A.V. Rangacharya and Another vs Pillanjinappa and Another

T.N. Vallinayagam, J.—The two appeals arise out of OS 70/85 a suit filed by Rangacharya son of Venkatanarasimhacharya in respect of suit properly owned by him who in turn purchased the same from Venkatappa under a sale-deed dated 17.11.1969.

OS 71/85. out of which RSA 687/91 has arisen is filed by one Krishnamma. who claims another portion of the property under a gift from the said Venkatappa. The aforesaid Venkatappa purchased the same on 21.11.1966 from one Venkatashamappa. who in turn got the properly from Dodda Bairappa under a registered sale deed dated 18.8.1958. The said Dodda Byrappa become the owner by purchase of the said properly on 24.3.1954. This Dodda Baliappa is the lather of defendants I and 2.

The suit for declaration and possession was dismissed by the Courts below. Therefore, the plaintiff in both the cases have preferred the first and second appeals.

There are two items in the schedule. The first lime is claimed by the defendant as having fallen to the share of Chikka Yadalappa and Pillanna. who were the brothers of their grand father Byranna, white item 2 fell to the share of the Seshoppa and Bayanna Chikka Yaddalappa. Seshappa. and Bayanna and Pillanna were four brothers. Out of whom Seshappa had two sous. Billa Bairappa and Munishamappa. Byanna had three sons. Dodda By a rap pa and two others. Dodda Byarappa''s sons are lite defendants. The defendants claimed that they exchanged the properties and obtained the share of Seshappa in item 2 of the properties. The sale of the property by Dodda Bairappa to Venkatashamappa was denied and was also attacked on the ground of want of legal necessity. Claiming that they were in possession all along, the defendants set up title up adverse possession and prayed for dismissal of the suit.

The Trial Court disbelieved the sale-deed of 17.9.1969 and accepted the plea of adverse possession set up by the defendants. Further holding that the plaintiff was not in possession within 12 years, from the date of the suit, the suit was dismissed. Both the plaintiffs preferred the first appeal and the Appellate Court finding complete consonance with the finding rendered by the Court below, dismissed the appeal. Consequently, two second appeals have been filed.

Prima facie it should be held that the finding of the Courts below that the registered document like the sale-deed dated 17.9.1969 and the gift-deed dated 20.1.1971 has to be proved is prima facie an error apparent on the face of the records. The validity of the sale-deed of 1969 and the gift-deed of 1971 cannot be questioned after a period of 16 years and 14 years respectively by the sons of the original vendor/donor''s successors in interest.

A Division Bench of this Court held that a registered deed to which father is a party cannot be questioned even by a minor son beyond the period of limitation. Even otherwise, proof of a sale-deed is not necessary and it is for the persons who attached the sale-deed to prove otherwise. The presumption u/s 17 of the "Registration Act. has to follow in respect of the liability and the proof of a regislered sale-deed. The effect of a regislered document under Sections 49 and 50 of the Registration Act cannot be taken by merely asserting that the document is bad. Even under Sections 67and 68of the Evidence Act. if it is found that the document has been presented by the person who executed the document and if he admits execution those documents cannot be attached as invalid in the eye of law. I find in a number of cases the registered documents are allowed to be attached and even Courts goes to the extent of saying that such documents are not valid in the eye of law. which view in my opinion in prima facie illegal and perverse. Till such registered instrument is set aside, by a course known to law, the document must be taken as a valid legal document and the purport for which it is executed must be upheld in a Court of law. Even the Supreme Court has made only one distinction wherein if the signature of the document is disputed or the person presenting the document has not admitted execution thereof, then proof of such document may be necessary. But in all other cases, till the document is set aside, by a decree of a Court, the effect of such document must be upheld by every Court that deal with the same. Therefore, the view of the Courts below regarding the validity of the sale-deed as well as the gift-deed which were 16 years and 14 years on the date of filing of the suit has to be set aside on this ground alone.

It is also seen from the written statement that there is no specific denial of sale or gift. If according to them the sale by the father is not binding then they should file a suit to set aside the sale as the sale is only voidable. If they do not file a suit to set aside such a sale or gift, then they cannot question the tame. This view has been reiterated by the Supreme Court in the case of Raj Kumar Raghubanchmani Prasad Narain Singh Vs. Ambica Prasad Singh (Dead) by Lawyers and Others, . The following passage is relied upon:

"In any event an alienation by the Manager of the joint Hindu family even without legal necessity is voidable and not void. On the findings of the Trial Court and confirmed by the High Court respondents 1 and 2 were in possession of the land, since the year 1936. The appellate forcibly deprived respondents 1 and 2 of the possession of the land-In the circumstances respondents 1 and 2 were entitled to be restored to possession of the land unless the appellant in an action for partition of the joint family established his claim to the land in dispute. No such attempt was made by the appellant."

In this case the defendants have not filed any suit to avoid the sale-deed/gift-deed. Therefore. they are bound by the same.

In the absence of the specific denial, it is not possible to entertain such appeal. The dictum of Kumbara Narasimhappa v. Lakkanua. AIR 1959 Mys I48. is to the following effect:

"All that the proviso to Section 68 requires in respect of the denial is that it should be a specific denial of the execution of the document. There is nothing to indicate that the denial should be one made by the executant. But the denial should be to the extent that the person by whom the document purports to have been executed has not executed it. the words by the person by whom it purports to have been executed go with the preceding word ''execution'' and not with the words ''specifically denied. What has to be specifically denied is such an execution. It thus follows that the denial need not be necessarily by the executant and that it may be by an one of the defendants interested in the denial of the execution of the document. The words specifically denied'' in Section 68 evidently mean specifically denied by the party against whom the document is sought to be used and not by the executant alone. The denial therefore, has to come from the party who is entitled to dispute or is interested in disputing its execution."

This view is reiterated in a decision of the Division Bench of this Court in The Bank of Citizens Belgaum v. Balwanth Venkatesh Poddar, 1961 My LJ 397.The following passage is relied upon:

"Where the mortgage document is a registered one and it is not specifically denied by the executant thereof, the proviso to Section 68 of the Evidence Act comes to the help of the plaintiff-mortgagee and it would not be necessary to call even an attesting witness in proof of the execution of the document."

The defendant bank, however, does not admit due execution and puts the plaintiff bank to the proof of the execution thereof. The significant fact to be noticed is that the executants have not denied the due execution of the document. If so. the proviso to Section 68 of the Evidence Act comes to the rescue of the plaintiff bank. The section with the proviso reads as follows:

if a document is required by law to be attested, it shall not be used as evidence until 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 of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act. 1908 (XVI of 1908). unless its execution by the person by whom it purports to have been executed is specifically denied.''

This document is a registered one and when it has not been specifically denied by the executants thereof, the proviso states that it shall not be necessary to call even an attesting witness in proof of the execution of the document, if so. the plaintiff could have rest content by not examining any attesting witness but still the proviso to Section 68 would have helped him to the greatest extent possible."

Therefore, the plea of proof of execution is untenable in the eye of law,

The defendants have also set up a plea of adverse possession, which plea is retailed before me. A person who claims the property as his in bona fide belief, cannot set up a plea of adverse possession because the necessary animus is absent. The ordinary requirement of adverse possession is that it should be nec vi nec clam nee precario. This view is reiterated in the case Danappa Revappa Kolli Vs. Gurupadappa Mallappa Pattanashetti, The following passage is relied upon:

A part from actual and continuous possession which arc among other, ingredients of adverse possession there should be necessary animus on the part of the person who intends to perfect his title by adverse possession. A person who under the bona fide belief thinks (hat the property belongs to him and as such he has been in possession. such possession cannot at all be adverse possession because it lacks necessary animus for perfecting title by adverse possession."

In Venkatachalaiah and another Vs. Nanjundaiah (deceased by L.Rs.) and others, the two inseparable ingredients, namely. (1) Corpus Possession is (Physical possession) and (2) Animus Possidendi (intention to exclude the adversary from possession) are highlighted. It is also made clear that the possession of a person bona fide believing that the property belongs too him cannot be construed to be adverse. The plaintiff must have had somebody in his mind as owner and enjoy the property to the knowledge of that person against his interest. Mere possession over a statutory period is not sufficient to succeed in a plea of adverse possession unless it is accompanied by adverse animus. Therefore, the plea of adverse possession set up by the defendant must also fall to the ground.

The defendants claimed that they were in possession from 1972 on wards and earlier suit in OS 213/72 which was a suit for injunction having been withdrawn the plaintiffs were not in possession 12 years from the date of plaint and consequently the suit must fail. They relied upon the dictum in Smt. Raj Rani and Another Vs. Kailash Chand and Another, to the following proposition:

"In the case before us. even if a symbolic delivery of possession to a co-sharer could be said to have interrupted any adverse possession that interruiption took place beyond twelve years. Hence, it was the duly of the plaintiff to have shown by cogent evidence how by receipt of rent or an admission by the defendants or otherwise, he or his predecessor-in-inerest could be deemed to be in actual or constructive possession as an owner or as a co-sharer with the defendants over the house in dispute."

But this plea is not open to the defendants as in 1972 itself there was a claim by the plaintiff that he was in possession and his possession was sought to be disturbed. The specific averment was that they were dispossessed subsequent to the suit. The earlier suit was dismissed on 4.12.1984 and the Court below has not given any definite finding as to how was in possession between 1972 to 1984. The suit properties arc lands, and possession normally goes by title. Admittedly, the title from Doddii Bairappa in 1954 was passed on to Venkatashamappa in 1958 and from Venkatashamappa to Venkatappa 1966. and the sale-deed came in 1969 and the gift-deed in 1971. It is not possible to hold that even after the sale by Dodda Bairappa. he continued to be in possession. Therefore. this plea also has to be rejected.

In the result, setting aside the judgment and decrees or the Courts below, and decreeing both the suits as prayed with costs, the second appeals arc allowed.