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IN THE HIGH COURT OF ORISSA, CUTTACK
A.K. RATH, J.
Jateswar @ Babaji Charan Lenka (Dead) Through LRs. - Appellant
Versus
Parmeswar Lenka and Others - Respondents
Second Appeal No. 349 of 2000
Decided On : 01-03-2019
Gift Deed - Ancestral Property - Indian Evidence Act, Sec. 68, Limitation Act, Article 59, Article 109 - The court discussed the validity of a gift deed executed by the father of the plaintiff in favor of the defendant, the possession of the gifted property, and the applicability of the Limitation Act. It highlighted the provisions of the Indian Evidence Act, the requirement for attesting witnesses, and the interpretation of the Limitation Act. The court found that the gift deed had not been acted upon, and no title had been conveyed to the defendant.
Fact of the Case:
The plaintiff filed a suit to declare a gift deed null and void, claiming that the gifted property was ancestral. The defendant contended that the gift deed was valid and had been acted upon.
Finding of the Court:
The appellate court held that the gift deed was void as it was executed without the consent of the plaintiff, and the defendant had not proved the contents of the deed as required by the Indian Evidence Act. The suit was not barred by limitation under Article 109 of the Limitation Act.
Issues: Validity of the gift deed, possession of the gifted property, and applicability of the Limitation Act.
Ratio Decidendi: The gift deed was void as it was executed without the consent of the plaintiff, and the defendant had not proved the contents of the deed as required by the Indian Evidence Act. The suit was not barred by limitation under Article 109 of the Limitation Act.
Final Decision: The appeal was dismissed as it was found to be without merit.
JUDGMENT :
A.K. Rath, J.
Defendant no.1 is the appellant against a reversing judgment.
2. Plaintiff-Respondent no.1 instituted the suit for declaration that the gift deed dated 5.3.1964 executed by his father Muralidhar Lenka in favour of defendant no.1 is null and void. Case of the plaintiff was that Schedule-A property was the ancestral property of the plaintiff. The same was recorded in the name of his grand father Khetrabasi Lenka in the year 1930. Khetrabasi died in the year 1939 leaving behind his son Muralidhar, father of the plaintiff and Bani Bewa. Muralidhar died in the year 1974 leaving behind his son plaintiff no.1, widow Suma Bewa and his mother Bani Bewa. Out of surplus Schedule-A property, his father acquired Schedule-B property. The same was blended in the joint family property. Since he was suffering from various diseases, his father brought defendant no.1 to look after the cultivation work and house hold affairs. His father was ill and bed-ridden. Defendant no.1, on the pretext to execute the power of attorney, took his father to the Sub-Registrar Office, Kendrapara and obtained a gift deed, Ext.1 in the guise of power of attorney in connivance with scribe and attesting witness. In the gift deed, it was mentioned that his father was issueless. Subsequently, his father came to know that the document was the gift deed, but not a power of attorney. Defendant no.1 admitted his guilt. He made an endorsement on the back side of Ext.1 on 17.1.1967 that he had no claim over the property. It was further pleaded that the plaintiff and defendants 2 and 3 were in joint possession of the gifted property. Defendant no.1 had no semblance of right, title and interest over the gifted property. The gift deed had not been acted upon. Muralidhar and after him, the plaintiffs are in possession of the suit land. Other defendants are purchasers from plaintiffs except defendant no.5, who has purchased some portion of the suit land from defendant no.1. Cause of action arose on 11.9.1984, when defendant no.1 laid a claim over the gifted properties.
3. Defendant no.1 entered appearance and filed the written statement pleading, inter alia, that the plaintiff had left his home when he was around 10-12 years old. Defendant no.1 was staying with the father of the plaintiff. As the defendant no.1 was looking after the cultivation work, plaintiff's father executed the gift deed, Ext.1, on 5.3.1964 and delivered possession of the gifted property.
4. Defendant no.5 filed a written statement pleading, inter alia, that the plaintiff at his early age left the house and returned after the death of his adoptive father. Defendant no.1 had performed the obsequies of the father of the plaintiff. Defendant no.1 was looking after the cultivation work of the father of the plaintiff. Out of love and affection, the father of the plaintiff executed Ext.1 in favour of defendant no.1. Defendant no.1 was owner in possession of the gifted property. He alienated Ac.12.05 dec. of land in favour of defendant no.5 on 7.6.1983 for a consideration of Rs.3000/- and thereafter delivered possession.
5. Stemming on the pleadings of the parties, the trial court struck seven issues. Parties led evidence, oral and documentary. The trial court dismissed the suit with the finding that the plaintiff has failed to prove that the gift deed, Ext1, was obtained fraudulently. Defendant no.1 is in possession of the suit land. The suit is barred by limitation. Felt aggrieved, plaintiff filed Title Appeal No.45 of 1991 before the Addl. District Judge, Kendrapara. The appellate court came to hold that the suit land including the gifted land was the undivided joint family co-parcener property of Muralidhar and the plaintiff. The plaintiff
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