My photo




Wednesday, January 7, 2015

CIVIL APPEAL NO. 20 OF 2015 [Arising out of SLP (C) No. 921 of 2014] OM PRAKASH (DEAD) TH. HIS LRS. .. Appellant(s) Vs. SHANTI DEVI & ORS. ..Respondent(s)

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.  20  OF 2015
                  [Arising out of SLP (C) No. 921 of 2014]

OM PRAKASH (DEAD) TH. HIS LRS.                       .. Appellant(s)


SHANTI DEVI & ORS.                                    ..Respondent(s)

                           J  U  D  G  M  E  N  T


1     Leave granted.

2     The Appellant before us was the Defendant  in  a  suit  filed  by  the
Respondent-Plaintiff praying for a decree of mandatory injunction  directing
the Appellant to hand over vacant possession of the property in dispute,  on
the predication that the Respondent was the owner of  that  property.    The
Appellant has been successively unsuccessful  in  the  three  Courts  below,
viz., the Trial Court, where Respondent's suit for mandatory injunction  was
decreed against the Appellant; the First Appellate  Court,  which  dismissed
Appellant's First Appeal; and the High Court  of  Punjab  &  Haryana,  which
dismissed the Appellant's Second Appeal.

3     Outlining the facts briefly, the  Respondent-Plaintiff's  case  before
the Trial Court was that he was the owner-allottee of the property  and  had
parted with possession of  the  property  to  the  Appellant  on  a  nominal
licence basis. The parties  are  closely  related  to  each  other  -  being
brothers-in-law  since  the  Appellant/Defendant  was  the  husband  of  the
Plaintiff's sister.   The Plaintiff pleaded that it had been agreed  between
them that as and when required by the Plaintiff the Appellant  would  vacate
the property.   However,  despite  the  Plaintiff's  repeated  requests  the
Appellant did not accede thereto;    accordingly, the  aforesaid  suit  came
to be filed.    Whilst admitting that he had initially been  a  licencee  of
the Respondent, the Appellant pleaded  in  his  Written  Statement  that  on
15.05.1970 the Respondent had executed a Gift Deed in  his  favour,  thereby
making him the owner of the property.  The Appellant/Defendant also  claimed
that the Gift Deed had been registered in and  by  the  Office  of  the  Sub
Registrar,  Patiala,  on  18.05.1970.     In  Replication,  the  Respondent-
Plaintiff has denied execution of the  Gift  Deed  saying  that  because  of
close relationship  the  Defendant  may  have  obtained  his  signatures  by
misrepresentations, essentially admitting his signature on that document.

4     Concurrent findings of  the Trial Court and the  Appellate  Court  are
to the effect that the Gift Deed had not been proved under Sections  68  and
69 of the Evidence Act;  the evidence that had been led  was  found  wanting
as regards proof of execution of the Gift Deed.  The  High  Court  dismissed
the Second Appeal finding no substantial question of law before  it  and  no
justification for interference with the findings  of  facts  by  the  Courts

5     For facility of reference the relevant Sections of  the  Evidence  Act
are reproduced:
      68. Proof of execution of document required by law to be  attested.-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 (16 of 1908), unless its  execution  by  the  person  by  whom  it
purports to have been executed is specifically denied.

      69. Proof where no  attesting  witness  found.-If  no  such  attesting
witness can be found, or if the document purports to have been  executed  in
the United Kingdom, it must be proved that the attestation of one  attesting
witness at least is in his  handwriting,  and  that  the  signature  of  the
person executing the document is in the handwriting of that person.

      90. Presumption as to documents thirty years old.-Where any  document,
purporting or proved to be thirty years old, is produced  from  any  custody
which the Court in the particular  case  considers  proper,  the  Court  may
presume that the signature and every other  part  of  such  document,  which
purports to be in the handwriting of  any  particular  person,  is  in  that
person's handwriting, and, in the case of a document executed  or  attested,
that it was duly executed and attested by the persons by  whom  it  purports
to be executed and attested.
Explanation.-Documents are said to be in proper custody if they are  in  the
place in which, and under the care of  the  person  with  whom,  they  would
naturally be; but no custody is improper if it  is  proved  to  have  had  a
legitimate origin, or if the circumstances of the particular case  are  such
as to render such an origin probable."
This Explanation applies also to section 81.

6     The due execution and attestation of this Gift Deed is the sole  point
in issue before us.  The Appellant has rested his  case  on  the  favourable
presumption contained in Section 90 of the Evidence Act i.e. that  the  Gift
Deed being thirty years old should be taken as  having  been  duly  executed
and attested.  The Appellant seems to have made little or  no  endeavour  to
prove the Gift Deed without the advantage of  this  presumption.       Under
Section 90, before any question of presuming a  document's  valid  execution
can emerge, the document must purport and be proved to be thirty years  old.
The law surrounding the date of computation of the  elapse  of  thirty-years
stands long-settled, since the verdict of  the  Privy  Council  in  Surendra
Krishna Roy v. Mirza Mahammad Syed Ali Mutawali AIR 1936 PC 15,  which  held
that the period of thirty years is to be reckoned, not from  the  date  upon
which the Deed is filed in Court but from the date on which, it having  been
tendered in evidence, its genuineness or otherwise becomes the  province  of
proof.  Generally speaking, although the date  on  which  the  document  has
been tendered in evidence or subjected  to  being  proved/exhibited  is  the
relevant date from which its antiquity  is  to  be  computed,  we  think  it
necessary to underscore that it should be produced at the earliest  so  that
it is not looked upon askance and with suspicion so far as its  authenticity
is concerned.

8     Section 68 prescribes that 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.   Section
123 of the Transfer  of  Property  Act,  1882  mandates  that  a  Gift  Deed
pertaining  to  immovable  property  must  be  effected  by   a   registered
instrument signed by or on behalf of the donor and attested by at least  two
witnesses.   Section 17 of the Registration Act,  1908  also  requires  that
instruments of gift of immovable property "shall  be  registered."   Section
34, thereafter, requires the executants or their authorized  representatives
of the document executed for  registration  appear  before  the  registering
officer.   However, the witnesses  to  a  document  need  not  also  be  the
witnesses to  its  registration.   The  pandect  being  Part  X,  comprising
Sections 47 to 50 of the Registration Act  would  next  be  required  to  be
adverted to.  Section 47 adumbrates that the registered document  will  take
effect from the date of its execution.   Section 48  is  indeed  significant
in that it clarifies that a registered  document  will  probatively  prevail
over oral agreements, except for an agreement or declaration which does  not
itself mandatorily require  registration  provided  the  oral  agreement  is
accompanied by delivery of possession.  The preeminent Section  49  declares
that if any document despite  requiring  registration  is  not  so  done  it
shall not be received in evidence or attain any legal  efficacy,  except  in
the context of a suit for specific performance, or if it is intended  to  be
used to prove any collateral  transaction.    We  have  ventured  into  this
lengthy and arguably avoidable analysis to accentuate on two aspects  -  (a)
the imperative necessity to produce in evidence a written  instrument  where
it exists; and (b) that the registration of documents does not per se,  ipso
facto,  render  it  impervious  to  challenge  or  and  make  its  reception
automatic in curial proceedings.

9     The Appellant/Defendant had led evidence of himself as DW1 as well  as
DW2 to DW5, none of whom were either of the attesting witnesses to the  Gift
Deed.   It has also not been clarified whether the  attesting  witnesses  or
either of them was also witness before the Sub-Registrar when the Gift  Deed
was accorded registration.   It should be noted that law  does  not  mandate
that the attesting witnesses to a document must also be present at the  time
of its registration under the Registration Act.   Reasons  remain  recondite
as regards this remissness  or  even  as  to  their  not  being  'found'  as
postulated in Section 69, although there is a vague  reference  to  both  of
them having died by the time the Defendant/Appellant had  started  recording
his evidence.   Section 69 provides for "proof where  no  attesting  witness
found".   It  is  at  once  apparent  that  this  provision  anticipates   a
reasonable anxiety emerging out of the  peremptoriness  of  Section  68,  in
that it addresses, inter alia, a  situation  where  none  of  the  attesting
witnesses to a document (a gift deed, in this case) are alive  at  the  time
of the curial investigation thereof.   Not  leaving  litigants  forlorn  for
proof under Section 68, Section 69 places emphasis on handwriting(s) of  the
putative  deceased  or  the  'not  found'  attestator(s),  along  with   the
signatures of the executant.   We  must  be  quick  to  elucidate  that  the
position is akin to  the  reception  of  secondary  evidence,  in  that  the
successful passage from the rigours of Section  68  can  be  met  contingent
upon the proved non-availability of the attesting witnesses to  a  document.
 Litigants are, therefore, not faced with an evidentiary cul-de-sac.    They
can discharge their burden by proving, in the  alternate  mode  and  manners
conceived by the Act, the signatures of the putative attestators along  with
the handwriting of the executant.   The Appellant herein palpably failed  in
proving the signatures of the attestators to the Gift Deed, and,  therefore,
has pursued his case by  evoking  Section  90  as  the  cornerstone  of  his

10    The Appellant has, in his effort to succeed before us,  variously  and
discrepantly theorised the thirty-year statutory requirement. As one  ground
in his Appeal, the Appellant has pleaded for  a  relaxation  of  the  thirty
year period, admitting the  tendering  in  evidence  of  the  Gift  Deed  on
14.10.99 in his examination-in-chief/statement by which time only  29  years
5 months had elapsed.    The plea for relaxation cannot be  granted  as  the
antiquity of the document is the very raison d'etre for it  to  be  bestowed
with the curial presumption that the signature and every other part of  such
document which purports to be the handwriting of any particular  person,  is
in that person's handwriting, and, in the case of  a  document  executed  or
attested, that it was duly executed and attested by the persons by  whom  it
purports to be executed and attested.  The Court could not have  relaxed  or
discounted the short fall of seven months.   As another, the  Appellant  has
also pleaded that the period be  calculated  from  21.07.2000  the  date  of
testimony of DW5,  the  Registration  Clerk  from  the  Office  of  the  Sub
Registrar, Patiala, who had deposed (unsuccessfully,  as  concluded  by  the
Learned Courts below) as to the execution of the Gift Deed; he produced  the
copy of the Gift Deed available in the Sub Registrar's Office.  On the  date
of the deposition of DW5, thirty years had  indubitably  elapsed  since  the
execution and/or the registration  of  the  Gift  Deed.    Attempting  again
elsewise, the Appellant has submitted the proper date of calculation as  the
date of judgment of the Trial Court.   As  far  as  DW5  was  concerned,  he
could only have, and which he did, prove the date on  which  the  Gift  Deed
was presented for registration, i.e.  18.5.1970,  thereby  proving  to  that
extent the antiquity of that Deed.   If it crossed the  thirty  year  period
the  Defendant  may  have  succeeded  in  claiming  the  advantage  of   the
presumption contained in Section 90 unless the relevant date  would  be  the
date of the recording of his statement.     If  the  first  attempt  of  the
Defendant/Appellant  before  us,  to  prove  the  Gift  Deed   occurred   on
21.7.2000, then we think that to be the proper  and  appropriate  date  from
whence the thirty year period ought  to  be  counted  backwards.    It  also
appears to us to be facially plain that the Clerk from  the  Office  of  the
Sub-Registrar could only testify as to whether the  document  sought  to  be
proved is in actuality was the one which was, in fact, duly  registered,  by
producing the original records or if permissible by  Rules  by  tendering  a
certified copy thereof.  This witness could not possibly have said  anything
more.   In the event, it would have been  sagacious  for  the  Defendant  to
have delayed the recording of his own statement beyond 18.5.2000  so  as  to
inter any contention that the Gift Deed had been tendered in evidence  after
its  attaining  a  thirty  year  vintage.   Most  often  where  the   Courts
countenance document which has been in existence for thirty years  or  more,
the likelihood of either of the attestators thereof being  alive  is  rather
remote.   Once it is satisfactorily  proved  that  the  document  is  thirty
years or more in age, Section 90 thereupon dispenses  with  the  formalities
of producing the executant and or the attestators thereto.

11      It  appears  that  the  registered  Gift  Deed  was  sought  to   be
proved/exhibited by the Defendant himself.   If this occurred prior  to  the
Gift Deed attaining the age of thirty years then Section 90 of the  Evidence
Act, 1872 would not be of avail to the Defendant,  but  if  the  Defendant's
testimony came to be tendered and recorded thirty years  subsequent  to  the
execution of the Gift Deed, then the  presumption  attached  to  Section  90
could be taken advantage of.   Lastly, it would logically  follow  that  the
contention  of  the  Appellant/Defendant  that   the   relevant   date   for
computation of age in reverse should be the date  of  the  judgment  of  the
Trial Court is clearly incorrect.

12    The first and fatal stumbling block of the Appellant's case, then,  is
that at the time of tendering of the Gift Deed before the Trial  Court,  the
thirty-year maturation period provided by Section 90 was not satisfied,  the
Gift Deed having been tendered in evidence  after  around  29  and  one-half
years, since he had alluded to it in the course of  the  Defendant/Appellant
examining himself  unlike  the  stage  of  pleadings  this  incontrovertibly
partook the nature of tendering evidence.  The  time  prerequisite  to  even
essay availing of the Court's discretionary powers under Section 90 had  not
been met. Being a statutory requirement, Courts cannot alter  the  operation
of the statute by reading into it as allowing a document aged  29  and  one-
half years to be open to the law's presumption. The  Judgment  of  the  High
Court below has considered the issue of this  document's  eligibility  under
Section 90, and repudiated this submission, the document not  even,  echoing
the words of Section 90, "purporting" to be thirty years old at the time  of
tendering. We hasten to add that even if the document  purported  or  proved
to be thirty years old, the Appellant  would  not  axiomatically  receive  a
favourable presumption, the Section 90  presumption  being  a  discretionary
13    While clarifying law as we have striven to do above,  since  the  Gift
Deed in question was tendered  in  evidence  five  months  prior  to  having
become thirty years old, the Appeal is devoid of merits.  The Appellant  did
not even attempt to prove the Gift Deed in any   manner known in law.
14    The Interim Order is recalled.     The  Appeal  is  dismissed  but  we
desist from imposing costs.

                                          [ANIL R. DAVE]

                                          [M.Y. EQBAL]

                                          [VIKRAMAJIT SEN]
New Delhi
January 05,  2015.


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.