Sukhdev Singh Vs. Harbhajan Singh and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/627737
SubjectCivil
CourtPunjab and Haryana High Court
Decided OnFeb-27-1992
Case NumberRegular Second Appeal No. 901 of 1979
Judge G.R. Majithia, J.
Reported in(1992)102PLR366
ActsTransfer of Property Act, 1882 - Sections 122 and 123
AppellantSukhdev Singh
RespondentHarbhajan Singh and ors.
Appellant Advocate H.L. Sarin, Sr. Adv. and; Ashish Handa, Adv.
Respondent Advocate S.C. Kapur, Sr. Adv. and; Ashish Kapur, Adv.
Cases ReferredPiara v. Fattu
Excerpt:
- - the first appellate court invalidated the gift deed on the ground that the plaintiff and his wife had been serving the donor before his death ;that the donor was a man of weak intellect and he had fallen down from the stairs ;that the one attesting witness of the gift deed was produced and no reliance can be placed on his testimony since he was suspended from the office of lambardar and was asked to relinquish charge. the registration of the gift deed by the registering officer is a prima facie strong evidence that it was executed by a person by whom it purports to be and that registering officer after satisfying himself about the identity of the executant from the attesting witnesses registered the document. the essential conditions are fully satisfied in the instant case. 8. the first appellate court was in error in invalidating the gift deed on the ground that the plaintiff and his wife were serving the donor ;that the donor had fallen from the stairs and was a person of weak intellect; failure to do so, leads to an inference that the claim was hallow. as observed earlier, the gift deed was duly registered and the certificate endorsed on it by the registering office is a relevant piece of evidence for proving the just execution.g.r. majithia, j.1. defendant, doneeappellant, has assailed the judgment and decree of the first appellate court reversing on appeal those of the trial judge and decrteing the suit of the plaintiff-respondent for possession of 1/8 share of the disputed property in this regular second appeal.2. the facts: --sunder singh was the owner of the property in dispute; that he died on july 13, 1973 leaving behind four sons and four daughters ; that he had gifted the suit land vide gift deed, dated june 23, 1973 in favour of his grandson sukhdev singh (herein-after referred to donee defendant) ; that harbhajan singh, one of the sons of the donor, challenged the gift deed in the suit on the ground that it was a forged document and some body impersonated the donor before the sub registrar and that the suit property would devolve upon all the natural heirs of the deceased. the suit was resisted by the donee-defendant. he maintained that sunder singh deceased executed a valid gift deed in his favour for the services rendered by him.3. from the pleadings of the parties, the following issues were framed: --1. whether the plaintiff is owner in possession of the property in suit as heir of sunder singh deceased opp2. whether valid gift has been executed in favour of the defendant no. 1 by sunder singh deceased if so, to what effect opd3. whether defendant no. 1 is in possession of the property in dispute by virtue of gift deed executed in his favour opd4. whether the suit in the present form is maintainable ?5. relief.4. the trial judge answered issue no. 2 in favour of the donee-defendant and held that the donor executed a valid gift deed in his favour; issue no. 3 was also decided in favour of the donee-defendant and it was held that the donee-defendant was in possession of the suit land. in view of the decision under issue no. 2, it was held that the plaintiff was not in possession of the suit land and the suit was accordingly dismissed.5. the plaintiff aggrieved from the judgment and decree of the trial judge challenged the same in first appeal. the first appellate court invalidated the gift deed on the ground that the plaintiff and his wife had been serving the donor before his death ; that the donor was a man of weak intellect and he had fallen down from the stairs ; that the one attesting witness of the gift deed was produced and no reliance can be placed on his testimony since he was suspended from the office of lambardar and was asked to relinquish charge.6. learned counsel for the donee-defendant submitted that the donor executed a valid gift deed in his favour and that the first appellate court took into consideration irrelevant matters to invalidate the gift deed there is substance in the submission made. the following are the essentials of a gift :(i) there must be a donor and donee ;(ii) the subject matter of gift must be a certain existing property ;(iii) the gift must be voluntarily and without consideration ;(iv) there must be transfer on the part of the donor ;(v) there must be acceptance by or on behalf of the donee, and such acceptance must be made during the lifetime of the donor ;(vi) in the case of immovable property, transfer must be effected by a registered instrument signed by or on behalf of the donor and attested at least by two witnesses.7. the donor gifted the land measuring 14 kanals 12 marias comprised in khasra nos. 2539/2450, 2538/2450, 1883/1 to 1440, 1884/1 to 1440, 1885/1 to 1440, 2018/1 to 1440, 2129/1 to 1440, 2151/1 to 1440, khata no. 124/228, situated in the revenue estate of khanpur to the donee defendant vide gift deed, dated june 23,1973. the gift was accepted by the donee and in token thereof, he appended his signatures on it. it is attested by lambardar bakhshish singh of village khan pur and by one labh singh resident of the same village. the gift detd was presented for registration before the sub registrar on june 3, 1973 it was read over to the donor and the witness by the sub registrar and they appended their signatures in token of its correctness before the sub registrar. the donee also appended his signatures before the sub registrar. after the correctness of the gift deed was affirmed by the donor, donee and the witnesses, the gift deed was attested by the registering officer. the registration of the gift deed by the registering officer is a prima facie strong evidence that it was executed by a person by whom it purports to be and that registering officer after satisfying himself about the identity of the executant from the attesting witnesses registered the document. the essential conditions are fully satisfied in the instant case. mutation, dated january 30, 1974, exhibit d-l, was also attested in favour of the donee by the revenue officer.8. the first appellate court was in error in invalidating the gift deed on the ground that the plaintiff and his wife were serving the donor ; that the donor had fallen from the stairs and was a person of weak intellect; that one of the attesting witnesses, namely, labh singh was not produced and the other attesting witness, who was examined at the trial, could not be relied upon for the reason that he was suspended from the office of lambardar. the considerations for which the gift deed has been declared to be invalid are not only irrelevant but illegal too. the first appellate court did not examine the matter in correct and legal perspective. it was only called upon to determine whether the gift deed was executed by the donor or not. he could not introduce suspicious circumstances which are pressed into service to determine the validity of a will. the gift and the will do not stand at par with each other. if the appellate judge had examined the validity of the gift in the light of mandate of sections 122 and 123 of the transfer of property act, he would not have fallen into errors as done in the instant case.9. the first appellate court did not appreciate that the plaintiff had challenged the gift deed on the ground that it was a forged document. in other words, he admitted the execution of the gift deed but labelled it as a forged document. according to him, some body impersonated for the donor before the sub registrar. the donor has led prima facie proof of the due execution of the gift. the onus shifts on the plaintiff to prove that it was a forged document. no evidence was led by him to prove that it was a forged document. if his allegation was true, there was no difficulty for him to prove the assertion by getting thumb impressions of the donor on the gift deed compared with some admitted thumb impressions. failure to do so, leads to an inference that the claim was hallow. as observed earlier, the gift deed was duly registered and the certificate endorsed on it by the registering office is a relevant piece of evidence for proving the just execution. it will be useful to refer to the following observations made in piara v. fattu, (1929) 30 p. l. r. 138.'the registration is a solemn act, to be performed in the presence of a competent official appointed to act as registrar, whose duty it is to attend the parties during the registration and see that the proper persons are present, are competent to act, and are indentified to his satisfaction ; and all things done before him in his official capacity and verified by his signature will be presumed to be done duly and in order.'10. for the reasons aforesaid, the appeal succeeds. the judgment and decree of the first appellate court are set aside and those of the trial court are restored. no order as to costs.
Judgment:

G.R. Majithia, J.

1. Defendant, doneeappellant, has assailed the judgment and decree of the first Appellate Court reversing on appeal those of the trial Judge and decrteing the suit of the plaintiff-respondent for possession of 1/8 share of the disputed property in this regular second appeal.

2. The facts: --

Sunder Singh was the owner of the property in dispute; that he died on July 13, 1973 leaving behind four sons and four daughters ; that he had gifted the suit land vide gift deed, dated June 23, 1973 in favour of his grandson Sukhdev Singh (herein-after referred to donee defendant) ; that Harbhajan Singh, one of the sons of the donor, challenged the gift deed in the suit on the ground that it was a forged document and some body impersonated the donor before the Sub Registrar and that the suit property would devolve upon all the natural heirs of the deceased. The suit was resisted by the donee-defendant. He maintained that Sunder Singh deceased executed a valid gift deed in his favour for the services rendered by him.

3. From the pleadings of the parties, the following issues were framed: --

1. Whether the plaintiff is owner in possession of the property in suit as heir of Sunder Singh deceased OPP

2. Whether valid gift has been executed in favour of the defendant No. 1 by Sunder Singh deceased If so, to what effect OPD

3. Whether defendant No. 1 is in possession of the property in dispute by virtue of gift deed executed in his favour OPD

4. Whether the suit in the present form is maintainable ?

5. Relief.

4. The trial Judge answered issue No. 2 in favour of the donee-defendant and held that the donor executed a valid gift deed in his favour; issue No. 3 was also decided in favour of the donee-defendant and it was held that the donee-defendant was in possession of the suit land. In view of the decision under issue No. 2, it was held that the plaintiff was not in possession of the suit land and the suit was accordingly dismissed.

5. The plaintiff aggrieved from the judgment and decree of the trial Judge challenged the same in first appeal. The first Appellate Court invalidated the gift deed on the ground that the plaintiff and his wife had been serving the donor before his death ; that the donor was a man of weak intellect and he had fallen down from the stairs ; that the one attesting witness of the gift deed was produced and no reliance can be placed on his testimony since he was suspended from the office of lambardar and was asked to relinquish charge.

6. Learned counsel for the donee-defendant submitted that the donor executed a valid gift deed in his favour and that the first Appellate Court took into consideration irrelevant matters to invalidate the gift deed There is substance in the submission made. The following are the essentials of a gift :

(i) There must be a donor and donee ;

(ii) The subject matter of gift must be a certain existing property ;

(iii) The gift must be voluntarily and without consideration ;

(iv) There must be transfer on the part of the donor ;

(v) There must be acceptance by or on behalf of the donee, and such acceptance must be made during the lifetime of the donor ;

(vi) In the case of immovable property, transfer must be effected by a registered instrument signed by or on behalf of the donor and attested at least by two witnesses.

7. The donor gifted the land measuring 14 Kanals 12 Marias comprised in khasra Nos. 2539/2450, 2538/2450, 1883/1 to 1440, 1884/1 to 1440, 1885/1 to 1440, 2018/1 to 1440, 2129/1 to 1440, 2151/1 to 1440, Khata No. 124/228, situated in the revenue estate of Khanpur to the donee defendant vide gift deed, dated June 23,1973. The gift was accepted by the donee and in token thereof, he appended his signatures on it. It is attested by Lambardar Bakhshish Singh of village Khan Pur and by one Labh Singh resident of the same village. The gift detd was presented for registration before the Sub Registrar on June 3, 1973 It was read over to the donor and the witness by the Sub Registrar and they appended their signatures in token of its correctness before the Sub Registrar. The donee also appended his signatures before the Sub Registrar. After the correctness of the gift deed was affirmed by the donor, donee and the witnesses, the gift deed was attested by the Registering Officer. The registration of the gift deed by the Registering Officer is a prima facie strong evidence that it was executed by a person by whom it purports to be and that Registering Officer after satisfying himself about the identity of the executant from the attesting witnesses registered the document. The essential conditions are fully satisfied in the instant case. Mutation, dated January 30, 1974, Exhibit D-l, was also attested in favour of the donee by the Revenue Officer.

8. The first Appellate Court was in error in invalidating the gift deed on the ground that the plaintiff and his wife were serving the donor ; that the donor had fallen from the stairs and was a person of weak intellect; that one of the attesting witnesses, namely, Labh Singh was not produced and the other attesting witness, who was examined at the trial, could not be relied upon for the reason that he was suspended from the office of Lambardar. The considerations for which the gift deed has been declared to be invalid are not only irrelevant but illegal too. The first Appellate Court did not examine the matter in correct and legal perspective. It was only called upon to determine whether the gift deed was executed by the donor or not. He could not introduce suspicious circumstances which are pressed into service to determine the validity of a Will. The gift and the Will do not stand at par with each other. If the Appellate Judge had examined the validity of the gift in the light of mandate of Sections 122 and 123 of the Transfer of Property Act, he would not have fallen into errors as done in the instant case.

9. The first Appellate Court did not appreciate that the plaintiff had challenged the gift deed on the ground that it was a forged document. In other words, he admitted the execution of the gift deed but labelled it as a forged document. According to him, some body impersonated for the donor before the Sub Registrar. The donor has led prima facie proof of the due execution of the gift. The onus shifts on the plaintiff to prove that it was a forged document. No evidence was led by him to prove that it was a forged document. If his allegation was true, there was no difficulty for him to prove the assertion by getting thumb impressions of the donor on the gift deed compared with some admitted thumb impressions. Failure to do so, leads to an inference that the claim was hallow. As observed earlier, the gift deed was duly registered and the certificate endorsed on it by the Registering Office is a relevant piece of evidence for proving the just execution. It will be useful to refer to the following observations made in Piara v. Fattu, (1929) 30 P. L. R. 138.

'The registration is a solemn act, to be performed in the presence of a competent official appointed to act as Registrar, whose duty it is to attend the parties during the registration and see that the proper persons are present, are competent to act, and are indentified to his satisfaction ; and all things done before him in his official capacity and verified by his signature will be presumed to be done duly and in order.'

10. For the reasons aforesaid, the appeal succeeds. The judgment and decree of the first Appellate Court are set aside and those of the trial Court are restored. No order as to costs.