APPEAL FROM APPELLATE DECREE No.603 OF 1991 *** (Against the judgment and decree dated 19.09.1991 passed by Sri Birendra Kumar Sinha No.II, 3rd Additional District Judge, Saran at Chapra in Title Appeal No.101 of 1979 affirming the judgment and decree dated 14.05.1979 passed by Sri Ramprit Pathak, 6th Subordinate Judge, Chapra in Title Suit No. 153 of 1972) 1(a) Most. Shiv Kumari, W/o Bhulan Singh 1(b) Ashok Kumar, S/o Bhulan Singh 1(c) Arun Kumar Singh, S/o Bhulan Singh 1(d) Raj Kumar Singh @ Mantu Singh, S/o Bhulan Singh 1(e) Smt. Manju Devi, D/o Bhulan Singh 1(f) Smt. Rina Devi, D/o Bhulan Singh 2. Bishwanath Singh son of Srinath Singh and resident of village Nandanpur, P.S. Taraya, P.O. Govandari, District Saran …..Defendants-Appellants-Appellants. Versus 1. Smt. Tapeshwari Devi wife of Sheopujan Singh allegedly daughter of Babu Gaya Singh 2. Smt. Bhageshwari Devi wife of Sri Narain Singh allegedly daughter of Late Gaya Singh, both residents of village Charihara, P.S. Masarakh, District Saran, presently residing in village Nandanpur, P.S. Taraya, P.O. Govandari, District Saran. …Plaintiffs-Respondents-Respondents For the appellants : M/s S.S. Dwivedi, Sr. Advocate and R.S. Dwivedi, Advocate. For the respondents: M/s S.N. Ray, Sr. Advocate, D.K.Singh and Chandra Shekhar Singh, Advocates. *** P R E S E N T HON'BLE MR. JUSTICE S.N. HUSSAIN S.N. Hussain, J. This Second Appeal has been filed by the defendants-appellants-appellants against the judgments and decree of both the learned courts below. 2. The matter arises out of Title Suit No.153 of 1972, which was filed by plaintiffs-respondents-respondents for declaration that all the four deeds of gift dated 20.03.1972 (Ext.G series) said to have been executed by Late Gaya Singh (father of the plaintiffs) in favour of the defendants with respect to the suit properties described in Schedule-I of the plaint were illegal, inoperative, without jurisdiction, null and void and also for confirmation of possession or alternatively recovery of possession, etc. 3. Admittedly the suit properties belonged to one Gaya Singh, whereas the two main points of dispute between the two parties were that as to whether the said Gaya Singh left behind two daughters as his heirs and legal representatives inheriting the suit properties as the impugned gift deeds were illegal, void and inoperative as claimed by the plaintiffs and that as to whether the said Gaya Singh died issueless after 2 executing the impugned gift deeds in favour of his nephews, namely the defendants, which were legal and valid as claimed by the defendants. 4. The case of the plaintiffs-respondents was that their father Gaya Singh had earlier filed Partition Suit No. 73 of 1959 against his cousin Srinath Singh (father of defendants) for partition of the ancestral land, which was decreed on compromise (Ext.9) by the learned Subordinate Judge-I, Chapra according to which suit land fell into the share of Gaya Singh who remained in its exclusive possession as absolute owner thereof since then. It was also claimed that Gaya Singh died on 25.03.1972 after 15 days ailment due to paralytic attack during which period he remained bed ridden, and when his condition deteriorated and he became unconscious on 24.03.1972, defendant no.1 came there and on one pretext or the other sent the plaintiffs out of the room for some time and hence plaintiffs apprehended that he might have taken L.T.I. of the unconscious Gaya Singh on some papers and later converted them into gift deeds. The genealogical table given by the plaintiffs was as follows: Thakur Prasad Singh Dharamdeo Singh Jagdish Singh Gaya Singh Srinath Singh = Dewanti Kuer (Pl.1) Tapeshwari Bhageshwari Bhuban Singh Vishwanath Singh (Pl.2) (Pl.3) (D.1) (D.2) 5. Although the defendants claimed that Gaya Singh was issueless, but they admitted the other part of the genealogy and also admitted that Gaya Singh left behind a widow Dewanti Kuer, who had filed the aforesaid suit along with two other plaintiffs claiming them to be her daughters from Gaya Singh. It was also claimed by the defendants 3 that Gaya Singh was issueless and was looked after by the defendants who were his nephews and out of love and affection he executed the impugned deeds of gift dated 20.03.1972 in their favour, whereafter he died suddenly on 25.03.1972 due to heart attack and the defendants continued in possession of the suit properties. 6. After considering the respective claims of the parties as per their pleadings, the trial court framed the following issues for deciding the Title Suit. (i) Is the suit as framed maintainable? (ii) Have the plaintiffs got any cause of action for the suit? (iii) Whether plaintiff nos. 1 and 2 are daughters of Late Gaya Singh? (iv) Whether four deeds of gift dated 20.03.1972 purported to have been executed by Late Gaya Singh are forged, fraudulent, invalid, illegal, inoperative, without jurisdiction and void? (v) Whether the plaintiffs are entitled to a decree for confirmation of possession or in the alternative for recovery of possession as prayed for by them in respect of the suit land? (vi) To what relief or reliefs, if any, the plaintiffs are entitled? 7. The learned Additional Subordinate Judge-6, Chapra after considering the respective arguments and evidence of the parties decreed the said suit, namely T.S. No. 153 of 1972 on contest with cost vide his judgment and decree dated 14.05.1979 after arriving at the following findings:- (a) Evidence of the parties both oral and documentary establishes beyond any doubt that plaintiff nos. 2 and 3 are daughters of Late Gaya Singh. (b) Late Gaya Singh died on 25.03.1972 due to paralytic attack after prolonged illness and not due to heart failure. (c) On 20.03.1972 Gaya Singh was bed ridden and unconscious and thus he could not have executed the disputed deeds of gift as alleged. (d) The averment in the disputed deeds of gift that Gaya Singh was issueless is baseless and false. (e) Original plaintiff no.1 the widow of Gaya Singh is not of weak intellect and the averments in the impugned deeds of gift to that effect is a pure concoction. (f) It is fully proved that neither Gaya Singh was an illiterate man knowing to sign only nor his hands were trembling and hence such averments in the deeds of gift are evidently incorrect. 4 (g) The defendants have failed to adduce any direct evidence on the point of Late Gaya Singh putting his L.T.I. on the deeds of gift while alive and conscious. (h) As per the defendants Gaya Singh was hale and hearty at the time of execution of impugned deeds of gift but the defendants failed to give any reason as to why he would render himself and his wife and children without any property by gifting his properties to the defendants, specially when according to the defendants the widow of Gaya Singh was of a weak intellect but no provision was made either for Gaya Singh himself or for his widow. (i) All the four deeds of gift Ext.G series are forged, fraudulent, invalid, without jurisdiction and inoperative. (j) The defendants had taken possession of the suit land simply on the basis of alleged deeds of gift which has already been held to be fraudulent, forged, invalid, inoperative and therefore they are in possession of the suit land as trespassers and the plaintiffs are entitled to a decree for recovery of possession. (k) The suit as framed is maintainable and plaintiffs have good cause of action for the suit. (l) Since there is no material on record with respect to the plaintiffs’ claim of mesne profit or interest, no such relief can be allowed. 8. Against the aforesaid judgment and decree of the trial court the defendants filed Title Appeal No. 101 of 1979 in which the plaintiffs-respondents filed a cross objection for the relief of mesne profit with interest. The learned court of appeal below framed the following points for deciding the title appeal:- (i) Whether the trial court failed to evaluate the pure circumstantial evidence placed on behalf of the plaintiffs and thereby coming to a wrong conclusion about the impugned deeds of gift? (ii) Whether the trial court failed to appreciate the points of law involved in the suit as pointed out by the defendants? 5 (iii) Whether the evidence of PWs. contained absurdities which should not have been believed? (iv) Whether the judgment of the trial court was vitiated due to non- appreciation of facts and evidence on record as well as the law? (v) Whether the impugned deeds of gift Ext.G series are valid, genuine, legal, operative and binding on the plaintiffs? (vi) Whether plaintiff nos.2 and 3 are the daughters of original plaintiff no.1 and Late Gaya Singh. 9. After considering the pleadings and evidence of the parties, the learned Additional District Judge-III, Saran dismissed the title appeal and the cross appeal on contest without cost vide judgment and decree dated 19.09.1991 after arriving at the following findings:- (a) The evidence clearly proved that Gaya Singh could not have executed any deed of gift on 20.03.1972 because it had been established that he was physically and mentally incapable to make any legal instrument. (b) The evidence supports the contention of the plaintiffs that Gaya Singh had no affection for the defendants-appellants and so there was no occasion for executing any deed of gift in their favour. (c) There was no evidence on the part of the defendants-appellants to show that Gaya Singh had executed the deeds of gift (Ext.G series) out of his free will with healthy body and mind after knowing the implications of the contents of the transaction. (d) The examination of original plaintiff no.1 namely the widow of Gaya Singh fully proved that she was not a woman of low intellect or idiot. (e) No reason had been shown due to which Gaya Singh could part with his entire property giving it to his agnates ignoring his legally wedded wife and affectionate daughters. (f) The circumstances too prove that the impugned deeds of gift were obtained by fraud and are held to be illegal, void, inoperative and not binding upon the plaintiffs. 6 (g) The judgment of the trial court had elaborately dealt with each and every point including the sub points and there is no reason to interfere with the same. (h) There was no material on record to show the value of loss due to dispossession of the plaintiffs and hence it was not possible for the court to give a decision on mesne profit in favour of plaintiffs. 10. Against the aforesaid judgments and decree of the learned courts below the defendants-appellants filed the instant second appeal, which was admitted by this court on 07.09.1992 after framing the following substantial questions of law:- (i) Whether the appellate decree is nullity in view of the same having been passed against deceased Devanti Kuer, without substituting her legal representatives? (ii) Whether the judgments of the courts below are vitiated on account of misinterpretation of section 36 read with Rule 46 of the Indian Registration Act and consequent inference drawn by the court below? (iii) Whether the judgment of the appellate court is vitiated on account of non consideration of all the documentary and oral evidence led on behalf of the appellants, in particular exhibits A series, Ext.B, Ext.C series, Ext.E, Exts.H, I, J, K, L, M and N? (iv) Whether the judgments of the courts below are vitiated on account of considering and relying on amended plaint although the amendment was never incorporated within 14 days in accordance with Order 6 Rule 18 of the Code of Civil Procedure? 11. So far substantial question of law no.(i) is concerned, learned counsel for the present does not press the same at this stage of final hearing of the second appeal. Furthermore Most. Devanti Kuer, who was plaintiff no.1 in the title suit and was respondent no.1 in the title appeal had through out claimed that she had two daughters, namely Smt. Tapeshwari Devi and Smt. Bhageshwari Devi and her claim had been affirmed by both the learned courts below and hence her death during the pendency of the title appeal will not render the judgment and decree of the lower appellate court to be nullity due to non- substitution of her heirs because both her said heirs were already on record in the title appeal as respondents no.1 and 2. 12. So far substantial question of law no.(ii) is concerned, defendant no.1 deposing as DW.26 in the suit clearly admitted that the learned Sub-Registrar, Masrakh had sent notice (Ext.13) to the original plaintiff no.1 directing her to appear before him on a specific date for either admitting or denying the execution of the impugned deeds of gift 7 (Ext.G series), said to have been executed by her husband but admittedly she did not appear, hence the Sub-Registrar, Masrakh should have recorded her refusal to register the document under section 35 of the Registration Act, 1908 as soon as it was satisfied that the summons had been served by plaintiff no.1 according to law, but in the instant case the learned Sub-Registrar in spite of the aforesaid fact admitted the registration of the impugned deeds of gift in favour of defendant no.1, which was without jurisdiction and violative of the said provision of the Act as well as Rule 45 of the Registration Rules, 1937 and thus the learned courts below were quite justified in coming to the conclusion that the impugned deeds of gift were illegally admitted for registration by the Sub-Registrar, Masrakh. 13. So far substantial question of law no.(iii) is concerned, Ext.A series are rent receipts, Ext.B is the plaint of Partition Suit No.76 of 1959, Ext.C series are copies of written statement, Ext.D is the Field Book prepared by the Pleader Commissioner, Ext.E and Ext.F are the order sheets of Pleader Commissioner, Ext.N is the copy of order sheet of the partition suit, Ext.O is the decree in the partition suit, Ext.P is the map of the village concerned and Ext.Q is the petition filed in the civil suit confirming the compromise and after considering them the learned court of appeal below specifically found in paragraph-17 of its judgment that they were not relevant because they did not cast any light on the merit of the points raised in the appeal. Learned counsel for the appellants failed to substantiate as to how the said documents are relevant for the instant case. 14. Furthermore, Ext.H, Ext.I and Ext.J are the negatives, enlargements and report of the handwriting expert which were produced only to show that the impugned deeds of gift (Ext.G series) contain the L.T.Is. of Gaya Singh whereas Ext.K is entry in the sale register showing sale of stamp in favour of Gaya Singh, whereas Ext. L is the writing of the scribe on the impugned deeds of gift and Ext.M is the original Patta by Gaya Singh in favour of others but none of these documents show that either Gaya Singh or any of his heirs appeared before the Registrar to admit the said deeds or he was conscious and in full senses at the time when his L.T.Is. were taken on Ext.G series and hence the learned court of appeal below rightly came to the conclusion that these documents are of no help to the defendants and were merely to show that it was scribed by someone and contained L.T.I 8 and signature of someone but they could not throw any light on the main issue involved in the suit. The said findings are clearly there in paragraph-17 of the judgment of the learned court of appeal below and in addition thereto the learned lower appellate court had also considered the oral evidence adduced by the defendants while passing the impugned judgment and decree, hence the question raised by the appellants alleging non-consideration of the said evidence is absolutely false. 15. So far substantial question of law no.(iv) is concerned, the amendment in the plaint which was allowed by the learned court of appeal below was merely to bring on record the correct number and boundary of those plots which were described in the impugned deeds of gift (Ext.G series) which were already on record and both the parties had already led their evidence on those exhibits and hence by order dated 03.09.1991 the learned court of appeal below allowed the said amendment observing that after considering the detailed report of the Sharistedar and also after considering the fact that by the said amendment the respondents simply want to clarify those lands already described in the deeds of gift, the amendment clearly appears to be formal in nature and does not amount to a position which would change the very nature of the suit because after all it is only the properties mentioned in the deeds of gift (Ext.G series), which are subject matter of the suit. 16. In the said circumstances, there is no question at all of the judgment and decree of the learned court of appeal below being vitiated on the basis of amended plaint without the amendment being incorporated within the time prescribed. Furthermore, the learned court of appeal below considered the evidence both oral and documentary with regard to the respective claims of the parties and the materials which were already on record of the trial court. In the said circumstances, the plaintiffs’ failure to incorporate the said amendment in the plaint within the prescribed time could not legally vitiate the judgment and decree of the learned court of appeal below. 17. Considering the aforesaid facts and legal position in the case, this court finds that the appellants had failed to substantiate the questions of law raised by them and it is also found that the learned courts below have not committed any illegality while passing 9 the judgments and decree which are under challenge in the instant second appeal. Accordingly, this second appeal is dismissed on contest but there will be no order as to cost. Patna High Court, (S.N. Hussain, J.) Dated, the 25th March, 2009 N.A.F.R./harish