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2008 Supreme(Mad) 3302
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE G. RAJASURIA
Asmath Kathu
Versus
Lal Khan & Others
A.S.No.200 of 2002
Decided on : 10-09-2008
For the Petitioner:S. Parthasarathy, Senior counsel for Sarvabhauman Associates, Advocates.
For the Respondents:R. Balakrishnan, Advocate.
A release deed can only be executed in favor of a person who has a pre-existing right in the property, and a release deed executed in favor of a third party who has no pre-existing right is void.
Headnote:
GIFT - HIBBA - ORAL GIFT - VALIDITY - RELEASE DEED - VALIDITY - COURT FEE - VALUATION - SUIT - MAINTAINABILITY - EVIDENCE ACT, 1872 - SECTION 114 - ILLUSTRATION (E) - TAMIL NADU COURT FEES AND SUITS VALUATION ACT - SECTION 40.
Fact of the Case:
Purankhan died issueless and intestate. His legal heirs were his brothers, the plaintiff and D3. Purankhan had gifted the suit properties to D2, the daughter of his deceased brother Nabikhan, through an oral gift (Hibba) and had also executed a written document confirming the gift. The plaintiff and D3 executed release deeds in favor of D2, acknowledging the Hibba and relinquishing their rights over the suit properties. The plaintiff filed a suit seeking to ascertain the extent of Purankhan's property, administer his estate, allot half share in the remaining estate, and direct the defendants to pay the costs of the suit. D2 contested the suit, claiming that she had become the absolute owner of the suit properties through the Hibba and the release deeds. The trial court decreed the suit in favor of the plaintiff.
Finding of the Court:
The court held that the Hibba effected by Purankhan in favor of D2 was valid and that the plaintiff and D3 had executed the release deeds in favor of D2, accepting the Hibba. The court also held that the suit was not properly valued and that the correct court fee had not been paid, as the plaintiff should have prayed for the cancellation of the release deeds and valued the suit accordingly. The court further held that the plaintiff had failed to prove that Purankhan had 150 sovereigns of gold jewels and that D2 had appropriated those properties illegally.
Issues: 1. Whether Purankhan validly effected Hibba i.e. oral gift in favor of D2 relating to the immovable properties described in the schedule of the plaint? 2. Whether the plaintiff and D3 executed the release deeds Ex.B3 and Ex.B4 accepting the said Hibba effected by Purankhan in favor of D2? 3. Whether the copy of the sale deed dated 23.2006 executed by D3 in favor of D2 could be admitted as additional evidence in this case. 4. Whether the suit was not properly valid and correct court fee paid? 5. Whether Purankhan owned 150 sovereigns of gold jewels and any other movable property including cash? And if so, whether D2 appropriated illegally those properties? 6. Whether there is any infirmity in the judgment and decree of the trial Court.
Ratio Decidendi: 1. The court relied on the presumption of good faith attached to registered documents under Section 114 of the Evidence Act, 1872, to uphold the validity of the Hibba and the release deeds. The court also considered the testimony of the witnesses who attested the Hibba and the release deeds, and found that they had proved the genuineness of the documents. 2. The court held that the plaintiff and D3 could not challenge the validity of the Hibba and the release deeds, as they had voluntarily and volitionally executed those documents. The court also held that the plaintiff could not invoke the doctrine of non est factum, as he had not taken steps to ascertain the contents of the documents before signing them. 3. The court held that the suit was not properly valued and that the correct court fee had not been paid, as the plaintiff should have prayed for the cancellation of the release deeds and valued the suit accordingly. The court relied on Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, which requires the plaintiff to pay court fee based on the value of the subject matter of the suit. 4. The court held that the plaintiff had failed to prove that Purankhan had 150 sovereigns of gold jewels and that D2 had appropriated those properties illegally. The court noted that the plaintiff had not produced any evidence to support his claim, and that the onus of proof was on him to prove his case.
Final Decision: The court allowed the appeal, set aside the judgment and decree of the trial court, and dismissed the original suit filed by the plaintiff.
This appeal is focussed against the judgment and decree dated 5. 2002 passed in O.S.No.140 of 1996 by the 1st Additional Subordinate Judge, Villupuram. For convenience sake the parties are referred to under according to their litigative status before the trial Court.
2. The portrayal and parodying of the case of the plaintiff could be set out quintessentially and precisely thus:
(a) One Purankhan died issueless and intestate a year and a half, before the institution of the suit, whereas his wife pre-deceased him. Purankhans legal heirs are his brothers, viz., the plaintiff and D3 herein. The property described in the "A" schedule of the plaint was the absolute property of Purankhan. He had bank accounts as set out in the "B" schedule of the plaint. He had cash of Rs.5 lakhs. He lent money to various persons as found detailed in the "C" schedule of the plaint.
.(b) The plaintiff and D3 are entitled to half share each in the suit properties after paying the dues towards Purankhans funeral expenses, debts and legacies, if any.
.(c) D1 is the husband of D2, who is the daughter of late Nabikhan, who was one of the brothers of Purankhan. D1 and D2 had no right or title over Purankhans properties and they could have no claim over it also in any capacity. However, they withdrew the money standing in the account of Purankhan from the Banks as set out in the "B" Schedule.
.(d) In the Panchayat held, D1 and D2 agreed to give half share in the immovable properties and not in the movable properties of deceased Purankhan.
.(e) Jewels weighing 150 sovereigns were pledged by Purankhan with D6 during his life time and in fact, he discharged the major portion of the debt. After the death of Purankhan, D1 and D2, got the 150 sovereigns of jewels from the Bank without producing any succession certificate or any other evidence to establish their right. D1 and D2 therefore are bound to return to the plaintiff and D3 the jewels as set out in the "D" schedule of the plaint.
.(f) There were exchange of notices and from that the plaintiff understood the contention of D1 and D2 as though a Hibba was effected by Purankhan in favour of D2 and subsequently, release deeds executed by the plaintiff dated 12. 1995 and 5. 1995 emerged. The plaintiff was aged about 65 years and illiterate and taking undue advantage of his innocence, D1 fraudently obtained his thumb impressions in blank papers by representiung that the signature/thumb impressions have been obtained for the purpose of getting relief from the government relating to the death of his brother. Such release deeds are nonest in the eye of law.
.(g) The contention of D1 and D2 that D2 was the foster daughter of Purankhan is nothing but an utter falsehood. Accordingly, the plaintiff prayed for the following main reliefs:
"a) to ascertain the extent of the property of the deceased Purankhan and to ascertain and realise the out standings of the deceased Purankhan;
b) to administer the estate of the deceased Purankhan by providing for the funeral and other expenses.
c) to allot half share in the remaining estate of the deceased on a fair and equitable division.
d) to direct the defendants to pay the costs of the suit."
3. Remonstrating and denying, challenging and impugning the allegations/averments in the plaint D2 filed the written statement, the warp and woof of them would run thus:
.(i) The plaintiff and D3 are not the legal representatives of the deceased Purankhan. The second defendant being the daughter of Nabikhan, was brought up by Purankhan, who had no biological child of his own. While so, Purankhan orally gifted the suit properties in favour of D2 and put her in possession of the same during the months of March 1994 itself. By way of confirmation of the said oral gift, he got it recorded in writing on 24. 1994.
.(ii) It was Purankhan who arranged for the marriage of D2 with D1. Since Purankhans wife pre-deceased him, D2 looked after him till this date.
.(ii) The plaint
