SK QAYUM Vs. MOSTT AMBEYA KHATOON

JUDGEMENT

(1.) THE defendants have filed this second appeal against the judgment and decree dated 5.7.1990 passed by the 3 rd Additional District Judge, East Champaran Motihari in Title Appeal No. 71 of 1998/ 73 of 1989 dismissing the appeal and thereby confirming the judgment and decree of the trial court dated 31.5.1988 passed by Sri Bindheshwari Prasad Baitha, Munsif, Motihari in Title Suit No. 45 of 1971 decreeing the plaintiffs respondents' suit.

(2.) THE original plaintiff Mostt. Tasliman filed the aforesaid title suit for the declaration of her title on the suit land and confirmation of possession and also further for declaration that the deed of gift dated 10.3.1969 is void, illegal and are not binding on the plaintiff Tasliman. The plaintiff prayed the aforesaid relief alleging that the defendant No.1 asked her to execute Mokhtarnama i.e. power of attorney in favour of the defendant No.1 on the ground that she has became now very old and, therefore, the plaintiff accompanied him to registry office but the defendant No.1 got two gift deeds executed on 10.3.1969 and registered. The plaintiff signed the gift deed believing the same to be the Mokhtarnama deed and, therefore, the said gift deeds may be declared as void, illegal.

(3.) THE learned counsel for the appellants submitted that the original plaintiff Tasliman has not been examined in this case. After her death the defendant No.14 got himself substituted and transposed as plaintiff but he was also not examined in this case. None of the courts below have considered the evidences of the plaintiffs in support of the case of the plaintiffs pleaded in the plaint. According to the learned counsel both the gift deeds are registered gift deeds and, therefore, there is presumption of its validity. In such circumstances the onus is on the defendants to have rebutted the presumption of genuinety of the gift deeds but both the courts below placed wrong onus on the appellants and discarded the evidence of the witness on flimsy grounds and also both the courts below relied upon inadmissible evidences i.e. the cancellation deed executed by Mostt. Tasliman canceling the registered gift deed unilaterally. According to the learned counsel after execution and registration of the gift deeds and delivering of the possession of the gifted property to the donee the original plaintiff could not have unilaterally cancelled the gift deed. As provided under Section 31 of the Specific Relief Act the only option of the plaintiff was to file suit for cancellation of the gift deed and, therefore, the courts below have wrongly relied upon the cancellation deed.