Vineet Kothari, J.@mdashThis appeal has been preferred by the plaintiff Santoki Bai W/o. Dulam Ram, by caste Brahmin, resident of Rohida, Dist. Sirohi u/s 96 C.P.C. against the judgment and decree dtd. 18.6.1986 passed by the learned Dist. Judge, Sirohi dismissing the original civil suit No. 225/1984 (16/84)- Santoki Bai vs. Lal Shankar and Ors. which was filed by the plaintiff seeking cancellation of registered gift-deed dtd. 25.5.1977 Ex. 1 executed by the plaintiff herself in favour of Smt. Vidhya Devi W/o. Sh. Lal Shankar, who was sister''s daughter (Bhanji) of the plaintiff, giving away her residential house belonging to the plaintiff situated at village Rohida, Dist. Sirohi, description and neighbourhood of which is given in registered gift-deed Ex. 1 to donee Smt. Vidhya Devi. The plaintiff Santoki Bai filed the present suit for cancellation of said gift-deed on 15.4.1984 after seven years and the plaintiff claimed in the suit that the said gift-deed dtd. 25.5.1977 was got executed by Lal Shankar, husband of Vidhya Devi misrepresenting to the plaintiff that the said document was for adoption of Atul, natural son of Lal Shankar and Vidhya Devi by Santoki Devi as they were serving the plaintiff Santoki Bai in her old age and even her husband who was suffering from paralysis for last 16 to 18 years and therefore, the said gift deserves to be cancelled.
2. The defendant Vidhya Devi and Lal Shankar filed written statement and on the basis of pleadings of the parties, the learned trial Court framed the following six issues in the said suit including the relief:
3. On behalf of the plaintiff, P.W. 1 Santoki Bai, P.W. 2 Mota Ram, P.W. 3 Kundan Lal, P.W. 4 Bhika Lal, P.W. 5 Chota Lal, P.W. 6 Arjun Singh, P.W. 7 Sita Ram, P.W. 8 Jora Ram, P.W. 9 Kamla Devi and P.W. 10 Poosa Ram were examined besides documentary evidence, namely, Ex. 1 registered gift-deed, Ex. 2 letter dtd. 14.2.1983 written by Jagdish elder son of Vidhyadevi to the plaintiff and Ex. 3 AD receipt, whereas on behalf of the respondents-defendants, D.W. 1 Lal Shankar, D.W. 2 Vidhya Devi, D.W. 3 Kaku Bhai, D.W. 4 Trilok Chand and D.W. 5 Govindram Bhatt were examined and documentary evidence Ex. D/1 copy of notice, Ex. D/2 reply thereto were produced.
4. The learned trial Court while deciding issue No. 1 and 4 in favour of the plaintiff and against the defendants. However, deciding issue No. 2 and 5 against the plaintiff, ultimately dismissed the suit. Being aggrieved by the same, the plaintiff filed the present first appeal before this Court u/s 96 C.P.C. on 18.10.1986, whereas the defendants filed cross-objections with respect to issue No. 1 decided against them in this Court on 9.3.1987.
5. During the course of pendency of this appeal, the plaintiff Santoki Bai expired on 19.11.1988 and one Jitendra Kumar S/o. Mahendra Kumar Purohit claiming to be adoptive son of deceased Santoki Bai, was taken on record as legal representative of plaintiff Santoki Bai who is now pursuing the present first appeal before this Court. The said Jitendra Kumar is the son of Mahendra Kumar, son-in-law of Smt. Kamla Bai, a niece of Santoki Bai. The said Mahendra Kumar produced one adoption-deed dtd. 22.10.1985 purportedly Santoki Bai adopting Jitendra Kumar, who was minor at that point of time and on the basis of same, vide order dtd. 13.3.1989, passed by a coordinate Bench of this Court, the said Jitendra Kumar was taken on record as legal representative of Santoki Bai. The said Jitendra Kumar is the son of Mahendra Kumar and Harsha Devi. An application to recall this order was filed by the defendants, but it was rejected by the same Bench on 17.10.1990. However, the said document, the alleged adoption-deed dtd. 22.10.1985 has not been placed on record of this Court along with an application under Order 41 Rule 21 C.P.C. nor it has been otherwise taken on record except for the purpose of allowing application under Order 22 Rule 3 CPC for pursuing this appeal and therefore, such additional evidence cannot be held admissible at this stage.
6. Mr. V.N. Kalla, learned counsel appearing for the plaintiff-appellant taking the court through the statement of P.W. 1 Santoki Bai herself and Ex. 2 letter dt. 14.2.1983 written by Jagdish to plaintiff Santoki Bai submitted that while issue No. 1 was rightly decided by the learned trial Court in favour of the plaintiff holding that the plaintiff was misled to execute the said Gift-deed on account of misrepresentation by Lal Shankar as if she was to execute an adoption-deed for adopting Atul S/o. Lal Shankar and Vidhya Devi. The said gift-deed was executed on the stamp paper at Pindwara and therefore, the learned trial Court while deciding issue No. 4 regarding limitation against the plaintiff, has erred dismissing the suit filed by the plaintiff, as the plaintiff Santoki Bai came to know of the said gift-deed only upon the letter dtd. 14.3.1983 received by her which was written by Jagdish and therefore, the suit was within limitation of 3 years, when filed on 15.4.1984. He, therefore, submitted that the present appeal of the appellant, who is taken on record as legal representative of the plaintiff Santoki Bai deserves to be allowed and the judgment under appeal to the extent of findings against the plaintiff deserves to be set aside.
7. Per contra, Mr. Sunil Ranwa appearing for Mr. Manish Shishodia for the defendants-respondents Lal Shankar and Vidhya Devi urged that the learned Trial Court has erred in deciding issue No. 1 regarding validity of registered gift-deed itself in favour of plaintiff against the defendant, whereas the issue No. 4 regarding limitation of filing suit was rightly decided in favour of the defendants. He drew the attention of the Court towards their cross-examination filed on behalf of the defendants on the finding of issue No. 1 returned by the learned trial Court and submitted that there was no misrepresentation on behalf of the defendants for execution of the said registered gift-deed by the plaintiff Santoki Bai in favour of Vidhya Devi, her own sister''s daughter. He urged that said Vidhya Devi and her husband Lal Shankar throughout their life had served the plaintiff Santoki Bai and even her husband was suffering from paralysis for last 16 to 18 years and the dispute arose only when the said Kamla Devi and her son-in-law Mahendra Kumar and his wife Harsha Devi entered the scene about two years prior to death of said plaintiff Santoki Devi on 19.11.1988 and they started these dispute and even purportedly got executed the said adoption-deed dtd. 22.10.1985 which has been placed on record by the appellant Jitendra Kumar along with his application under Order 22 Rule 3 C.P.C. for being taken on record on the death of said plaintiff Santoki Bai before; this Court.
8. Mr. Sunil Ranwa, learned counsel for the respondents also urged that vide letter Ex. 2 dtd. 14.2.1983 written by the elder son of Lal Shankar and Vidhya Devi, Mr. Jagdish to the plaintiff Santoki Bai on the contrary expressed the anguish of the family about the bad reputation created for the said document as they had never asked for any transfer of property belonging to the plaintiff as consideration of the services rendered to her and her husband. The learned counsel however, urged that the said letter can neither be said to be the beginning point of limitation of 3 years for filing the said to be the beginning point of limitation of 3 years for filing the said suit for cancellation of registered gift-deed, nor it is a fact that the plaintiff came to know of the execution of said gift-deed only through the said letter as in her statement recorded by the learned trial Court on 20.12.1984 itself, she has stated that she had mentioned about the execution of said gift-deed to her brother Mr. Inder Mal Dave, who was a practicing advocate at Pindwara about 4 years ago. Her statement was recorded soon after filing of the suit on 15.4.1984 by the learned trial Court on 20.12.1984 after a gap of about 8 months and therefore, the learned counsel Mr. Sunil Ranwa urged that the period of limitation even if not counted from the date of gift-deed itself i.e. 25.5.1977, which it should be so counted, but even if it be counted from the date when her brother was informed about the said fact, the suit was barred by limitation of 3 years. Therefore, it is wrong to say that the plaintiff came to know about the execution of this gift-deed only through letter Ex. 2 dtd. 14.2.1983 and therefore, the learned counsel urged that suit was rightly held to be barred by time by the learned trial Court.
9. Mr. Sunil Ranwa, learned counsel for the respondent however also urged that finding on issue No. 1 given by the learned trial Court are also incorrect and unsustainable, since the presumption of correctness of execution of document is there upon its registration by the Sub-Registrar and the gift-deed Ex. 1 dtd. 25.5.1977 is admittedly a registered document, duly attested by two witnesses, namely, Govind Ram Bhatt, Executive Officer, Municipal Council, Pindwara and another Sh. Chhog Singh S/o. Bhop Singh Panwar and both of them were also examined by the learned trial Court. Even P.W. 1 plaintiff Santoki Bai herself admitted the execution of said document and except the averment that she was misled into believing that it was an adoption-deed, there was no denial about execution and registration of the said Gift-deed. The learned counsel, therefore, submitted that the cross-objections filed by the defendants deserved to be allowed and findings on issue No. 1 given by the learned trial Court deserved to be reversed by this Court in the present first appeal. He relied upon the decision of Hon''ble Supreme Court in the case of
10. No case law was cited by the learned counsel for the plaintiff-appellant Mr. V.N. Kalla.
11. I have heard both the learned counsels at length, perused the judgment under appeal and evidence on record, statements of various witnesses and documents.
12. Having given my thoughtful consideration to the rival submissions and the evidence on record, this Court is of the opinion that the learned trial Court has erred in deciding issue No. 1 in favour of the plaintiff and against the defendants. The execution of the registered gift-deed on 25.5.1977 by the plaintiff herself, who was examined by the learned trial Court is not even disputed by her. The attesting witnesses were also produced before the Court to prove the same, who have clearly stated that the said document was executed by her in their presence at Pindwara and was got registered on the same date. From the statements of various parties, unrebutted facts have also emerged that donee Vidhya Devi Daughter of plaintiff donor Santoki Bai and her family members had served the plaintiff Santoki Bai for number of years, who unfortunately became widow issueless and her husband suffered paralysis for last 16 to 18 years and donee family served them for all these years except for last two years of her life, when the plaintiff was under the influence of her nephew''s wife Kamla Devi and her son-in-law Mahendra Kumar and his wife Harsha Devi who entered the scene while the defendant''s family was living at Mumbai. Statement of D.W. 1 Lal Shankar also shows that the original documents of the property were still with the plaintiff-appellant including the registered gift-deed itself after its execution dtd. 25.5.1977 and they remained with the plaintiff throughout her life. Stipulation was also given in Ex. 1- Gift-deed, that despite the said gift-deed executed during the life time of the plaintiff, she would have a right to continue to live in the said residential house during her life time and after her death, the possession of suit property will be handed over to donee Smt. Vidhya Devi.
13. Thus, the execution of the gift-deed, which is registered was not disputed by any of the parties except the averment made by the plaintiff herself that she was misled to believe that she was going to execute the adoption-deed in favour of Atul natural son of Smt. Vidhya Devi and her husband Lal Shankar. This statement at the fag end of her life at the age of 82 years when she was examined by the Court on 20.12.1984, appears to be under the influence of Kamla Devi and her son-in-law Mahendra Kumar Purohit and his wife Harsha Devi who sought to introduce themselves as successor of this property by an adoption-deed dtd. 22.10.1985 purportedly adopting their natural son Sh. Jitendra Kumar by plaintiff Santoki Bai.
14. Gift as a mode of conveyance of immovable property does not require immediate handing over of possession of property to the donee. It is only the movable property which when given by way of gift, is required to be handed over to the donee immediately while accepting the gift. Therefore, the findings of the learned trial Court that the plaintiff was made by misrepresentation by donee Smt. Vidhya Devi or her husband Lal Shankar and therefore, the issue No. 1 was required to be decided in favour of the plaintiff is not sustainable and the same deserves to be reversed.
15. On the question of limitation on issue No. 4 also, this Court is satisfied that the plaintiff could not derive any benefit by letter Ex. 2 dtd. 14.2.1983 written by Jagdish, elder son of Vidhya Devi and her husband Lal Shankar. A bare perusal of the Ex. 2 letter itself shows that the same does not even mention anything about the gift or "Bakshish" of property in favour of Vidhya Devi. The term "Bakshish" or gift is not even mentioned in the said letter. On the contrary, the said Jagdish addressed the said letter to her Mausi, the plaintiff Santoki Bai that the defendants felt badly insulted, when the relatives and other neighbourhood said something wrong about giving and taking away the property, while not giving Atul in adoption to the plaintiff Santoki Bai. The tenor of said letter Ex. 2, therefore, cannot be said to be giving any information for the first time to the plaintiff that donee''s family held the property through Ex. 1 gift-deed, so as to constitute an information to the plaintiff for the first time giving her the beginning point of limitation for challenging the same. On the contrary, P.W. 1 Santoki Bai plaintiff herself in her cross-examination recorded by the learned trial Court on 20.12.1984 has admitted that she had informed about execution of gift-deed to her brother Indar Mal Dave, who was a practicing advocate who after seeing the papers said that why did she commit this wrong and she should have informed him about the same at that point of time itself. This clearly shows that the plaintiff had full knowledge and consent in executing gift-deed dtd. 25.5.1977 at the relevant point of time and the execution of the same is not even denied by her. Therefore, any subsequent dispute raised by the appellant-plaintiff at the instance of Kamla Devi and her son-in-law Mahendra Kumar and his wife Harsha Devi and making basis of letter Ex. 2 dtd. 14.2.1983 of Jagdish for bringing the suit within limitation could not be said to be really bringing the suit within limitation. The same was clearly time barred and the Trial Court was justified in holding the suit to be time barred.
16. The Hon''ble Supreme Court in the case of
28. A suit for cancellation of transaction whether on the ground of being void or voidable would be governed by Article 59 of the Limitation Act. The suit, therefore, should have been filed within a period of three years from the date of knowledge of the fact that the transaction which according to the plaintiff was void or voidable had taken place. The suit having not been filed within a period of three years, the suit has rightly been held to be barred by limitation.
17. The present suit has neither been filed within 3 years from the date of execution of gift deed on 25.5.1977 nor within 3 years from the date of knowledge to the plaintiff, which can be attributed to her own admission about 4 years prior to 20.12.1984.
18. The Division Bench of H.P. High Court in the case of Kanwaranl Madna Vati vs. Raghunath Singh (supra) also held in para 20 that there is presumption of correctness of document u/s 59 of the Registration Act when a certificate is given by the Registrar u/s 60(2) of the said Act and same shall be admissible in evidence for proving that the document has been duly registered in the manner provided by this Act The relevant extract of said para is reproduced below for ready reference:
By virtue of Section 60(2), presumption of correctness attaches to the endorsements referred to in Section 59 made by the Registrar on the mortgage deed and where the mortgagor admitted execution of the deed before the Registrar after the deed was explained to him, it cannot afterwards be argued that he was ignorant of the nature of the transaction.
19. This Court respectfully agrees with the aforesaid propositions of case law relied upon by the learned counsel for the respondents-defendants and is relined to hold that registered gift-deed could not be rendered infructuous, void or voidable in these circumstances and there was no misrepresentation on the part of the donee Vidhya Devi or her husband Lal Shankar at the time of execution of said Gift-deed Ex. 1. The suit is also required to be held to be time barred as the same was not filed within 3 years from the date of execution of said gift-deed, nor Ex. 2 letter dtd. 14.2.1983 can be said to be giving any information for the first time to the plaintiff that the said document was executed by her. Therefore, the Court below was right in holding the suit to be barred by time, while it has erred in deciding issue No. 1 about validity of gift-deed against the defendants. The findings on issue No. 1 are, thus, liable to be reversed and they are hereby reversed. The cross-objections of the defendants-respondents in the present appeal are thus liable to be allowed. Accordingly, the first appeal filed by the appellant-plaintiff is dismissed, witness the cross-objections of the respondents-defendants are allowed. The plaintiff-appellant now represented by Jitendra Kumar shall hand-over the title documents, the original gift-deed and the possession of the suit property to the defendants Vidhya Devi and Lal Shankar, if not already handed over within two months from today. The decree be made accordingly. No order as to costs.
