IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.437 of 1994 1(a) Tulara Kuer 1(b) Kalawati Devi 2. Bhabhuti Pandey 3. Butan Pandey all sons of late Ram Badan Pandey 4. Paras Pandey 5. Awadhesh Kumar Pandey Sons of Ram Nihor Pandey 6. Sanjay Pandey 7. Pappu Pandey Both sons of Paras Pandey 8. Gopal 9. Bablu both sons of Bhabuti Pandey 10. Subas 11. Rajesh 12. Birendra all sons of Butan Pandey 13 Lala Pandey 14. Lallan Pandey both sons of late Dharamraj Pandey 15. Santosh 16. Janardan both sons of Lala Pandey 17. Agust 18. Santan both sons of late Lallan Pandey All resident of Village Bharari khurd P.S. Chand Dist. Bhabua Plaintiffs - Respondents- Appellants Versus 1. Ram Dhari Pandey 2. Shivdhari Pandey both sons of Aadnath Pandey 3. Hosisla Pandey s/o Ram Dhari Pandey 4. Munna Pandey s/o Hosila Pandey 5. (a) Kamta Kuer w/o Jagdish Pandey (b)Munni Kumari D/o Jagdish Pandey 6. Vinod 7. Pramod both sons of Jagdish Pandey All resident of Village Bharari khurd P.S. Chand Dist. Bhabua Defendants – Appellants-Respondents ----------------------- For the appellants: Mr Arun Kumar Singh No. I, Advocate ------------------- 07/ 15.02.2010 Heard learned counsel for the appellants. 2. This second appeal has been filed by the plaintiffs - respondents-appellants challenging the judgment and decree of the learned court of appeal below. 3. The matter arises out of Title Suit no.142 of 1988 which was filed by the plaintiffs for declaration that the registered deed of gift dated - 2 - 26.03.1957 (exhibit I) with respect the suit property executed by Bishwanath Pandey in favour of Ramdhari Pandey and Shivdhari Pandey (defendant nos. 1 and 2) was illegal and void and for other ancillary reliefs. The said suit was decreed by the learned Munsif, Bhabua vide his judgment and decree dated 18.02.1993. 4. Against the aforesaid judgment and decree of the learned trial court, defendants filed Title Appeal no.18 of 1993 (03/1994) which was allowed on contest by the learned Additional District Judge III, Bhabua, vide his judgment and decree dated 31.08.1994 setting aside the judgment and decree of the trial court and rejecting the claim of the plaintiffs . Against the aforesaid judgment and decree of the learned court of below, the instant second appeal has been filed. 5. Learned counsel for the appellants vehemently challenges the aforesaid judgment and decree of the learned courts below on the ground, (i) that the learned court of below wrongly held that proving the gift was not necessary by attesting witnesses failing to appreciate that there was only one attesting witness to the deed of gift in question which was clearly against the provision of section 123 of the Transfer of Property Act, 1982; (ii) that the learned court of below while reversing the judgment and decree of the trial court did not consider the oral and documentary evidence of the plaintiffs; and (iii) that all the three sons of Kariman Pandey, namely, Adanath Pandey, Deonath Pandey and Bishwanath Pandey being joint, one of them namely, Bishwanath Pandey was not competent under the provision of Hindu Law to make a gift of the suit property without any partition. 6. Considering the arguments of the learned counsel for the - 3 - appellants as well as materials on record including the impugned judgments of the learned courts below, it is quite apparent that Kariman Pandey had left behind three sons, Adanath Pandey, Deonath Pandey and Bishwanath Pandey, out of whom Bishwanath Pandey died in the year 1973 as an issueless widower. However, about 16 years before his death, Bishwanath Pandey had executed registered deed of gift dated 26.03.1957(exhibit I) in favour of his nephew Ramdhari Pandey and Shivdhari Pandey both sons of Adanath Pandey with respect to the suit property. This deed of gift is under challenge in the instant appeal. 7. So far the first question raised by the appellants regarding section 123 of the Transfer of Property Act is concerned, it provides that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. In this connection, the learned court of appeal below has considered the matter in detail and has found that execution of the deed of gift by Bishwanath Pandey has been duly proved and the said donor having lived 16 years after the said gift never raised any objection to it although separate khatiyan with respect to the suit property was prepared in the names of the aforesaid donees (defendant nos.1 and 2) and rent receipts were regularly issued to them . It was also found that the revisional survey entry has to be deemed to be legally correct unless it is proved by the plaintiffs on whom there was heavy onus but they failed to discharge their aforesaid onus. 8. Furthermore, the said registered deed is of the year 1957 whereas the suit was filed in the year 1988 i.e. more than 31 years thereafter. In this - 4 - connection reference may be made to section 90 of the Indian Evidence Act which provides that 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 person by whom it purports to be executed and attested. In the instant case, the said document was produced by the defendants-donees themselves and was admittedly more than thirty years old and hence the learned court of appeal below was quite justified in assuming that it was a genuine document duly executed by donor. 9. So far the second question of non-consideration of evidence of the plaintiffs by the learned court of appeal below is concerned, it is quite apparent from the materials on record that no documentary evidence was produced by the plaintiffs to disprove the impugned gift deed (Exhibit 2) and hence the learned court of appeal below has rightly relied upon specific document filed by the defendants with respect to their title and possession over the suit premises. Apart from the said Exhibit 2 plaintiffs produced copies of khatian as Exhibit 1 series and copy of order passed in criminal case as Exhibit 3 only, but none of these documents were relevant and sufficient to prove their claim. So far oral evidence is concerned, witnesses of each side tried to support their respective claims, but such statements can not legally take away the right and title created by documents as produced by defendants namely Exhibit A to Exhibit J. - 5 - 10. So far the third question of jointness of three sons of Kariman Pandey is concerned, there was no material on behalf of the plaintiffs to show that Bishwanath Pandey jointly held the suit property with his brothers Adanath Pandey (predecessor of the defendants) and Deonath Pandey (predecessor of the plaintiffs) rather it was fully proved by materials on record that the said property exclusively belonged to Bishwanath Pandey. Furthermore, the deed of gift having been executed by Bishwanath Pandey in the year 1957 the said donor or any of his brothers never challenged the same during the life time of Bishwanath Pandey or even thereafter and the instant suit was filed after more than 31 years by some of the descendants of Deonath Pandey. As the said deed of gift was a registered document, legal presumption would be that everyone including the plaintiffs had due notice, knowledge and information about the same. 11. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgment and decree of the learned court of appeal below, nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. shahid (S.N.Hussain, J)