Doda vs Mast Ram

Rajiv Sharma, J.—1. This regular second appeal is directed against the judgment and decree of the learned District Judge, Hamirpur, H.P. dated 1.11.2004, passed in Civil Appeal No. 59 of 2002.

Key facts, necessary for the adjudication of this regular second appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff) has filed a suit against the appellant-defendant (hereinafter referred to as the defendant) for possession and cancellation of relinquishment deed dated 8.4.1994 Ext. DW-2/A. The plaintiff''s father Sh. Durga died on 29.9.1994. He was owner-in-possession of the suit land as detailed in the plaint. The plaintiff Sh. Mast Ram, Smt. Shankru and Smt. Soma Devi are the legal heirs of late Sh. Durga. He was about 95 years of age. He was neither in disposing state of mind nor he could put thumb impression on any document. The defendant forcibly occupied the suit land on the basis of forged relinquishment deed. It is, in these circumstances, the plaintiff has prayed for decree that the alleged relinquishment deed dated 8.4.1994, in the custody of the defendant in respect of the suit land, was never executed by the deceased Durga and in the alternative the plaintiff sought the relief that the relinquishment deed be adjudged fraudulent and void and the possession of the suit land be delivered to the plaintiff.

The suit was contested by the defendant. According to him, he became owner of the suit land by way of relinquishment deed dated 8.4.1994 executed by late Sh. Durga in favour of defendant. It was executed by late Sh. Durga in the presence of respectable marginal witnesses. It was duly registered and presented before Sub Registrar Bhoranj and the question of being forged and fraudulent does not arise. It is denied that late Sh. Durga was not in a position to speak or put his thumb impression on the relinquishment deed.

The learned Sub Judge (I), Hamirpur, H.P., framed the issues on 16.1.2001 and suit was dismissed on 27.2.2002. Feeling aggrieved, the plaintiff preferred an appeal before the learned District Judge, Hamirpur. The learned District Judge, Hamirpur, allowed the same on 1.11.2004. Hence, this regular second appeal.

This Regular Second Appeal was admitted on the following substantial questions of law on 6.12.2004:

"1. Whether the Lower Appellate Court has taken erroneous view of law and facts by holding the Exhibit DW-2/A, a suspicious document by putting reliance on such evidence which was in variance of the pleadings? Has not the Lower Appellate Court ignored the basic principle of law that the plaintiff is supposed to stand on his own legs to prove the case and not to rely on the weaknesses of the defence, are not the findings of the Lower Appellate Court erroneous and perverse by ignoring such principles of law?

Whether the Lower Appellate Court has committed grave error of jurisdiction in holding the deceased Shri Durga to be incompetent to execute the document on account of alleged impairment of his mental faculty without there being any cogent, proper and legal medical evidence, are not the findings of the Lower Appellate Court illegal, erroneous, arbitrary and perverse?"

Mr. Bhupinder Gupta, learned Sr. Advocate, on the basis of substantial questions of law framed, has vehemently argued that Ext. DW-2/A was a valid document. He then contended that the deceased Durga was competent to execute the document. On the other hand, Mr. K.D. Sood, Sr. Advocate, has supported the judgment and decree of the learned first appellate Court dated 1.11.2004.

I have heard the learned Senior Advocates for the parties and gone through the judgments and records of the case carefully.

Plaintiff has appeared as PW-1. According to him, his father was not able to speak. He could not recognize any person. He was not able to execute the relinquishment deed. He is only son of late Sh. Durga. He denied the suggestion that he was living separately from his father for the last 30/40 years. He denied that he did not maintain his father. He denied that his father executed the relinquishment deed in favour of the defendant and the same was attested by the Tehsildar. He denied that he did not participate in the last rites of late Sh. Durga. He deposed that the defendant was nephew of his father. He admitted that the defendant used to look after his father although he also used to maintain and look after his father. He remained at Chandigarh since the year 1955 to 1980, however, his children used to live in the native place to look after his father.

Sh. Ram Lal, PW-2 deposed that late Sh. Durga lost his senses two years prior to his death. He was unable to talk or understand the matter.

Sh. Amar Nath, PW-3 deposed that late Sh. Durga died in the year 1994. Two years prior to his death, he lost his senses and was unable to execute any document.

Sh. Partap Chand PW-4 has supported the versions of PW-1 to PW-3. He has also testified that late Sh. Durga was neither in his senses nor he was able to go to Bhoranj. He had gone to village Dalalar to collect money from his debtors when he saw late Sh. Durga senseless.

DW-1 Doda alias Inder Ram testified that late Sh. Durga was his Uncle. He died about 5 1/2 years ago. Their land was joint land. He used to maintain and look after late Sh. Durga. Sh. Mast Ram, plaintiff who is son of late Sh. Durga, used to live separately for the last 25/30 years. He never maintained late Sh. Durga. Late Sh. Durga, in lieu of services rendered to him, executed a registered relinquishment deed in respect of land measuring 2 kanals 6 marlas in his favour. The relinquishment deed was duly registered at Bhoranj. It was scribed by Krishan Chand, Deed-writer at Bhoranj on the request of late Sh. Durga in the presence of witnesses Dile Ram, retired Tehsildar and Balbir Singh, Lambardar. After scribing the same, the deed was read over and explained to late Sh. Durga, who after admitting the contents of the same to be correct put his thumb impression on the same. Thereafter the witnesses put their signatures on the same. He identified his signatures at mark "X" at point D-1. After the relinquishment deed was presented before Tehsildar (Sub Registrar) Bhoranj for attestation, late Sh. Durga put his thumb impression on the same in the presence of witnesses. At that time, the health of late Sh. Durga was good. He was able to distinguish between right and wrong. He performed the last rites of late Sh. Durga.

Sh. Onkar Thakur DW-2 deposed that he is practicing Advocate at Hamirpur since 1963. He knew Sh. Krishan Chand, Deed-writer since 1963. Earlier, he was Clerk of Pandit Paras Ram, Advocate and later on of Lala Prem Chand Kaushal. He became Deed-writer in the year 1971. Sh. Krishan Chand firstly remained at Hamirpur and later on he went to Bhoranj and now he has died. He is well conversant with his hand writing. He identified his hand writing on the relinquishment deed Ext. DW-2/A.

Sh. Balbir Singh DW-3, Lamberdar is witness to the relinquishment deed Ext. DW-2/A. According to him, the deed was executed in favour of the defendant Sh. Doda in his presence and in the presence of Dile Ram. It was scribed by Krishan Chand Deed-writer. He identified his signatures on relinquishment deed Ext. DW-2/A at point "A". The deed was also placed before the Tehsildar for registration. He identified his signatures on endorsement Ext. DW-2/B. He also deposed that at the time of execution of the deed, the health of late Sh. Durga was good and he was able to distinguish between right and wrong.

Sh. Dile Ram DW-4 deposed that relinquishment deed Ext. DW-2/A was scribed and executed in his presence by late Sh. Durga. It was scribed by Sh. Krishan Chand at Bhoranj and the same was also registered in his presence by Sub Registrar, Bhoranj. He identified his signatures on the relinquishment deed Ext. DW-2/A and also on endorsement Ext. DW-3/B. Sh. Mast Ram did not participate in the last rites of late Sh. Durga and at the time of death, late Sh. Durga was being maintained by Inder alias Doda.

The relinquishment deed Ext. DW-2/A is dated 8.4.1994. It has come in the statements of PW-1 Mast Ram, PW-2 Ram Lal, PW-3 Amar Nath and PW-4 Partap Chand that the health of late Sh. Durga was not good. He had lost his senses. He was not in a position even to put thumb impression on documents. According to the witnesses produced by the defendant, late Sh. Durga was in good health and the deed was scribed by Sh. Krishan Chand Deed-writer. The contents of the same were read over and explained to late Sh. Durga. It was placed before the Sub Registrar, Bhoranj for registration. According to DW-1 Sh. Doda, late Sh. Durga was taken in a jeep to Bhoranj and taken back, which is contrary to the endorsement made in the relinquishment deed.

Mr. Bhupinder Gupta, learned Sr. Advocate, has vehemently argued that the plea of fraud and forgery has not been pleaded in the plaint. The Court has gone through the plaint. It is specifically averred in para 3 of the plaint that the relinquishment deed was fraudulent and forged document.

The case of the defendant was that relinquishment deed was registered before the Sub Registrar, Bhoranj. Thus, according to the defendant, late Sh. Durga had gone to Bhoranj for the purpose of writing and registration of the relinquishment deed. However, it is evident from the contents of Ext. DW-2/A that the Sub Registrar, Bhoranj, himself had visited the house of the executants late Sh. Durga in village Dalalar for the purpose of registration. It is also stated in endorsement Ext. DW-3/B that the deed was presented at 3-4:00 PM by late Sh. Durga in his house at village Dalalar. This endorsement was made by Sub Registrar, Bhoranj during discharge of his official functions as a public servant being Sub Registrar. The presumption of truth is attached to all public functions of the public servants which are presumed to be done in regular manner unless contrary is established. Thus, it belies the case of the defendant that relinquishment deed was scribed and registered in the office of Sub Registrar, Bhoranj. Late Sh. Durga was 95 years of age at the time of execution of the alleged relinquishment deed dated 8.4.1994. He was sick. He was not in a position to sign or put thumb impression on the document. Thus, Ext. DW-2/A relinquishment deed, is the outcome of fraud. It is surrounded by suspicious circumstances which could not be removed by the defendant. Late Sh. Durga was incompetent to execute this document, being sick and old age. The substantial questions of law are answered accordingly.

Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any.