IMPORTANT POINT
Under proviso to Section 68 of Evidence Act, 1872 a registered deed of gift can be received in evidence without examining one of the attestators if the person who had executed the deed of gift has not specifically denied its execution. First appellate Court was in error that the deed of gift has not been duly proved. The High Court in second appeal was wrong in holding that no substantial question of law arises in the case.

Headnote:Transfer of Property Act, 1882-Section 123-Transfer by gift how effected-Evidence Act, 1872-Section 68 proviso-Proof of execution of document required by law to be attested-Civil Procedure Code, 1908-Section 100-Second appeal on question of law-Suit for redemption of mortgage filed by donee on a gift deed by mortgagor duly registered and attested-Certified copy filed-Trial Court exhibited and decreed the suit-Appellate Court reversed on ground that gift deed was not duly proved by calling an attesting witness-Executor of gift deed admitting execution-High Court in second appeal dismissed on ground that no substantial question of law is involved-Appeal to Supreme Court-Whether 1st appellate Court and High Court correct? (No)-Appeal allowed.
Held : On a plain reading of proviso (to Section 68 of Evidence Act), 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. 69/70(4/76) 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. The High Court, as noted earlier, dismissed the second appeals on the ground that no substantial question of law arises in the case. We are constrained to hold that the order was passed without due application of mind. The judgment of the lower appellate Court was clearly vitiated by error of law in holding that the deed of gift was not duly proved in the case. In the result, the appeals succeed and they are allowed with costs. The judgment/order passed by the High Court dismissing the second appeals, thereby confirming the judgment of the District Judge are set aside and the judgment and decree passed by the trial Court is restored. (Paras 14, 15 and 16)

JUDGMENT

D.P. Mohapatra, J.-Smt. Chand Bai, widow of Pothulal, was the original owner of the suit property which is a three storied building situated at Sangipada, Sawai Madhopur in the State of Rajasthan. On the third floor of the house some rooms were constructed by the said Smt. Chand Bai. She mortgaged those rooms with possession to Sugan Chand for Rs. 3700/- vide the registered mortgage deed dated 17.2.1950. Thereafter Sugan Chand mortgaged the suit property with possession to Smt. Parsadi and Hanumandas on 28.7.1961 for Rs. 2400/- under a registered mortgaged deed. Said Smt. Parsadi and Hanumandas in turn mortgaged the suit property with possession to Nathulal, the respondent No. 1 herein. Nathulal is in possession of the suit property.

2. When the respondent No. 1 started demolishing a portion of the suit property, Smt. Chand Bai filed a Civil suit No. 69/70 (4/76) in the Court of the Munsif, Sawai Madhopur for mandatory injunction, for declaration of easementary rights, etc. The suit was decreed and the appeal filed by the respondent No. 1 was dismissed. The Second Appeal No. 168/91 filed by him is pending in the High Court. During the pendency of the suit, Smt. Chand Bai executed a gift deed on 29.1.1971 in favour of Surendra Kumar, appellant herein. Thereafter the appellant filed a Civil Suit No. 140/73/111/74 for redemption of the mortgage. Smt. Parsadi, Hanuman Dass, Nathu Lal, Sugan Chand and Smt. Chand Bai were impleaded as Defendant Nos. 1 to 5 respectively in the said suit. It is relevant to state here that in the suit, Nathu Lal was the main contesting defendant. Smt. Parsadi and Hanuman Dass, Defendants 1 and 2 had entered into a compromise with the plaintiff. Sugan Chand and Smt. Chand Bai, Defendants 4 and 5 filed written statement supporting the case of the plaintiff.

3. The trial Court, on perusal of the pleadings of the parties, framed ten issues of which issue Nos. 2, 7 and 9 are relevant for the purpose of the present proceeding. The said issues are to the effect that :

"2. Whether the plaintiff has got the right to file the suit?

7. Whether the gift-deed is collusive?

9. Whether the plaintiff is entitled to get the possession of the house in dispute?"

The trial Court answered all these issues in favour of the plaintiff and decreed the suit vide its judgment dated 15th March, 1978. The operative portion of the judgment reads :

"1. Upon the plaintiff paying to the defendant No. 3 Rs. 2612.25 (Rs. 2400/- mortgage amount and Rs. 212.25 as expenses for repairs etc.) the plaintiff shall have the right to get the property in dispute redeemed and the plaintiff shall be entitled to get the possession of the disputed property. The plaintiff shall deposit the said amount in the Court on 30.3.78 and on the same day the defendant Nathu Lal shall produce the documents regarding the mortgage in the Court.

2. The plaintiff shall also pay Rs. 1300/- to Shri Sugan Chand, defendant No. 4."

The appeal, Civil Appeal No. 11/78/75/86 filed by the respondent No. 1 challenging the judgment/decree of the trial Court was allowed by the District Judge, Sawai Madhopur and the suit was dismissed vide the judgment dated 11th October, 1989.

4. The Second Appeals filed by the appellant were dismissed summarily by the Rajasthan High Court vide its order dated 7th August, 1991. The relevant portion of the order is quoted below :

"Heard the arguments of the learned counsel for the Appellant in the aforesaid both appeals for admission and perused the judgments of the Courts below and the material available on the file.

I do not find any question of law on which the decisions of the lower Courts require inference.

Therefore both the aforesaid appeals being without merits are hereby dismissed."

5. Hence, these appeals.

6. Shri U.N. Bachawat, learned senior counsel, appearing for the appellant contended that the High Court erred in law in summarily dismissing the second appeals filed by the appellant. He further contended that the lower appellate C

Click Here to Read the rest of this document