BECHU Vs. RAM BUJHARAT

JUDGEMENT

(1.) THIS is a defendant's appeal against the judgment and decree dated 26-9-1969 passed by I Temporary Civil and Sessions Judge, Basti, in Civil Appeal No. 122 of 1968. Bechu appellant, Ram Bujharat, Ram Nain and Radhey Shyam, pla intiff-respondents 1 to 3 are real brothers. They are sons of Munesar. Munesar had 2 wives. Bechu appellant is from his first wife, Smt. Thakur Dei. The respondents are sons from his second wife, Smt. Ram Nirahi (P. W. 1), Munesar had a brother Sheo Baran who died leaving his widow Smt. Dhauraji. On 11-11-1964, Smt. Dhanranji executed a gift-deed of her agricultural land in favour of the appellant. She died 5 days later on 16-11-1964. The appellant applied for mutation of his name on the land of Smt. Dhanraii, Smt. Nirahi filed objection. Then she came to know of the gift deed. Consequently in July, 1966 respondents filed suit for cancellation of the gift deed and for possession over 3/4th share in the property of Smt. Dhanraji. The cancellation of the gift-deed was sought on two grounds (1) the appellant got the gift deed executed by exercise of undue influence upon Smt. Dhanraji who was an illiterate old village woman and who was ill and not in her proper senses ; and (2) the gift-deed was not properly attested. The suit was contested by the appellant. The Munsif who tried the suit dismissed the suit. The respondents filed appeal which was decided by the Temporary Civil and Sessions Judge. The lower appellate Court dis agreed with the findings of the trial Court and found that the appellant obtained the gift deed by undue influence and that the appellant had failed to prove that Smt. Dhanraji executed the gift deed knowingly and voluntarily after fully understanding its contents. The lower appellate Court, there fore, set aside the judgment and decree of the trial Court and decreed the respondent's suit. The learned counsel for the appellant read the judgments of both the Courts below. It is clear that the lower appellate Court approached the case from a correct perspective. Smt. Dhanraji was an old illiterate village woman. She was blind. She died 5 days after the execution of the gift-deed. Bechu appellant used to live with her. She was ill from 15 days before her death. It was in evidence of Smt. Ram Nirahi that she was not in her full senses. The appellant took her to Basti for treatment. On that day the appellant got the gift deed executed. In view of this data the lower appellate Court was justified in expecting that the appellant should prove the due execution of the gift deed by Smt. Dhanraji after having fully understood its import and effect. The appellant examined himself only and did not examine any independent witness to show that she was in her full senses, that she had full} understood the document and that the document was result of her consent with full understanding. The appellant did not venture to examine either the scribe of the deed or any of the marginal witnesses. No evidence was given to show that the scribe or the marginal witnesses were not alive. The learned counsel for the appellant firstly urged that the Civil Court did not have jurisdiction to try the suit, that the respondents could easily file suit under Section 229-B of the U. P. Zamindari Abolition and Land Reforms Act and that Section 331 of the said Act barred the jurisdiction of the Civil Court. The trial Court framed an issue on this point, but his point was not pressed before the trial Court and the appellant's counsel gave a clear statement that he was not pressing this point. It appears that this point was raised before the lower appellate Court and the lower appellate Court decided it against the appellant on the ground that according to the allegations of the plaint the gift deed was a voidable document and as such the suit was cognizable by the Civil Court. The learned counsel for the appellant pointed out that Section 123 of the Transfer of Property Act requires that the gift can be affected by a registered document signed and attested by at least two witnesses. He further pointed out that in the plaint it was stated that the gift deed was not properly attested. Therefore, he urged that as the character of the gift deed was challenged the deed became void and not voidable. In case the deed was a void document, the Revenue Court could decide the case under Section 229 and it was not necessary for the respondents to have filed suit in "the Civil Court. Reference was made to the case of Baijnath and others v. Binda and another 1978 R.D. 77 (H.C.). 59. In this case a compromise was set up. The case of the applicant was that his thumb-impression was taken on a plain paper and that later on that paper was utilized for writing out the alleged compromise. It was held that the applicant unmistakenly challenged the character of the docu ment, and the effect of inducement, if found true was to render the document void and as such, such a claim could be agitated before the consolidation Courts. It means that if the document, was void, the case could be tried by Revenue Court and if the document was voidable the case could be filed in the Civil Court for its cancellation. In the present case a perusal of the plaint and the evidence clearly shows that the gift deed was sought to be avoided on the ground of undue influence. While writing the reasons for the cancellation of the gift deed, it was also written that the gift deed was not properly attested. Words "Properly attested" do not mean that the gift deed was not attested at all. A copy of the gift deed is on the record. It clearly show that it was attested by two persons/witnesses. What is meant by saying that the gift deed was not properly attested is not clear either from the plaint or from any material on record. Therefore, by saying that the gift deed was not properly attested it does not mean that it was not at all attested. Therefore, it is not correct to say that the character of the deed was challenged. The gift deed which is on record clearly makes compliance of the provisions of Section 123 of the Transfer of Property Act. In these circumstances it is not correct to say that the deed in question, according to the allegations of the plaint, was a void document and as such the Revenue Court could have entertained the suit. More correctly speaking, it is a suit for cancellation of the gift deed on the ground of undue influence. Therefore, it is a voidable document and as such the suit for its cancellation is clearly maintainable in Civil Court. The contention of the appellant's counsel is, therefore, not correct. The learned counsel for the appellant next contended that the lower appellate Court did not consider the effect of the endorsement of the sub-Registrar. The trial Court mentioned in its judgment that on the original gift deed there was an endorsement of the sub-Registrar that Smt. Dhanraji accepted the execution of the deed after fully understanding its import which was read over and explained to her and as such there was strong presumption of the correctness of the endorsement. THIS endorsement is made in the usual course. If the sub-Registrar had not made this endorsement he could not have registered the document. THIS endorsement, however, does not mean that the execution of the deed was a conscious act of Smt. Dhanraji who was an old illiterate blind village woman. The law gives special pro tection to such type of persons. Therefore, in the instant case, besides the endorsement of the sub- Registrar, it was the duty of the appellant to prove affirmatively that Smt. Dhanraji really intended to execute the gift deed knowing its full import. THIS could be proved by examining the attesting witnesses, but not a single witness was examined in the case. It is possible that this point may not have been urged by the appellant's counsel before the lower appellate Court. If the lower appellate Court did not deal with this point it does not mean that the judgment of the lower appellate Court is vitiated. As indicated above the endorsement of the sub-Registrar is not at all sufficient to prove that the gift deed was not the result of undue influence of the appellant. The learned counsel for the appellant then referred to two pieces of evidence No. (1) judgment of the Consolidation Court dated 2-1-1962 (paper No. 35-A (1). It shows that two Chaks were formed. One of the res pondents and the other of Smt. Dhanraji and the appellant. Mnt. Dhanraji told the Consolidation Officer that the appellant was living with her. THIS fact does not help the appellant. On the other hand it goes against him. THIS document goes to show that the appellant and Smt. Dhanraji were living together and as such the appellant got sufficient occasion to win her confidence. (2) Smt. Ram Nirahi (P. W. 1) stated that the appellant got Dhanraji's Chak. There is nothing wrong in this statement because the gift deed in question is in favour of the appellant. THIS statement does not mean that the appellant got her Chak by inheritance. By inheritance not only the appellant but also the respondents will get share in the Chak of Dhanraji. In this circumstance the alleged statement is of no help to the appellant. No other point was urged by the learned counsel for the appellant. As has already been stated above, the lower appellate Court approached the case from a correct perspective. There is no legal error in the judgment of the lower appellate Court and as such the appeal is without merit. Appeal is dismissed with costs.