Sakhubai Wd/O Wasudeo Kongre vs Bapurao S/O Wasudeo Kongre
2001 Latest Caselaw 645 Bom

JUDGMENT

D.G. Deshpande, J.

1. Heard Mr. K.R. Lambat, Advocate for the respondent. Nobody is present for the appellant even though names of 4 Advocates appear on the memo of appeal.

2. This appeal is filed by the original plaintiff, she had filed a suit against her son before the Civil Judge, Junior Division, Wani for possession and permanent injunction of certain land. It was her case that her husband Wasudeo had gifted the said land to her under Registered Gift Deed dated 2-4-1975. That she was placed in possession and she cultivated the land from year 1975-76 to 1978-79. However, after the death of her husband, Bapurao dispossessed her forcibly and therefore she filed a suit.

3. The trial Court decreed the suit accepting her contention about the execution of valid Gift Deed in her favour by her husband and also her contention regarding possession. Bapurao preferred appeal before the District Judge, Yavatmal vide Appeal No. 15/1983 and the Appellate Court allowed his appeal on the ground that plaintiff/Sakhubai had not proved the execution and attestation of the Gift Deed, as required by law. It is against this judgment that the present second appeal has been filed.

4. At the time of this appeal the following substantial question of law was formulated by the Court :---

"Whether it is necessary for the plaintiff to prove the Gift Deed (Exhibit 23) as required by law, though the signature of the executant on that document is not disputed by the defendant?"

5. Counsel for the respondent contended that the Appellate Court has properly appreciated the evidence and has applied law and came to a proper conclusion that the plaintiff had failed to prove the execution of the Gift Deed. My attention was drawn by learned Counsel for the respondent to the pleadings of the parties before the trial Court. i.e. the plaint and the written statement and also para 10 of the judgment of the Appellate Court. However, inspite of his pursuation I am unable to agree with the submission that the plaintiff had failed to prove the execution of the Gift Deed. I am in total disagreement with the finding of the Lower Appellate Court in that regard.

6. It is clear from the plaint that the plaintiff Sakhubai filed her suit on the basis of the registered Gift Deed. She has asserted in her plaint that her husband gifted the suit field to her under Registered Gift Deed dated 2-4-1975 and that the defendant assented to the said Gift Deed, this is alleged in para 2 of the plaint and as against this original defendant in his written statement made the following assertion :

"It is denied that Wasudeo Kongre father of the defendant has gifted property validly to the plaintiff. Field Survey No. 36/2 ........... has not been validly gifted by the alleged Gift Deed dated 2-4-75."

Even in subsequent paragraphs of the written statement the stand taken by the defendant is that there is no valid Gift Deed by Wasudeo in favour of Sakhubai. A close scrutiny of the written statement shows that no where in the written statement the defendant denied the execution of the Gift Deed by Wasudeo in favour of Sakhubai, Obviously, it is because of absence of pleadings to this effect or absence of denial of execution by defendant that the trial Court had not framed any issue placing burden of proof upon the plaintiff regarding execution of the Gift Deed in her favour by her husband.

7. A civil suit has to proceed on the basis of the pleadings and when therefore the defendant even though it was open to him to resist the claim of the plaintiff on all the available grounds of attack or challenge, chose not to deny the execution of a Gift Deed by Wasudeo in favour of plaintiff. A reference can be made to Order VI, VII & VIII of Civil Procedure Code which is about plaint and written statement respectively. Rule 9 of Order VI requires the party that, wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material. The plaintiff in the instant case was concerned with the Gift Deed. She was solely relying on the Gift Deed for the purpose of proving her claim. She has alleged in the plaint that her husband has executed the Gift Deed in her favour, that it was registered and that the defendant has consented to the said gift. Therefore, so far as the pleadings in the plaint are concerned, the plaintiff has given necessary and sufficient particulars. As against this, if the provisions of Order VIII relating to written statement are considered it requires under Rules 3, 4 and 5 that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth. Rule 4 of Order VIII requires that where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Rule 5 of Order VIII lays down that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleadings of the defendant, shall be taken to be admitted. So far as a gift is concerned, law requires that it has to be attested and its attention has to be proved properly by examining at least one attesting witness in Court. Admittedly, written statement in this case has been filed by the defendant with the assistance of the Advocate. However, there is no denial nor implied denial of the execution of the Gift Deed by father i.e. the husband of Sakhubai. What defendant has alleged is that the Gift Deed is not valid. Challenging the validity of the Gift Deed in my opinion does not include a challenge to the execution of the gift deed and its valid attestation. A gift deed may be invalid for many reasons and since the execution and attestation of the Gift Deed are regular requirement it was open to the defendant to challenge the execution specifically in the written statement. Admittedly, there is not a word in the written statement challenging or denying the execution of the Gift Deed by deceased Wasudeo and the only challenge is to the validly of the Gift Deed.

8. Therefore, the lower Appellate Court committed grave error in interpreting those pleadings as denial of execution. In fact as it appears that the defendant did not deny the execution of the Gift Deed by the father because defendant knew that he was aware that his father alone and none else has signed and executed the Gift Deed. This is clear from the cross-examination as found by the lower Court that the Gift Deed Exhibit 23 bears the signature of father of defendant.

9. Therefore, this is in fact a case where firstly defendant did not challenged the execution of the Gift Deed and secondly in the cross examination he admitted that the Gift Deed is signed by his father i.e. executed by his father. In these circumstances it was totally incorrect on the part of the appellate to upset the findings of the trial Court. Therefore, the substantial question of law that is framed by this Court has to be answered as follows :---

"It is not necessary for the plaintiff to prove the Gift Deed i.e. proving the execution of the Gift Deed when signature of the executant is not disputed by the defendant, but it is admitted by the defendant and when the defendant does not challenge the execution of the same in written statement."

For all these reasons the order of the Appellate Court requires to be set aside, the appeal is required to be allowed, therefore I pass the following order :

Appeal is allowed. Judgment and Decree of the Appellate Court is set aside. The decree granted by the trial Court is confirmed. Since, however, there is nobody present for the appellant, there will be no order as to cost.