This second appeal challenged the First Appellate Court's judgment setting aside a trial court decree declaring a registered Gift deed void for fraud. The High Court dismissed the appeal, holding the deed legally presumed valid and the donor estopped due to its own conduct.
The Appeal stands dismissed. No order as to cost.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF ORISSA : CUTTACK RSA NO.117 OF 2014
From the judgment and decree dated 21.01.2014 and 03.02.2014 respectively passed by the learned Additional District Judge, Dhenkanal in RFA No.37 of 2011 (01 of 2014).
Hrudanand Sahoo ::: Appellant
-versus- Sri Sri Ananta Gopal Jew Bije & Two Others. ::: Respondents
Appeared in this case by Video Conferencing Mode:
For Appellant M/s. Chittaranjan Pattnaik, S.Ch. Padhi & Bidisha Sahoo, Advocates. For Respondents - None CORAM: MR. JUSTICE D.DASH DATE OF HEARING :: 29.07.2021 & JUDGMENT ::12.8.2021
D.Dash, J . The Appellant, by filing this Appeal, under section 100 of the
Code of Civil Procedure (for short, ‘the Code’) has assailed the judgment and decree passed by the learned Additional District Judge, Dhenkanal in RFA No.34/11 (01 of 2014).
The Appellant as the Plaintiff had filed the Civil Suit No.57 of 2008 in the Court of learned Civil Judge (Senior Division), Kamakhyanagar, arraigning the Respondents as the Defendants. The suit is for declaration that the Registered Gift Deed dated 22.02.2001 executed in favour of the Respondents No.1 (Defendant No.1) is null
and void; with further relief of mandatory injunction for demolition of
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a thatched house being so constructed by Respondent No.1 (Defendant No.1) and recovery of possession. The suit having decreed granting all the reliefs, the Respondent No.2 filed the Appeal under Section-96 of the Code. The First Appellate Court allowed the Appeal in setting aside the judgment and decree passed by the Trial Court. The Second Appeal has come to be filed by the Plaintiff who having been successful, next has also been unsuccessful before the First Appellate Court.
Sahoo. After death of Satrughana, his four sons and three daughters succeeded to his property. Although they were separate in mess, yet were joint in property. Plaintiff claims to be the Karta of the said joint family property. The suit property is situated on the side of the road and that being developed from time to time stand converted to homestead.
It is stated that Santosh Kumar Dash, so called Marfatdar of Defendant No.1, Deity fraudulently managed to obtain the Gift deed in respect of the suit property from the Plaintiff. It is further stated
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that said Santosh Kumar Dash had fraudulently managed and succeeded to have the land in question so mutated vide Mutation Case No.1431 of 2001 in consonance with the said registered Gift deed. The Plaintiff claims that he has no power or the authority to execute a deed of gift without consent of other co-sharers so as to prejudice them in any manner. The Defendant No.1 said to have put up a thatched house over the suit property. With all such pleadings, the Plaintiff filed the suit claiming the reliefs as already stated.
of the suit property is claimed by the Deity represented by the Managing Committee.
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Upon analysis of the evidence and their evaluation, the answers
having been given in favour of the Plaintiff. It has been held that the Plaintiff is entitled to a declaration that the registered Gift deed dated 20.02.2001 executed by him in favour of the Defendant No.1 and accordingly, the consequential ROR has been held null and void. It has been held that the Gift deed has been obtained from the Plaintiff by practicing fraud. The fate of the suit hinges upon the decision on this issue. Accordingly, the suit stood decreed.
The lower Appellate Court has reversed the finding of the Trial Court that the registered Gift deed is void which has practically led to non-suit the Plaintiff.
Although no such substantial question of law which according to the Appellant (Plaintiff) arises for being answered in this Appeal
has been stated mentioned in the memorandum of appeal, during hearing learned counsel for the Appellant submitted that the lower Appellate Court had failed to appreciate the evidence on record in their proper perspective; in ultimately rendering the finding that no ground has been made out for declaring the said registered deed of gift as void.
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It is further submitted that when the Trial Court on proper analysis of evidence on record and upon their evaluation has found the gift deed to have been obtained from the Plaintiff by fraud, the lower Appellate Court has in a casual manner gone to differ with the same and that to without assigning any reason as tenable in law. According to him, the finding of the lower Appellate Court in ultimately disagreeing with the Trial Court in setting aside the registered deed of gift as void is suffers from the vice of perversity and thus cannot sustain. With all these, he urges for admission of this Appeal so as to answer above substantial questions of law which according to him arise in the case.
Coming to the main question as to authority of the donor in executing the deed of gift touching upon the prayer of the Plaintiff for
its declaration as void, it would be proper to have glance at the averments taken in that regard in the plaint. The Plaintiff at paragraph-6 has stated that Santosh Kumar Dash, the then Marfatdar of Defendant No.1-Deity had fraudulently obtained the deed of gift. It
has further been said that the signature in the Gift deed is forged one. These pleadings appear to be wholly deficient so as to meet the
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requirement of the provision of Order-6, Rule-4 of the Code. The Plaintiff has not set forth the particulars of fraud as so required. When it is stated that Gift deed was fraudulently obtained, it has not been so pleaded that it was not so executed by him nor explained further. However, the Plaintiff in his evidence has said that he has never executed the gift of deed. The given pleadings and evidence are not enough to conclude that the deed of gift which is a registered one is a forged one.
Next coming to question of its execution by the Plaintiff without consent of other co-sharers, it seen that here the Plaintiff himself executed the registered deed of gift which has been registered and that thus carries the legal presumption as to its due execution with his full knowledge which has not rebutted through clear, cogent and acceptable evidence. As against the assertion that it is invalid since other co-sharers had not consented to it, it is seen that co-share has come forward to question this Gift deed and they have also not been made parties to the suit wherein the Plaintiff who is the donor under the Registered Gift Deed is the suitor. For the first time, he states that
being the Karta of the family, he had no authority to execute the Gift deed without the consent of others which contradicts his own conduct
in executing the gift deed and the assertions made therein and he is also estopped to challenge the gift on that very ground of lack of
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authority on his part. The gift has been accepted by the donee as would be evident from the fact that the land is under their possession with thatched house standing over there, which the Plaintiff is not stating to have been when so put up. Although, it is said that it has been so done authorizedly, the evidence on that score is not sufficient
to conclude that the donor despite of the execution of the deed of gift had never parted with the possession over the property so gifted and
had remained in possession.
For the aforesaid discussion and reasons, the submission of the
learned counsel for the Appellant are not accepted.
…………………..
(D. Dash),
Judge.
Narayan
2 issues framed by the court
Whether the trial court's finding that the registered Gift deed was obtained by fraud was perverse given the pleadings and evidence.
Whether the donor is estopped from challenging the execution of the Gift deed as invalid due to lack of co-sharers' consent.
3 provisions across 1 enactments
Hrudanand Sahoo
Sri Sri Ananta Gopal Jew Bije
Two Others
D. Dash
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
