Judgment:
H.V.G. Ramesh, J.
1. This second appeal is by the defendant being aggrieved by the judgment and decree passed by the Prl. Civil Judge (Sr.Dvn), Jamkhandi in RA 1/1998.
2. Plaintiff had filed a suit for declaration and injunction and in the alternative for possession, before the Civil Judge (Jr.Dvn), Jamkhandi in OS 98/1992.
3. It is stated in the plaint that one Bhavu Pawar had two issues, one by name Ramappa, and another by name Rukamavva. Ramappa had a son by name Bhavu and Parvathibai, the plaintiff is his wife. The said Bhavu predeceased Parvathibai. Plaintiff claims the suit property stating that it is gifted to her husband by Rukmavva, his maternal aunt and she also sought for declaration and injunction and in the alternative, for possession. The defendants claim to be the son of Tukaram who is none other than the brother of Parvathibai. It appears, according to the plaintiff, the property was gifted to her husband as early as in the year 1940 by Rukmavva under a registered gift deed. According to the plaintiff, there was no vardhi given to the respondent authorities with respect to the gift as she is a rustic villager. On the death of her husband, she being a widow came under the care and custody of the defendants and as such, the property was enjoyed and possessed by the plaintiff. She was given an impression that the property was entered in her name on the death of her husband. Accordingly, when her right to property was denied, she filed a suit for declaration and injunction and in the alternate, for possession contending that defendants have played fraud on her and got entered their name in the suit property although the property was gifted to her husband from his aunt
4. The suit was resisted by the defendants contending that the suit is barred by limitation and court has no jurisdiction and that there is no such gift deed executed in favour of the husband of the plaintiff and that the gift is not validly proved.
5. Based on the pleadings, the trial court raised as many as eight issues and one additional issue. After trial, the trial court held that Parvatibai proved the gift deed in favour of her husband which is dated 23.9.1940 and also held that defendants have played fraud on her and got the entry made in their favour in the revenue records. Although, issue No. 5 is held in the negative to the effect that plaintiff failed to prove that she was in lawful possession at the suit property, on the other hand, while answering this, it has held that plaintiff is entitled for the relief of declaration and possession. Accordingly, the trial court decreed the suit of the plaintiff against which defendants preferred an appeal before the Prl. Civil Judge Judge (Sr.Dvn), Jamkhandi who in turn, dismissed the appeal filed by the appellants while confirming the judgment and decree passed by the Prl. Civil Judge (Jr.Dvn.) Jamkhande.
6. It appears, cross objection was also filed before the lower appellate court as to the finding on issue No. 5. The lower appellate court after bearing the parties, held the said issue in favour of the plaintiff. Aggrieved by the order passed in appeal, defendants are before this Court in this second appeal.
7. At the time of admission, the following substantial question of law was raised by this Court on 5.1.2000:
When the original of the gift deed had not been produced, whether the courts below committed an error of law in raising presumption under Section 90 of the Evidence Act about the execution of the gift deed?
8. Heard the counsel for the appellant and the respondent.
9. Counsel for the appellants has vehemently contended that the suit is barred by limitation and that aspect has not been considered by the trial court as well as by the lower appellate court and also for want of pecuniary jurisdiction i.e., the Civil Court (Jr.Dvn), had no jurisdiction to try the suit as the subject matter of the suit was valued more than Rs. 50,000/- and that the plaintiff failed to prove the gift deed in favour of her husband in the absence of any original deed as per Section 90 and 63 of the Indian Evidence Act and, secondary evidence cannot be accepted and presumption cannot be drawn in the absence of any such original document. In support of his argument, learned Counsel has relied upon the decision of this Court in the case of G. Chikkapapanna @ G.C. Papanna v. Kenchamma since dead by LRs. : ILR1998KAR3450 .
10. Per contra, counsel for the respondent submitted that admittedly appellant is a rustic villager and she was dependant on the defendants and she was kept ignorant of the records. Only from the date of knowledge, she filed a suit for declaration and injunction i.e., well within three years from the date of knowledge and also submitted, since this property in the other partition suit proceedings is valued at Rs. 50,000/-, question of valuation of the suit property at Rs. 70,000/- does not arise and even the said Rs. 70,000/- mentioned is in respect of two items of property of which one of the property is the subject matter of the suit valued at Rs. 50,000/- and not more than that and further, the gift deed in favour at the husband of the plaintiff was in the year 1940 and it has got a presumptive value and more over, it was a registered gift and this secondary evidence has to be accepted in view of the fact that it has been obtained from proper source and produced and in such circumstance, no doubt can be thrown on the same. As such, both the courts below in a concurrent finding have held that the plaintiff is the owner of the suit property and accordingly passed an order of declaration and also for possession and rightly an injunction has been granted in favour of the plaintiff. In support of his argument, learned Counsel has relied upon the decision in the case of Sri Lakhi Baruah and Ors. v. Sri Padma Kanta Kalita and Ors. AIR 1996 SC 12553.
11. In the light of the arguments advanced, let me consider the substantial question of law raised.
12. At the outset, let me go through the provisions of Section 63 & Section 90 of the Indian Evidence Act.
13. As per Section 63 of the Evidence Act, secondary evidence means and includes certified copies given under the provisions, copies made from the original by mechanical process and copies compared with such copies; copies made from or compared with the original; counter parts of documents as against the parties who did not execute them; oral account of the contents at the documents which is given by some person who has himself seen it.
14. Section 90 refers to presumption as to documents thirty years old. If any document purporting or proved to be thirty years old is produced from any custody which the court considers in the particular case as proper, the court may presume that the signature and every other part of such document, which purports to be in the hand writing of any particular person is in that person's hand writing, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
15. In the instant case, as noticed even assuming on the point of limitation whether the lower appellate court has rightly discussed this aspect as per Article 38 of the Limitation Act, a suit for declaration has to be filed within three years when the right to sue first occurs. Similarly, Article 56 & 57 also provides for three years in respect of a suit to declare the forgery of an instrument issued or registered or to obtain a declaration that an alleged adoption is invalid, or never in fact took place. The lower appellate court while considering the pleas of both plaintiff and defendants has come to a conclusion that it is Article 58 of the Limitation Act which is applicable and not Article 113. It has also noted that Article 113 of the Limitation Act provides limitation of three years for any suit for which no limitation period is provided else where in the Schedule whereas as per Article 58, the period of limitation commences when the right to sue first occurs. Noting that the plaintiff has approached the Court claiming her right based on the gift deed to her husband by one Rukmavva and it is a relief of legal character in respect of the suit property as such, the appellate court has inferred that Article 58 of the Limitation Act applies. Noting the specific stand taken by the plaintiff that that she was under the shelter of the defendants and she was kept ignorant of the status of the property and also that the gifted property was not entered in her name and only on coming to know that, she has approached the Court, the appellate court was of the view that despite the fact that the appellants have taken the plea as to mutation proceedings and though their names have been entered in the revenue records in respect of the suit property and as such, they contend that it is barred by limitation, the appellate court was of the view that the proceedings held before the revenue courts will not be sufficient to hold that these proceedings actually give the starting point of limitation. The lower appellate court has also noted that the defendants have filed a partition suit OS 23/1992 against the deceased Tukaram and others and the date of filing of that suit should be taken as the starting point of limitation and within three years of that suit, the plaintiff had preferred a suit which is well within the two months from the date of suit for partition filed by one of the appellants. I do not find any illegality in the order of both the courts below on this aspect. More over, the plaintiff is also shows to have filed the suit well within three years from the date of knowledge.
16. In so far as specific substantial question of law raised is concerned, learned Counsel for the appellants has relied upon the decision of this Court wherein it is held that the books maintained in the Sub-Registrar's Office during the course of registration, in which the document is copied out, may be said or termed to be public document but, that does not make the original deed a public document by itself. The sale deed, mortgage deed, gift deed etc., entered into between private parties remain private documents and do not become public documents by reason of registration. Accordingly, it is the stand of the appellants that it is a private document and the same has not been proved as per requirement under the provisions of the Evidence Act.
17. In Lakhi Baruah and Ors. case cited supra, referring to Section 90 of the Evidence Act the Apex Court has held that presumption under Section 90 does not apply to a copy or certified copy even though thirty years old. But, if a foundation is laid for the admission of secondary evidence under Section 63 of the Evidence Act by proof of loss of destruction of the original document and the copy of which is thirty years old is produced from proper custody, then only the signature authenticating the copy may under Section 90 be presumed to be genuine.
18. In the case of hand, it is the specific case at the plaintiff that she lost the gift deed which was executed in favour of her husband by one Rukmavva and she sought to produce Ex. P7 the certified copy of the original which was said to be executed during 1940 and registered and this certified copy is shown to have been obtained from the custody of the Sub-Registrar, which is more than thirty years old and which carries a presumption as held by the Apex Court. The plaintiff has laid the foundation for the admission of the secondary evidence viz, for having lost the document i.e., the original gift deed and in proof of the same certified copy of the gift deed in respect of the property in question was produced issued from the document or original maintained by the Sub-Registrar's Office. More over, the trial court as well as the lower appellate court having accepted the document have rightly held that there is a gift deed executed in favour of the plaintiff's husband. As a matter of fact finding when both the courts below have appreciated the evidence of the plaintiff and held in her favour, and as per the legal position under the provisions of Section 63 and Section 90 of the Evidence Act, the stand of the plaintiff has been duly established and when such a stand is supported by the ratio laid down by the Apex Court I do not find any illegality in the impugned order passed by both the courts below.
19. Of course the decision relied upon by the appellant's counsel is with regard to a copy of the document sought to be produced in respect of which there was no discussion as to the application of Section 90 of the Evidence Act as such, presumptive value was not drawn. In the circumstances, this Court was of the view that mere secondary evidence cannot be relied upon in the absence of the plaintiff calling upon the defendant to produce the concerned Deed said to have been executed wherein the question of execution of the deed itself was in question. Unlike that, in the instant case it is one Rukmavva who is said to have executed the gift deed in favour of the husband of the plaintiff which the defendants have disputed and there was no other document in favour of the defendants to claim their right except the revenue entries made in the records. May be as noted by both the courts below, as the plaintiff also being helpless and she lived along with the defendants and under the presumption that her name has been entered in the revenue records, she must have kept quite without verifying the entries in the revenue records and in the usual course the appellants have got entered their name in the revenue records without there being any right and title over the same but, the same cannot confer any right or title to the appellant to claim a better title over the plaintiff.
20. In such circumstances, both the courts below in a concurrent finding have held in favour of the plaintiff. I do not find any illegality in the orders of the courts below. While answering the substantial question of law in favour of he plaintiff, the appeal filed by the defendants is hereby dismissed. No order as to costs.