Dismissed

Nagaram Mohan Reddy v. Sathu Shashidhar Reddy

Telangana HC12 Sept 2022SA/180/2022

Case brief

AI extract

What is this about?

In this second appeal, the High Court of Telangana dismissed the amendment challenging the confirmation of a decree in favor of the plaintiff (donee) regarding title to gifted property. The court held that registration and lack of specific denial by the executant dispensed with the need to examine attestors under Section 68 of the Evidence Act. It found the gift valid as coparcenary interest had e

What did the court decide?

Second Appeal dismissed; no order as to costs; pending miscellaneous applications to stand closed.

Nagaram Mohan Reddy Vs Sathu Shashidhar… — Contract and Commercial Disputes | Telangana HC (2022)

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[³²¹⁶ ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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MONDAY, THE TWELFTH DAY OF SEPTEMBER IWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE SRI JUSTICE M.LAXMAN

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SECOND APPEAL NO: 180 OF 2022

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Appeal under section 100 C.P.C against the Judgment and Decree Dated. 311112022 made in A.S. NO.2B of 2018 (old A.S.No.4/2012) on the file of the Court of lX Additional District and Sessions Judge at Sircilla Preferred against Judgment and Decree in O.S.No.12 of 2009 dated.2911112011 on the file of the Court of the Senior Civil Judge at Sircilla.

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Between:

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Nagaram Mohan Reddy, Hindu, s/o Bapu Reddy, aged about 67 years, occ. Agriculture, r/o Village Rallapeta, H/o Obulapur village, Tangallapalli Mandal, District Sircilla.

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Nagaram Ranga Reddy, (DIED) his L.Rs Appellant No.3 and 4 herein.

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Nagaram Sanjeeva Reddy, Hindu, s/o Late Ranga Reddy, aged about 60 years, occ. Agriculture, rlo Village Rallapet, Hlo Obulapur village, Tangallapalli Mandal, District Sircilla,

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Nagaram Varawa, Hindu, w/o late Ranga Reddy, aged about 87 years, occ. House hold, r/o Village Rallapet, H/o Obulapur village, Tangallapalli Mandal, District Sircilla.

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...APPELLANTS/DEFENDANTS

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AND

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Sathu Shashidhar Reddy, s/o Mahipal Reddy, aged about 29 years, occ. not known, r/o H.No.6-3-86, Power House colony, Post Godavarikhani, District Peddapalli, Telangana-50521 1.

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...RESPONDENT NO.1/PLAINTIFF

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Tahsildar, Sircilla Mandal, District Sircilla.

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...RESPONDENT/D.3

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Kasturi lndira, w/o Kista Reddy, Aged about 62^years, r/o Bandalingampally village, Mandal Yellareddipeta, District Rajanna Sircilla

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...RESPONDENTS

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lA NO: 1 OF 2022

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to^pass order/ orders to stay rf all further proceedings including the Execution of the Judgment and Decree n A.S.No.28l2018 (old A.S.No.412012) daled.311112022 on the file of the Honourable lX Additional District and Sessions Judge at Sircilla confirming the Judgment and Decree in O.S.No.1212009 dated.29l1112011 on the file of the Honourable fienior Civil Judge, at Sircilla, pending disposal of main S.A.

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Counsel for the Appellants: SRl. DAMODAR RAO Counsel for the Resp,>ndent No.1 : SRl. BANKATLAL MANDHANI Counsel forthe Resp,rndent Nos.2 & 3: NONE APPEARED

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The Court delivered t re following: JUDGMENT

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THE HON'BLE SRI JUSTTCE M. LAXMAN

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SECOND APPEAL No.l80 OF 2022

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JUDGMENT:

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l. The present appeal has been directed against^judgment and decree dated 31.01.2022 passed in A.S.No.28 of 2018 by the IX Additional District Judge, Sircilla, wherein and whereby the^judgment and decree dt.29.12.2011 passed in O.S.No.12 of 2009 by the Senior Civit Judge, Sircilla, was confirmed. The said suit was filed by the respondent No.l herein for declaration of title and for recovery ofpossession and the same rvas decreed by the trial Court and in the appeal, it was confirmed. Llence, the present second appeal.

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The present appeal is at the instance of the defendants. The respondent No.l herein is the plaintiff. Respondent No.2 is defendant No.3. For brevity, the ranks of the parties as they were referred in the suit, is maintained.

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The sum and substance of the case of the plaintiff is that, the grandfather of plaintilf late Sathu Laxmaiah was the original owner anci possessor of suit property and out of love and affection, he executed a Gift (Settlement) Deed in favour of piaintiff in respect of suit^property vide Gift Deed document No.2010 of 2004 dt. 27.08.2004, and

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2 M SA No. 180 of 2022'

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consequently rlrutation was effected and the plaintiff has been in continuous poss,lssion of the suit property. The defendants without any right and title, dispossessed the plaintiff. Hence, the present suit.

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The case rf the defendants is that, their ancestor Narayana Reddy was the ownel' ,rnd possessor in Sy.No.145/D admeasuring Ac.4-06 gts., and one Agar Reddy was his brother. The defendants are the descendants ol .\gam Reddy and they have absolute right and title over the suit propert) which included in the larger extent of Ac.4-06 gts., They disputed the exccution of Gift Deed at one stage and they also clairred that the mother cf the plaintiff hatched a plan with the grandfather of the plaintiff (i.e. er:ecutant of Gift Deed) and brought the registered Gift Deed Document without any right or title over the suit properly. Therefore, the plaintiff is not entitled for any declaration and recovery of possesslon.

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Basing on the above pleadings, the primary Court framed the following issues:

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I . Wheth,:r the Gift Deed dt. 27 .08.2004 in favour of the plaintiff is true, valid and binding on the defendants?

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Whether the plaintiff is the owner of the plaint schedule property?

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Wheth:r the plaintiff is entitled for a declaration that he is owner of the plaint schedule propgW?

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,r'

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ML,J SA No. 180 of 2022

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Whether the plaintiff is entitled for recovery of plaint schedule property from defendants No. I and 2?

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Whether the plaintiff is entitled for mutation of his name in the revenue records in respect ofthe plaint schedule property by deleting the names of defendants No.1 and 2?

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To what relief?

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The plaintiff in order to prove his case examined PW.l and relied upon Ex.A1 to A,9. On behalf of defendants, DWs I and 2 were examined and got marked Ex.B1 to B13.

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The trial Court held that the plaintiffproved the title to the suit property and consequently, the suit was decreed and the same was confirmed in the appeal. Hence, the present second appeal 8. Leamed Counsel for the appellants/defendants contended that both the Courts beiow have not considered the legal effect of pleadings that the suit property admittedly is an ancestral property. Therefore, the Gift Deed executed by Laxmaiah is not a valid document since Laxmaiah was one of the coparceners among many and he is not entitled to deal with the property by way of Gift. It is also his contention that the certified copy of the document was marked without any foundation for leading secondary evidence, and therefore, it^gives substantial question of larv. It is also his contention that the Gift^{was not properly} proved by examining the attestors. Thus, the plairrtiff suit^musMall to ground. Therefore, the

SA No. 180 of 2022

findings of both the Courts below suffer from perversity. In support of his contention, he relied upon the following^judgments:

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In J. Yashoda Vs. K. Shobha Ranirwherein in the Hon'ble .A.pex Court held that "for adducing secondary evidence :t is necessary for the party to prove existence and execution of the original document and conditions laid down in Section 65 of Evidence Act must be fuifilled before secondary evidence can be admitted.

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In Drverampudi Nagaratnamba Vs. Kunuku Ramayya and another2 wherein at para No. 6 it is held that "Venkataoharyulu was free to make a gift of his own property to his concubine. The gifu under Exts.A-1 and A- 2 were not hit by Section 6(h) of the Transfer of Property Act. But the properties gifted under Exs. A-1 and A-2 were coparcenaly properties. Under the Madras School of Mitakshara law by which Venkatacharyr:lu was governed, he had no power to make a gift of even his undivided interest in the coparcenary properties to his concubine. The gifts werc therefore invalid."

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In K. Laxmanan Vs. Thekkayil Padmini and others3

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In Krishnan Assari Velayudhan Assari Vs. Parameswaran Pillai Madhavan Pillaia

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In State of Rajasthan Vs. Khermrajs

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I (2007) 5 scc 730 'zetR^{tgoasc zs:} 3 eln zoog sc 95 t o Am. tgtq KEneLe rol

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ML,J SA No. 180 of 2022

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The contention of leamed Counsel for respondent/plaintiff is that there is no specific denial of execution of the Gift Deed document and denial was vague and inconsistent. At one stage, specifically denied the execution of Gift Deed and at another stage, the defendants clairned that the document was created by the plaintiff in collusion with the executant i.e. grandfather of the plaintiff. The defendants also claimed that the Gift Deed is a sham document, and when the document is sham, it implies the execution of the document. According to him, there is no specific denial of execution of the document and the same was noticed by the trial Court anci First Appellate Court and held that document is proved, and the said findings does not require any interference by this Court.

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The other contention of leamed Counsel for respondent/plaintiff is that the certified copy of the document was allowed to mark without any objection. When there is no objection and once the document is received in evidence, it cannot be held that the document was not properly^proved. If such plea was taken earlier, the^party had an option to^get the^original document produced in evidence. As^such, the^{said contention of} defendants is also not^{permissible.Lastly,contended thatSection 68 and} its proviso of the Indian Evidence Act clearly^{dispense with examination}

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SA No. 180 of 2O2

of attestors if tht: registered document compulsory attestable document is produced, except Will Deed. According to him, there is no denial of execution by tht' executant, as such, there is no requirement to examine the attestors. In support of his contentions, he relied upon the following judgrnents:

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01 In D:rvamathi Bai Vs. K.M. Shaffi 02 In R.V.E. Venkatachala Gounder Vs. Arulmigu Vis h'*'esarasu,a m i & V.P. TempleT

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03 In K. Chelliah Servai Vs. P. Muthusami Servai8 04 In Biswanath Agarwalla Vs. Sabitri Berae 05 In Su rendra Kumar Vs, Nathulalro 06 In Dr. K.I.Askari Vs. Nawab Mir Barkat Ali Khan @ Waltshan Prinice Mukkaram Jah Bahadur, HEH the Nizarn VlIIrt

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07 In Vcdachala Chcttiar Vs. Ameena Bi Ammall2

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I 1. A reading of the written statement of the defendants, it shows that

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at one stage ther denied the execution of the registered Gift Deed. At another stage, it is pleaded that plaintifls mother in order to deprive the rights ofthe defcndants over the plaint schedule property, hatched a plan with the grandfzther of the plaintiff (executant) to execute a registered Gift (settlement) Deed in favour of plaintiff though grandfather was not having any right over the suit property. At other stage, it is pleaded that

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ML,J SA No.180 of 2022

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the document is a sham document. The cross-examination of PW. 1 also shows that there is no specific denial of plaintifls claim that the document was executed by grandfather ofthe plaintiff. A reading ofthe pleadings as well as the evidence clearly show that there is no specific denial. The denial is wavering. In the light ofno specific denial, there is no requirement of examination of attestors.

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Learned Counsel for plaintiff has relied upon the decision of the Apex Court in the case of Surendra Kumar Vs. Nathulal (referred

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supra) wherein the Hon'ble Apex Court held at para No.13 as follows:

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Section 123 ofthe Transfer ofProperty Act, 1882 provides: "123: Transf'er how effected.- For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

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In the present case there exists a registered deed of gift signed by the donor and attested by two witnesses. Therefore, the requirement of the law as incorporated in the Section is satisfied. Section 68 of the Indian Evidence Act, 1872 makes a provision regarding proof of execution ofa document required by law to be attested. Therein it is laid down that :

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Il a document is required by law to be attested, it shall not be used as evidence unt;l one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process ofthe Court and capable ofgiving evidence.

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The proviso to the section, which is relevant for the^{present pulpose,} reads:

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Provided that it shall not be necessary to call an attesting witness in proof of the execution of any^docurnent, not being a will, which^has been registered in accordance with^{the provisions} of the lndian Registration Act, 1908 (16 of^{1908), unless its execution} by the^person by whom it purports to have been executed is specifie{ly denied,

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SA No.18O of 202

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(Emphasis supplied) On a plain reading of the proviso, it is manifest that a registerel deed of gift can be received in evidence without examining one of dre attestors if the person who has executed the deed of gift has not specifijally denied its execution."

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A readinl: of above^judgment would show that examination of

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attestors is not required when the registered Gift Deed is not denied by the executant. l'he executant was examined as one of the witnesses and on examination^r:he executant has confirmed the execution. In the said circumstances, it was hetd that the examination of attestors is not required

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The learned Counsel for the defendants relied upon the Krishnan Assari Velayudhan Assari Vs. Parameswaran Pillai Madhavan Pillai (referred supra) wherein the Hon'ble Apex Court held at para No.35 as follows

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"Besides, corsidering the nature ofthe document which was a Deed of Gift and even as;uming that no pleading is filed specifically denying the execution of the document by the executant and, therefore, there was no mandatory re,luirement and obligation to get an attesting witness examined but still the frrct remains that the plaintiff never admitted the execution of the gift deed and, therefore, the same was required to be proved like any other document."

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A reading of above^judgment would shows that a third party to the document :an also question the execution of the document.

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When such execution is challenged and when the executant is not

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\ t

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9 ML,J SA No.180 of 2022

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admitting the execution of the document, the examination of two

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attestors is compulsory.

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In the context ofproviso to Section 68 ofthe Indian Evidence Act, there must be admission of executant which dispense with the examination of witnesses. Without admission from the executant, the requirement of examining two attestors cannot be dispensed with even though the document is registered. Therefore, the contention of the leamed Counsel for appellants/defendants is not merited.

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The other contention raised by the learned Counsel for appellants/defendants is that the suit property is an ancestral property of executant and he had no right to execute the document. There is no doubt that a coparcener's interest in the undivided coparcenary property cannot be gifted, However, once the coparcenary interest gets extinguished by various modes, the ancestral property can be gifted away. In the present case, there is no foundation in the pleadings that the coparcenary was intact when the Gift Deed document was executed. The evidence on record shows that there was partition in the year 2004 artd thereby the coparcenary interest gets extinguished. PW.l admitted that

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executant was not given any share in the property, It is contrary to the

N,I SA No.180 of 202 2

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evidence on record which clearly shows that executant was holding right and interest over the propefty.

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The leamed Counsel for appellants/defendants submitted that in the first appeal he pahani was not marked, however, it was read in evidence. He lequested to remand the matter for rnarking of the document. I do r ot find any merits in his contention since technicality of non-rnarking of the docurnent does not require remand of the matter. Once riglrtly or rvrongly the document is received in evidence by way of application which is unchallenged by the plaintiff and said document was also read in evidence and it was referred in assessing the evidence. Therefore, r€ftlarrd is unwarranted.

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Both the tlourts below have rightly appreciated the evidence on recold and cam( to the conclusion that the plaintiff has established the title over the sui property. I do not find any substantial questions of law involved in this rppeal. Therefore, the appeal is liable to be dismissed.

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