. It is thus clear that contents of the
documents are not written upon the instruction of Laxman. It is clear
that Laxman’s physical and mental condition was not good. That is
also evident because he died just a month after the alleged execution
of sale-deed. The Registrar was brought to his house and that also
shows that his condition was not normal. If that is so in no case it
could be said that the document was consciously executed by
Laxman.
10. There is no doubt that the document is duly registered and
attested. Proof of that alone is not enough. It must be shown that it
was duly executed by the executor of his own free will. The
circumstances do show that it was not. All this evidence have been
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rightly appreciated by the courts below and I do not find any
perversity in its appreciation. In the circumstances, there is no
substance in the appeal. It is dismissed with costs.
JUDGE.
chute
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