Nila Dei and anr. Vs. Bidyadhar Sahani and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - defendants 1 and 2 contested the case on the ground that though bairagi was a rheumatic patient he never lost his mental alertness and while executing the deed of gift he understood the contents thereof and being satisfied with signed the same in presence of witnesses. it is further submitted that in view of the admitted case of the plaintiff that bairagi was a chronic rheumatic patient, it could be inferred that bairagi was not in a fit mental state and therefore onus lay on the defendants to prove that he was in a fit state of mind and this defendant failed to do and therefore the judgment is liable to be set aside. 6 the attesting witnesses, it is apparently clear that the defendants failed to prove that the document was duly attested by two attesting witnesses as per the mandatory provisions under section 123 of the transfer of property act. the materials on record disclose that the document was executed in a suspicious circumstance and defendants have failed to discharge the burden to prove that bairagi was in a fit state of mental health at the time of execution of gift deed.d.m. patnaik, j.1. this is an appeal against the judgment of the learned sub-judge, bhubaneswar in a suit for partition.case of the plaintiff is, bairagi sahani died on 8-2-1976 leaving behind plaintiffs 1 and 2 and defendants 2 to 4. the property in question consist of movable and immovables. after death of bairagi all the sisters arc entitled to their respective shares in the property of bairagi. but defendant no. 1, husband of defendant no. 2 (sister of the plaintiff) put forth a claim in respect of the entire properties by virtue of a deed of gift purported to have been executed by bairagi. it is plaintiffs case that bairagi at the time of execution of gift deed was extremely old and both physically and mentally ailing. therefore, execution of such a deed under suspicious circumstances did not convey any title in respect of the properties of bairagi.defendants 1 and 2 contested the case on the ground that though bairagi was a rheumatic patient he never lost his mental alertness and while executing the deed of gift he understood the contents thereof and being satisfied with signed the same in presence of witnesses.2. the lower court framed the following issues :(1) is the suit maintainable? (2) have the plaintiffs any cause of action for the suit? (3) is the deed of gift executed by late bairagi in favour of d/l and 2 valid in law? (4) to what relief, if any, are the plaintiffs entitled? the learned subordinate judge under issue no. 3 held that bairagi executed the deed of gift in a fit state of mind and therefore dismissed the plaintiffs' suit.3. none appears for the respondents. mr. s. n. satpathy learned counsel for the plaintiffs-appellants drew attention of this court to the relevant portion of the judgment, evidence on record and strenuously urges that the learned sub-judge committed gross error in overlooking the provisions of law relating to the execution of deed of gift by a person with mental debility. it is strenuously urged by mr. satpathy that admittedly few hours after the execution of the deed bairagi died. it is further submitted that in view of the admitted case of the plaintiff that bairagi was a chronic rheumatic patient, it could be inferred that bairagi was not in a fit mental state and therefore onus lay on the defendants to prove that he was in a fit state of mind and this defendant failed to do and therefore the judgment is liable to be set aside.this contention of mr. satpathy needs examination.4. section 122 of the transfer of property act defines 'gift' is a transfer of certain existing movable and immovable properties made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.section 123 of the said act prescribes the mode of execution of gift deed and also prescribes that the transfer must be effected by registered instrument and attested by two witnesses.admittedly, scribe has not been examined. d.w. 6 is the only witness who has stated about the execution by bairagi and attestation by himself. the material part of the evidence in the examination-in-chief is as follows :'...... bairagi was my first cousin. he sent forme to witness the execution of deed of gift. on my arrival i found the scribe preparing a draft on the instruction of my cousin. it was read over and admitting the same correct bairagi directed to copy it down in stamp paper. after the writingwas over it was read over and bairagi himself also read it. then he signed in my presence. i signed it as an attesting witness in presence of bairagi. it is not a fact that the deed was executed while bairagi was senseless.'in the cross-examination he stated that when he arrived, there was no document kept at the spot. the scribe arrived with four persons whom he did not know. bairagi produced the patta and pautis and he did not count how many. it took an hour to complete the writing. after signing the document he left. by then others were still waiting, seven to eight days after that incident bairagi died. he was not present on the date of registration.5. certified copy of the document has been marked as ext. b. admittedly, original was not produced for proof of the same though it is the case of the defendants that same was available with the sub-registrar for under valuation of the properties and for payment of insufficient stamp duty. in such circumstances, this was not a sufficient reason not to produce the original document but prove the contents thereof by way of secondary evidence. the trial court has not taken into account this deficiency. that apart, execution is found to be on 4-2-76. registration was done as is apparrant on 7-2-1976 and bairagi died on 8-2-1976. the death of bairagi only four days after the execution was itself a circumstance which justified to draw an inference that perhaps bairagi was not in a fit state of mental health. further, evidence of the only attested witness does not speak as to when and on what date or month or year the deed was executed. he is also silent where the deed of gift was executed though it is the admitted case of the defendant that it was executed in the house of bairagi obviously because bairagi was not able to move about. this fact is not corroborated by d.w-6. the witness did not state attestation of the document by the other attesting witness as per requirement of law. d.w. 5 is none other than defendant no. 1, son-in-law of bairagi. in para-3 of his examination-in-chief he stated that bairagi executed a deed of gift in his favour and in favour of his wife and this was about five to six days prior to death of bairagi. the material part of his evidence in cross-examination is that he was youngest of three sons of his father and his village is dhalasahiwhich is about 2 k.ms. from kudiary. bairagi suggested to his father that he would take him as illetom son-in-law, for which his father agreed and after his marriage he has not gone to his village and had been staying with bairagi. bairagi developed rheumatism three to four years before his death and colic for about a year. for the first time he went to sub-registrar office with d.w. 4. he signed the petition filed before the sub-registrar for registration of the document in the house of bairagi. the sub-registrar did not give him a definite date or time, nor did he went to him subsequently to ascertain the date for execution of the deed in the house of bairagi. he came around 4.30 p.m. to 5 p.m. he was on leave for seven days, commencing from the day he had been to the sub-registrar. only the sub-registrar and the scribe came and nobody else. before the sun set the registration was over. one maheswar naik of his village was one of the attestors. bairagi screamed out of colic pain and then collapsed.6. reading the evidence of d. w. 5-bidyadhar sahani and d.w. 6 the attesting witnesses, it is apparently clear that the defendants failed to prove that the document was duly attested by two attesting witnesses as per the mandatory provisions under section 123 of the transfer of property act. no evidence has been laid that the other attesting witness also saw bairagi putting the signature on the deed of gift at the time of execution. evidence of d.w. 6 the attesting witness seems to be extremely shaky with regard to the execution of the gift deed as has been observed above. the materials on record disclose that the document was executed in a suspicious circumstance and defendants have failed to discharge the burden to prove that bairagi was in a fit state of mental health at the time of execution of gift deed. the document, i.e. deed of gift being invalid in the eye of law cannot convey the title in respect the properties. defendants 1 and 2 have acquired no title under ext. b for which the plaintiffs suit has to be decreed.7. in the result, the appeal is allowed. lower court judgment is set aside. no cost.