Shiv Das and Others vs Devki and Others

This judgment will dispose of two regular second appeals No. 295 of 1968 by Shiv Das and others and No. 765 of 1968 by Smt. Devki, which are directed against the judgment of the Additional District Judge, Gurdaspur dated 3rd of February, 1968, whereby the learned Judge dismissed the appeals, upholding the findings of the trial Court on the issues mooted before him.

The facts giving rise to the litigation at the instance of Smt. Devki may be set out briefly:--

Mela Ram was the last male--holder of the property in dispute consisting of a house, two shops and two pieces of agricultural land referred to in the heading of the plaint as ''A'', ''B'', ''C'', ''D'' and ''E'' respectively. On his death in the year 1913, the property devolved upon his mother Smt. Radhan, as a limited estate. She made a gift of the property ''A'', ''B'', ''C'' and ''D'' in favour of Shiv Dass, her pre-deceased daughter''s son through a registered gift deed dated 28th of March, 1922. Smt. Radhan died on 21st of Dec. 1960. In between Shiv Dass made several alienations of the properties. The family is admittedly governed by Hindu Law in the matter of alienation and succession. Nand Lal and other reversioners of Mela Ram filed a declaratory suit in the year 1925 against Shiv Dass and thereby assailed the validity of the aforesaid gift deed on the ground that Smt. Radhan, being a limited owner, was not competent to make a gift of the properties. The suit was decreed. On appeal by Shiv Dass, the decree was vacated in view of the enforcement of Act, No. II of 1929 according to which, Shiv Dass came to be recognised as a preferential heir as against Nand Lal etc.

The suit by Smt. Devki, who is daughter of Smt. Radhan, was instituted by her on 12th of March, 1965. It was pleaded by her that as a holder of limited estate Smt. Radhan had no right to make a gift of the properties inherited by her from Mela Ram, gift deed dated 28th March, 1922 in favour of Shiv Dass was consequently invalid and inoperative; gift deed could not operate beyond her life, she was in law a preferential heir to the properties as against Shiv Dass. Apart from Shiv Dass, alienees from him were impleaded as defendants Nos. 2 to 47. Decree for possession of the entire property was claimed.

The defendants repudiated the claim of Smt. Devki pleading that she had no locus standi to question the validity of the gift deed, the suit was barred by limitation and by principle of res judicata in view of the judgment delivered in the suit instituted by the reversioners. On behalf of the alienees from Shiv Dass it was pleaded that they were bona fide purchasers for consideration without notice of the plaintiff''s title and consequently protected by Section 41 of the T. P. Act.

The trial Court framed the following issues:--

(1) Whether Smt. Radhan deceased made a valid gift in favour of defendant No. 1?

(2) Whether the plaintiff has locus standi to challenge to gift or sue for possession?

(3) Whether the suit is within time?

(4) Whether Mst. Radhan deceased made a valid will in favour of defendant No. 1?

(5) Whether defendants 2 to 47 are bona fide transferees for value without notice of the plaintiff''s title and are protected by S. 41 of the T. P. Act?

(6) Whether the suit is barred by res judicata as alleged in para 3 of the written statement?

(7) Relief.

The trial Court found that Smt. Radhan, being a limited owner of the property was not competent under the Hindu Law to make a gift and hence the gift was ineffective, the suit was neither barred by limitation nor by the principles of res judicata, Smt. Devki was in law a preferential heir to Shiv Dass, being the sister of Mela Ram, the last male holder and as such had the locus standi to sue, protection of S. 41 of the T. P. Act could not be claimed by the alienees and lastly the gift deed exhibited as D-2 contained a testamentary disposition with the result that Shiv Dass was entitled to inherit the property not specifically gifted, i.e., the agricultural land situated in village Dowal measuring 27 kanals and 9 marlas referred to as ''E'' in the heading of the plaint. As a result of these findings the court rejected her claim to property ''E'' and granted to her a decree for the rest of the properties.

Both the parties appealed. The appellate Court, Additional District Judge, Gurdaspur, by an exhaustive judgment upheld the findings recorded by the trial Court and dismissed the appeals.

Shri H. L. Sarin, learned counsel appearing for Shiv Dass and others, the alienees, assailed the findings adverse to his clients. Nothing substantial was, however, urged to persuade me to differ with them. Indisputably Smt. Devki being the sister of last male holder of the property in question, is a preferential heir to Shiv Dass. Thus her right to attack the gift of the properties made by Smt. Radhan in favour of Shiv Das is unassailable.

Smt. Radhan was admittedly a limited owner in respect of the property she inherited from Mela Ram. There is no dispute that the parties are governed by Hindu Law. Evidently, she was not competent to make a gift of it with the result that the gift deed is invalid, inoperative and ineffective against the interest of Smt. Devki. There is no reason to disagree with the findings of the lower Courts on the point of limitation. Article 65 of the Limitation Act, 1963 read with the explanation (B) thereto has in my view been appropriately held to be applicable to the facts of the case. Indeed, the learned counsel did not invoke any other article of the Act. Article 65 is intended to apply to a suit for possession of immovable property, based on title where the suit is by a Hindu entitled to the possession of such property on the death of a Hindu female. The period of limitation prescribed by the Article is twelve years from the date when the possession of the defendant becomes adverse to the plaintiff. Explanation lays down that the possession of the defendant becomes adverse fictionally only when the female dies. It follows that a suit, such as the present, if brought within 12 years from the date of the death of the female would be within limitation. Smt. Radhan died on 21st of dec. 1960. The suit was filed by Smt. Devki on 12th of March, 1965 apparently, the suit was brought within limitation.

The contention that the present suit is barred by res judicata is clearly misconceived. Apart from the reasons assigned by the lower Courts for repelling it, against which nothing was urged, the contention could bear fruit provided there was a finding recorded in the previous litigation by the reversioners that the gift deed executed by Smt. Radhan was competent and valid. There was no such finding. The trial Court found in favour of the reversioners holding that Smt. Radhan, being a limited owner of the property, was not competent to make a gift of it and the gift deed in respect of it executed by her was invalid and ineffective against their interest. On appeal by Shiv Dass, the suit filed by the reversioners was dismissed by the reversioners was dismissed by the Lahore High Court on the ground that Shiv Dass was entitled to succeed to the property of Smt. Radhan by virtue of the provisions made in that behalf by Act No. II of 1929 (Hindu Law of Inheritance and Amendment Act) which in the meantime came to be enforced and consequently the gift of the property made by her was no longer open to question at the instance of the 4th degree reversioners. On these facts of the reversioners'' suit and its fate, there is in my opinion, no foundation upon which the plea of res judicata can possibly rest or be given effect to.

Equally meritless is the claim of the alienees from Shiv Dass that the sales in their favour are protected by Section 41 of the Transfer of Property Act. To qualify for the protection, which the section affords, the alienees had to prove not only that the sales in their favour were supported by consideration but to go further and establish by requisite evidence that in dealing with Shiv Dass they had acted in good faith after ascertaining that he had the power to sell the property. The Courts below have concurrently found that there was no proof adduced by them to establish good faith or that necessary enquiries in the circumstances of the case had been made by them before entering into the transactions of sales with Shiv Dass. This is a finding of fact which is binding in the second appeal. It was not urged flaw. However, I am satisfied that the alienees neither acted in good faith i.e. with due care nor did they make necessary enquiries into the title of Shiv Dass. If they had cared to do so they could have known that Smt. Radhan held a limited estate and was not in law competent to make the gift of the property in favour of Shiv Dass. They could have known that the sales by Shiv Dass were obviously open to successful challenge by the reversioners or by an heir to the property superior to them. All the sales took place between the years 1937 and 1954. Long before in 1929, it was clear by the passage of the Act No. II of 1929 that Smt. Devki was an heir to the property in preference to Shiv Dass when the succession opened and that the sales by Shiv Dass could not possibly sustain. This should have put the alienees on their guard. It appears clear that they devoted not the least care while entering into the sale transactions or deliberately took the risk of invasion. The dealings lack in good faith and were concluded without necessary enquiries by the alienees. The alienees are consequently not entitled to lay claim to the protection which S. 41 of the T. P. Act extends.

In view of the above I hold that Smt. Devki had the right to sue; the suit by her is within limitation and is not barred by the rule of res judicata and the gift deed (Exhibit D--2) in favour of Shiv Dass is invalid, inoperative, and ineffective against her interest. I further hold that the alienees from Shiv Dass cannot reap the benefit of S. 41 of the T. P. Act.

Shri G. R. Majithia, Advocate, appearing in the appeal on behalf of Smt. Devki, argued;--

(i) Gift deed Exhibit D--2 cannot be read as carrying a testamentary disposition in favour of Shiv Dass, apart from and independent of the gift of the properties it seeks to make in his favour so that if the gift fails for reason of the limited character of the estate in the hands of Smt. Radhan, testamentary disposition cannot take effect;

(ii) Smt. Radhan, being a limited owner at the time she made the testamestary disposition, Shiv Dass cannot lay claim to inherit the property she left on her death;

(iii) Shiv Dass did not plead in his defence that he was entitled to inherit the property so left by her taking the deed as a will in respect of it;

(iv) Treating the deed as a will, necessary evidence to prove its execution in terms of S. 63(1)(c) of the Indian Evidence Act had not been produced by him.

I will deal with the last argument first, for it will not be necessary to examine the plausibility of the rest of them if I were to hold that due execution of the deed, treating it as a will, had not been legally established. In relation to the argument, it is necessary to mention a few undisputed and proved facts. Exhibit D--2 is not the original document. It is a certified copy of the original obtained from the office of the Registrar, Gurdaspur, and was admitted into evidence as a secondary evidence. The admission of it as such was not questioned before me by the learned counsel. Amar Nath, father of Shiv Dass, appearing as a witness in defence stated that Smt. Radhan executed the gift deed in favour of Shiv Dass. It was read out to her and she thumb marked it, admitting it to be correct and that it was attested by the marginal witnesses in her presence. He also stated that the scribe and the attesting witnesses were all dead. He further stated that Shiv Dass was then a minor and that he had taken possession of the property, of which the gift had been made, on his behalf. Veracity of his statement has not been challenged by the learned counsel. I find no reason either not to accept the truth of it. Coupled with this statement is the endorsement on the gift deed made by the Sub--Registrar who registered the deed, wherein it is stated that the contents of the deed were read out to her word by word and she was made to understand them and thereafter she admitted its execution. The endorsement leaves no doubt that registration of the deed was done in a regular way by the Sub-Registrar after he had received full satisfaction that a deed had been executed by Smt. Radhan and that she had done so with clear knowledge of its contents.

A bare reading of Ss. 58, 59 and 60 of the Indian Registration Act leads to the conclusion that the registration of a document is a solemn act to be performed in the presence of a competent officer whose function is to ensure that proper persons are before him and are identified to his satisfaction and further that all things done before him in his official capacity and verified by his signature, will be presumed to be in order and duly done. It follows, therefore, that the certificate endorsed on the deed by the registering officer under S. 60 of the Act is a relevant piece of evidence for proving its execution. Besides sub--section (5) of S. 57 of the Act directs that a certified copy of a registered document issued by the office of the Registrar shall be admissible for the purpose of providing the contents of the original document. In view of what has been found by me above and the contents of the endorsement I feel no hesitation in holding that the registration of the gift deed in the present case was carried out in complete adherence to the provisions of the aforesaid sections of the Act and that it was not necessary for Shiv Dass to produce any other evidence apart from the certified copy of the deed in proof of the execution of it by Smt. Radhan. Apart from this, there is strong circumstantial evidence to conclude that the deed had been executed by Smt. Radhan. This consists in the fact that the possession of properties gifted thereby was taken by Shiv Dass and he made several alienations of them after the date of its execution. Due execution of the gift deed by Smt. Radhan is thus held proved. Argument of the learned counsel based upon S. 63(1)(c) of the Indian Succession Act and its non-compliance in face of the facts of the case and the law held by me to be applicable, does not arise and is irrelevant and so is the ruling of Delhi High Court in case Shri Kishan v. Union of India, reported as (1967) 69 PLR 233, relied upon by the learned counsel in support of his argument.

Adverting to the other arguments of the learned counsel. I find no merit in the first of them. The decisions relied upon by him in cases, Kartar Singh v. Bhag Singh, 1966 Cur LJ 547 and Ranjit Singh Vs. Garja Singh and Others, are apparently of no assistance to him in view of the contents of the deed, Exhibit D--2. They are inapplicable. The deed makes two different and distinct dispositions, one by way of gift in respect of specified items of property and other testamentary disposition in respect of other property held by Smt. Radhan. There is no interdependence so that if the gift fails for any cause, the efficacy of the testamentary disposition can well stand and remain enforceable. No capital can legitimately be made out of the fact that in the direction relating to the testamentary disposition, the word (donee) was employed. This is merely descriptive of Shiv Dass. This is merely descriptive of Shiv Dass. The argument is consequently rejected.

The second argument also cannot prevail for obvious reasons. There is no inherent incapacity in the case of a female holding a limited estate to make a valid disposition of the property possessed by her. The restriction placed by the Hindu Law on her right to dispose it of was not absolute. Whatever the incapability imposed by the Hindu Law stood removed by the passage of the Hindu Succession Act, 1956. The Act by S. 14 made her the full owner of the property inherited by her and was in her possession. There is no dispute in the present case that Smt. Radhan died after the enforcement of the Act and she was then in possession of the property which is the subject--matter of the dispute. That being so, the testamentary disposition made by her through the gift deed in favour of Shiv Dass is valid and operative. It will speak at the death of the testator and not at the time it is executed. It follows that a will cannot be held to be valid and inoperative merely because it was so when made. The argument of the learned counsel fails.

The third argument cannot in the circumstances of the case succeed. It appears correct that Shiv Dass in his defence did not specifically plead that he was entitled to the property described as ''E'' in the heading of the plaint by virtue of the testamentary disposition made in his favour in respect of it in the gift deed. The argument is liable to be ignored on the short ground that objection based upon absence of pleading has not been taken in the grounds of appeal. The objection was not taken before the trial Court. On the other hand, a validity of the will (sic). This could not be done except for deciding whether or not Shiv Dass was entitled to inherit the property in question. A decision on the issue depends upon the construction of the gift deed alone and not on any evidence. In view of these facts evidently the absence of pleading has caused no prejudice to the appellant (Smt. Devki). Judgment of the Privy Council in case AIR 1930 57 (Privy Council) , which was relied upon by the learned counsel is not attracted to the situation obtaining in this case. For these reasons, the argument is repelled.

In view of the findings recorded by me there is no merit in either of the two appeals. Both are herein dismissed. In the circumstances of the case, however, the parties are left to bear their own costs.

Appeal dismissed.