{"id":169084,"date":"2009-07-29T00:00:00","date_gmt":"2009-07-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/second-appeal-no-31-of-1998-vs-unknown-on-29-july-2009"},"modified":"2016-04-19T21:19:46","modified_gmt":"2016-04-19T15:49:46","slug":"second-appeal-no-31-of-1998-vs-unknown-on-29-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/second-appeal-no-31-of-1998-vs-unknown-on-29-july-2009","title":{"rendered":"Second Appeal No.31 Of 1998 vs Unknown on 29 July, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Second Appeal No.31 Of 1998 vs Unknown on 29 July, 2009<\/div>\n
Bench: C. L. Pangarkar<\/div>\n
                                                       1\n\n\n\n\n                                                                                   \n                             \n            IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                           \n                     NAGPUR BENCH AT NAGPUR.\n\n                           SECOND APPEAL NO.31 OF 1998.\n\n\n\n\n                                                          \n    APPELLANT:                Smt.Latika w\/o Ramaji Zade,\n                              aged 44 years, Occu: Tailoring Business,\n                              R\/o Kelzar, Tq. Seloo, Distt.Wardha,\n                              Post Kelzar.\n\n\n\n\n                                                   \n                        \n                                 ig   ..VERSUS..\n\n     RESPONDENT :          Smt.Indubai w\/o Vithalrao Andraskar,\n                           aged 52 years, Occu: Household, r\/o\n                               \n                           Rajnandgaon, Tq.and Distt.Rajnandgaon\n                           (M.P.)\n\n    =-=-==-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=\n           \n\n\n                       Mr.A.V.Khare, Advocate for the appellant.\n                      Ms. Mugdha Atrey, Adv. for the respondent.\n        \n\n\n\n      =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-\n                                     Coram:  C.L.PANGARKAR,J.\n<\/pre>\n
                                     Dated :  29th  July 2009.\n<\/p>\n
    ORAL JUDGMENT:\n<\/p>\n
    1.        This is second appeal by a defendant who lost in both the <\/p>\n
    courts below.\n<\/p>\n
    2.        Facts are as follows –\n<\/p>\n
              Respondent\/plaintiff   had   instituted   a   civil   suit   for <\/p>\n
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\n                                                            2<\/span><\/p>\n
    permanent   and   mandatory   injunction   restraining   the <\/p>\n
    appellant\/defendant from interfering with possession of the plaintiff <\/p>\n
    over the suit property.\n<\/p>\n
    3.          The plaintiff  and the defendant are the real sisters.   One <\/p>\n
    Laxman Shrawanji Kayarkar is their grand-father i.e. their mother’s <\/p>\n
    father.     He   was   the   owner   of   the   house   situated   in   ward   no.4   at <\/p>\n
    Kelzar.     Said   Laxman   died   on   1\/7\/1989   leaving   behind   him   the <\/p>\n
    plaintiff and the defendant as the only heirs and the suit property.\n<\/p>\n
    Since the plaintiff and the defendant are the only heirs, the plaintiff <\/p>\n
    submits that the plaintiff and defendant became the co-owners of the <\/p>\n
    property left behind by Laxman.  The defendant, who is sister of the <\/p>\n
    plaintiff started living in the part of the house.  After the death of said <\/p>\n
    Laxman,   the   plaintiff   and   the   defendant   agreed   to   divide   the   said <\/p>\n
    house   and   memorandum   of   partition   was   executed   on   24\/5\/1990.\n<\/p>\n
    According to the plaintiff, the western portion fell to the share of the <\/p>\n
    plaintiff   while   Eastern   portion   fell   to   the   share   of   the   defendant.\n<\/p>\n
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\n                                                            3<\/span><\/p>\n
    Although  the  Western   portion  fell  to  the  share  of  the  plaintiff  and <\/p>\n
    Eastern portion fell to the share of the defendant, there is no dividing <\/p>\n
    wall   between   the   two   houses.     The   plaintiff,   therefore,   has   an <\/p>\n
    apprehension   in   the   mind   that   the   defendant   may   interfere   in   the <\/p>\n
    possession   of   the   plaintiff   over   the   western   portion.     The   plaintiff, <\/p>\n
    therefore, wanted to construct the said wall dividing the said house.\n<\/p>\n
    When   they   started   the   construction,   the   defendant   obstructed.\n<\/p>\n
    Hence, the suit.\n<\/p>\n
    4.          The   defendant   resisted   the  suit.     She,   however,   admitted <\/p>\n
    the   relationship   between   the   parties.     She   also   admitted   that   the <\/p>\n
    property   originally   belonged   to   their   grand-father   Laxman.     She <\/p>\n
    denies that partition had taken place between the plaintiff and the <\/p>\n
    defendant and western portion fell to the share of the plaintiff.  The <\/p>\n
    defendant contends that during the lifetime Laxman had executed a <\/p>\n
    gift-deed in her favour and therefore she has become exclusive owner <\/p>\n
    of   the   suit   property.     According   to   the   defendant,   the   partition <\/p>\n
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\n                                                           4<\/span><\/p>\n
    executed between the parties is not admissible in evidence because it <\/p>\n
    is   not   registered   under   Section   17   of   the   Registration   Act.     The <\/p>\n
    defendant led a counter claim claiming possession of the portion in <\/p>\n
    possession of the plaintiff.   It is her contention that the plaintiff had <\/p>\n
    forcibly dispossessed the defendant.  The plaintiff resisted this counter <\/p>\n
    claim by filing the written statement to the said counter claim.\n<\/p>\n
    5.          The   learned   judge   of   the   trial   court   framed   issues   and <\/p>\n
    found that the plaintiff was in possession of the western portion in <\/p>\n
    view of the partition.  The trial court found that there was a partition <\/p>\n
    on 24\/5\/1990 and gift-deed executed in favour of the defendant is <\/p>\n
    void.  The learned judge of the trial court, therefore, decreed the suit.\n<\/p>\n
    The trial court held that the defendant was not entitled to possession <\/p>\n
    of the property in possession of the plaintiff.  The trial court did not, <\/p>\n
    however, pass any order with regard to the counter claim.\n<\/p>\n
    6.          The   defendant   preferred   an   appeal   before   the   District <\/p>\n
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\n                                                            5<\/span><\/p>\n
    Judge.  The District Judge held that there was a partition and western <\/p>\n
    portion  had fallen to the share of the plaintiff.    The partition-deed <\/p>\n
    was admissible in evidence and the gift-deed was void.  He, therefore, <\/p>\n
    dismissed the appeal.\n<\/p>\n
    7.          The   defendant   feels   aggrieved   and   prefers   this   second <\/p>\n
    appeal.   The second appeal is admitted on the following substantial <\/p>\n
    question of law by D.K.Deshmukh,J.\n<\/p>\n
               “That   the   registered   gift-deed   dated   15\/5\/1989 <\/p>\n
               executed   by   Laxman   in   favour   of   the <\/p>\n
               defendant\/appellant was brushed aside by both the
\n               learned   courts   below   without   any   good   reason   for
\n               the   same   and   no   due   weight   was   given   to   the
\n               execution and registration of the document  of gift-\n<\/p><\/blockquote>\n
               deed.”<\/p><\/blockquote>\n
                But for the gift-deed, both the plaintiff and the defendant <\/p>\n
    would be entitled to half share.  The defendant has set up a gift in her <\/p>\n
    favour.   The learned judge of the trial court mainly refused to treat <\/p>\n
    the   gift-deed   as   valid   on   the   ground   that   the   gift-deed   bears   the <\/p>\n
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\n                                                            6<\/span><\/p>\n
    thumb impression instead of signature of the donor, as the donor was <\/p>\n
    literate and educated person.  The learned judge had also taken into <\/p>\n
    account the fact that the deceased died within one and half months of <\/p>\n
    the execution  of the gift-deed.   The learned judge of the appellate <\/p>\n
    court   endorses   almost   the   same   view.     Before   dwelling   upon   the <\/p>\n
    validity of the gift, it would be necessary to look into the conduct of <\/p>\n
    the parties subsequent to the alleged execution of the gift-deed.  The <\/p>\n
    date of the gift deed is 1\/7\/1989.   The plaintiff has, in fact, claimed <\/p>\n
    that there was a partition between the parties on 23\/5\/1990 and it <\/p>\n
    was   reduced   to   writing   on   24\/5\/1990.     There   are   in   fact   two <\/p>\n
    documents   on   record   Exh.29   and   37.     Exh.37   is   a   partition   deed <\/p>\n
    written on a stamp paper but unregistered and Exh.29 is on a simple <\/p>\n
    piece   of   paper.     Exh.29   is   dated   23\/5\/1990   and   Exh.37   is   dated <\/p>\n
    24\/5\/1990.  Much argument was advanced by both the lawyers with <\/p>\n
    regard to the admissibility of Exh.37 on account of non-registration of <\/p>\n
    the   same.     The   fact   is,   both   documents   are   exhibited.     I   do   not <\/p>\n
    propose to enter into the validity of those documents since the appeal <\/p>\n
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\n                                                           7<\/span><\/p>\n
    is not admitted on the question of its validity and admissibility.  Since <\/p>\n
    the appeal is not admitted on that question of law, I do not propose <\/p>\n
    to discuss that at all.  Both documents to my mind can be looked into <\/p>\n
    to hold that there was some agreement to divide the house and the <\/p>\n
    parties had in fact signed the said documents.   Learned counsel for <\/p>\n
    the   appellant   had   relied   on   the   decision   of   the   Supreme   Court <\/p>\n
    reported   in  AIR   1988   SC   881  (Roshan   Signh  and  others   ..vs..   Zile <\/p>\n
    Singh and others).  Since I find that the appeal has not been admitted <\/p>\n
    on that question of law, I need not consider even this decision of the <\/p>\n
    Supreme Court in the matter nor do I propose to deal with the other <\/p>\n
    decision in Second Appeal No.64 of 1997 (Tatoda Pak Pakmode ..vs..\n<\/p>\n
    Sudhakar Pakmode), decided on 4\/5\/2009.  The documents i.e. Exh.\n<\/p>\n
    29 and 37 have come into existence ten months after the execution of <\/p>\n
    the gift-deed.   The material question is why inspite of existence  of <\/p>\n
    such gift-deed the documents purporting to be partition-deed came <\/p>\n
    into   existence   and   were   signed   by   the   parties.     To   my   mind,   the <\/p>\n
    defendant could have refused to sign any of these documents showing <\/p>\n
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\n                                                            8<\/span><\/p>\n
    that she is exclusive owner of the property by virtue of the gift-deed.\n<\/p>\n
    This conduct of the defendant in not claiming exclusive ownership on <\/p>\n
    the basis of the gift-deed speaks volumes against her.  Was it because <\/p>\n
    she was aware that she may not be able to prove the gift ?.   It was <\/p>\n
    contended that defendant denies to have put her signature on Exh.29 <\/p>\n
    and   37   and   therefore,   it   cannot   be   said   that   the   defendant   had <\/p>\n
    executed these documents.   Her statement on oath to that effect is <\/p>\n
    apparently false.  She has courage to deny her admitted signatures on <\/p>\n
    Vakalatnama and the written statement.  This clearly shows that her <\/p>\n
    denial   of   having   put   signatures   all   these   documents   is   of   no <\/p>\n
    consequence.\n<\/p>\n
    8.          Be that as it may.  That takes me to the main question to be <\/p>\n
    decided.  But then the above is a material circumstance which cannot <\/p>\n
    be   lost   sight   of.     For   proof   of   gift-deed,   an   attesting   witness   is <\/p>\n
    required to be examined since gift is a document which is compulsory <\/p>\n
    attestable.  DW 4 – Bhaurao is an attesting witness who is examined <\/p>\n
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\n                                                            9<\/span><\/p>\n
    to prove attestation and execution of the gift-deed.  The witness does <\/p>\n
    say that Laxman has put his thumb impression on the gift-deed after <\/p>\n
    it was read over and that he himself put his signature as an attesting <\/p>\n
    witness   and   Vasant   Dabhekar   also   attested   it.     It   is   not   much   in <\/p>\n
    dispute that Laxman – the executant was more than 90 yeas of age.\n<\/p>\n
    The defendant through her evidence has tried to show that Laxman <\/p>\n
    had put his thumb  impression on the documents as he had developed <\/p>\n
    a cramp in the hand due to the old age.   It may be noted here that <\/p>\n
    Laxman was educated and a literate person.  The plaintiff in order to <\/p>\n
    prove that Laxman never put thumb impression and used to sign the <\/p>\n
    documents   has   placed   on   record   two   documents   Exh.31   and   32.\n<\/p>\n
    Exh.31 is an agreement of lease and Exh.32 is an application to the <\/p>\n
    M.S.E.B.   The defendant   Latika i.e. DW 2 in her cross-examination <\/p>\n
    admits that Exhs.31 and 32 bear signature of Laxman.  It is, therefore, <\/p>\n
    clear   that   Laxman   was   literate   and   educated   and   used   to   sign   on <\/p>\n
    documents.     Shri   Khare,   learned   counsel   for   the   appellant   submits <\/p>\n
    that it cannot be disputed that Laxman was a literate person and he <\/p>\n
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\n                                                           10<\/span><\/p>\n
    used to   sign the documents but according to him, that was seven <\/p>\n
    yeas   ago.     He   submits   that   seven   years   ago   he   was   able   to   put <\/p>\n
    signature but on account of advanced stage he was not able to put <\/p>\n
    signature.     In   this   regard,   it   may   be   observed   that   witnesses   have <\/p>\n
    unanimously,   in   fact,   said   that   Laxman   was   in   good   mental   and <\/p>\n
    physical condition until last.  Even DW 2 Latika says so.  Now, if he <\/p>\n
    was mentally and physically well until last, it is difficult to accept that <\/p>\n
    he would put thumb impression instead of a signature.   These two <\/p>\n
    things cannot go together.  If he was mentally and physically sound, it <\/p>\n
    is   difficult   to   accept   that   he   could   not   put   signature   on   the <\/p>\n
    documents.\n<\/p>\n
    9.          To me, it appears, in fact, that Laxman was not at all in fit <\/p>\n
    condition  to execute the document and that is why he could not put <\/p>\n
    his signature.  There are two reasons why conscious execution of such <\/p>\n
    document   is   doubtful.     First   is   DW   2   Latika   admits   in   cross-\n<\/p>\n
    examination that Laxman had an abscess to his leg and even DW 4 <\/p>\n
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\n                                                         11<\/span><\/p>\n
    Bhaurao admits in cross-examination that Laxman was not well due <\/p>\n
    to the injury to the leg.  Secondly, DW 3 Pradeep says in examination-\n<\/p>\n
    in-chief itself that he scribed the gift deed upon say of Laxman and in <\/p>\n
    cross-examination   admits   that   Laxman   was   not   present   when <\/p>\n
    document was scribed by him.   It is thus clear that contents of the <\/p>\n
    documents are not written upon the instruction of Laxman.  It is clear <\/p>\n
    that Laxman’s physical and mental condition was not good.   That is <\/p>\n
    also evident because he died just a month after the alleged execution <\/p>\n
    of sale-deed.   The Registrar was brought to his house   and that also <\/p>\n
    shows that his condition was not normal.   If that is so in no case it <\/p>\n
    could   be   said   that   the   document   was   consciously   executed   by <\/p>\n
    Laxman.\n<\/p>\n
    10.         There is no doubt that the document is duly registered and <\/p>\n
    attested.  Proof of that alone is not enough.  It must be shown that it <\/p>\n
    was   duly   executed   by   the   executor   of   his   own   free   will.     The <\/p>\n
    circumstances do show that it was not.   All this evidence have been <\/p>\n
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\n                                                           12<\/span><\/p>\n
    rightly   appreciated   by   the   courts   below   and   I   do   not   find   any <\/p>\n
    perversity   in   its   appreciation.       In   the   circumstances,   there   is   no <\/p>\n
    substance in the appeal.  It is dismissed with costs.\n<\/p>\n
                                                                             JUDGE.\n<\/p>\n
    chute<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 14:50:39 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Second Appeal No.31 Of 1998 vs Unknown on 29 July, 2009 Bench: C. L. Pangarkar 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-169084","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nSecond Appeal No.31 Of 1998 vs Unknown on 29 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/second-appeal-no-31-of-1998-vs-unknown-on-29-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Second Appeal No.31 Of 1998 vs Unknown on 29 July, 2009 - 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