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1996 Supreme(P&H) 1135
PUNJAB & HARYANA HIGH COURT
R.L.Anand, J.
Kirpal Singh
Versus
Aas Kaur
Second Appeal No. 78 of 1983,
Decided On : AUGUST 2, 1996
The presumption under Section 90 of the Indian Evidence Act can be extended to the contents of the document, provided that the document is properly executed and attested.
Headnote:
GIFT DEED - VALIDITY - PRESUMPTION UNDER SECTION 90 OF THE INDIAN EVIDENCE ACT - APPLICABILITY - CONTENTS OF THE DOCUMENT - EXECUTION AND ATTESTATION - PROOF - BURDEN OF PROOF.
Fact of the Case:
The plaintiffs filed a suit for declaration of ownership of 215 Kanals 12 Marlas of land in village Shur, Gurdaspur, claiming that they were the legal heirs of Kharak Singh and Bhagtu, who had executed a gift-cum-will in their favor. The defendants, who were the sons of Bhagtu and the donees under a gift deed executed by Kharak Singh and Bhagtu, contested the suit, claiming that the gift-cum-will was invalid and that the gift deed in their favor was valid. Both the trial court and the first appellate court found that the gift-cum-will was valid and that the plaintiffs were entitled to a 1/3rd share in the suit property, while the defendants were entitled to the remaining 2/3rd share.
Finding of the Court:
The High Court held that the gift-cum-will executed by Kharak Singh and Bhagtu in favor of the plaintiffs was valid and that the plaintiffs were entitled to a 1/3rd share in the suit property. The Court also held that the gift deed executed by Kharak Singh and Bhagtu in favor of the defendants was valid and that the defendants were entitled to the remaining 2/3rd share in the suit property. The Court further held that the presumption under Section 90 of the Indian Evidence Act could be extended to the contents of the document, provided that the document was properly executed and attested.
Issues: 1. Whether the gift-cum-will executed by Kharak Singh and Bhagtu in favor of the plaintiffs was valid? 2. Whether the gift deed executed by Kharak Singh and Bhagtu in favor of the defendants was valid? 3. Whether the presumption under Section 90 of the Indian Evidence Act could be extended to the contents of the document?
Ratio Decidendi: 1. The Court held that the gift-cum-will executed by Kharak Singh and Bhagtu in favor of the plaintiffs was valid because it was properly executed and attested, and because the plaintiffs had proved that they were the legal heirs of Kharak Singh and Bhagtu. 2. The Court held that the gift deed executed by Kharak Singh and Bhagtu in favor of the defendants was valid because it was properly executed and attested, and because the defendants had proved that they were the donees under the gift deed. 3. The Court held that the presumption under Section 90 of the Indian Evidence Act could be extended to the contents of the document because the document was properly executed and attested, and because the document was more than 30 years old.
Final Decision: The High Court partly allowed the appeals, modified the judgment and decree of the Courts below, and passed a decree for joint possession to the extent of 1/3rd share in equal shares in favor of the plaintiffs-appellants, leaving the parties to bear their own costs.
1. By this judgment I dispose of two Regular Second Appeals Nos. 78 and 79 of 1978 filed by unsuccessful plaintiffs Sarvshri Kirpal Singh and Rachpal Singh and both the appeals have been directed against the judgment and decree dated 25-10-1982 passed by the Court of Additional District Judge, Gurdaspur, who accepted two Civil Appeals filed by the two sets, of defendants and set aside the judgment and decree of the Additional Senior Sub-Judge (trial Court), Gurdaspur, dated 30-9-1981, who decreed the suit of the plaintiffs for declaration to the effect that they are the owners of the suit land as prayed for.
2. The pleadings of the parties can be summarised in the following manner :-
The plaintiffs in the trial Court Sarvshri Kirpal Singh and Rachhpal Singh sons of Fauja Singh filed a suit for declaration against Aas Kaur widow of Jagat Singh, Ajit Singh, Baldev Singh (both sons of Jagat Singh), Kartar Singh, Nath Singh both sons of Sunder Singh) Puro, Kanto, Mindo (daughters of Tara Singh), Chur Singh Gurmit, Singh, Chindo wife of Randhir Singh, Dalip Singh, Makhan Singh, Jit Singh and Bakhshish Singh (defendants) to the effect that they are the owners of the land measuring 215 Kanals 12 Marlas shown in the head note of the plaint situated in village Shur, Tehsil and District Gurdaspur and the case set up by the plaintiffs was that Kharak Singh and Bhagtu sons of Wazira were the owners of the suit land and they during their life-time executed a gift-cum-will in favour of Fauja Singh, who was the father of the plaintiffs. Said Fauja Singh was the nephew of Sarvshri Kharak Singh and Bhagtu. Kharak Singh died in the year 1967 and Bhagtu Died in the year 197071. Both of them were unmarried and they died issueless. Defendant No. 1 Smt. Aas Kaur alleges herself to be the daughter of Bhagtu. Defendants Nos. 2 and 3, namely, Ajit Singh and Baldev Singh are the sons of defendant No. 1 Aas Kaur and they alleged that Bhagtu executed a will regarding the suit land in their favour. According to the plaintiffs, Bhagtu and Kharak never executed any will in favour of defendants Nos. 2 and 3. Defendants Nos. 3 to 5 and father of defendants Nos. 6, 7, 8 and 9 to 13 alleged that they are the nephews of Kharak Singh and Bhagtu and they propounded a gift deed in their favour alleged to have been executed by Kharak Singh and Bhagtu. The plaintiffs allege that defendant Nos. 3 to 12 are not related to Kharak Singh or Bhagtu and the latter did not execute any document in the shape of gift deed in their favour. The plaintiffs allege that they are the sole legal heirs of Kharak Singh and Bhagtu, being their nephews. The defendants have illegally got the land mutated in their favour at the back of the plaintiffs and the said mutation is not binding upon the rights of the plaintiffs.
3. A joint written statement was filed by defendant Nos. 1 to 3 and their stand was that Kharak Singh and Bhagtu were the original owners. The gift deed-cum-will dated 7/8-71932 (Exhibit P8), relied upon by the plaintiffs, is a fabricated one and not a genuine document. Kharak Singh died earlier to the death of Bhagtu and Bhagtu is stated to have died about five years prior to the filing of the written statement by the defendants in the trial Court. The estate of Kharak Singh was mutated in the name of Bhagtu, who died leaving behind Smt. Aas Kaur defendant No. 1 and Ajit Singh and Baldev Singh, defendants Nos. 2 and 3, are the sons of Smt. Aas Kaur. Bhagtu was the father of Aas Kaur and he executed a will in favour of defendant Nos. 2 and 3. According to these defendants, Kharak Singh and Bhagtu had not executed any will in favour of any other person. Relationship of the plaintiffs vis-a-vis Kharak Singh and Bhagtu was also denied. These defendants stated that the estate of Bhagtu and Kharak Singh has been rightly sanctioned in favour of defendants Nos. 1 to 3. The land has also been mutated in favour of defendants Nos. 4 to 12 in the absence of defendants Nos. 1 t
