Bombay High Court
Shalik S/O Damdu Dhobale vs Sitaram S/O Damdu Dhobale And ... on 17 June, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.335 OF 2015
Shalik s/o Damdu Dhobale,
Aged about 56 years,
Occ: Cultivator, R/o Ward No.13,
Sindi (Rly), Tq. Seloo,
Dist. Wardha. ....... APPELLANT
...V E R S U S...
1] Sitaram s/o Damdu Dhobale,
Aged about 61 years,
Occ: Cultivator.
2] Dashrath s/o Damdu Dhobale,
Aged about 58 years,
Occ: Cultivator.
3] Suresh s/o Damdu Dhobale,
Aged about 54 years,
Occ: Cultivator.
All R/o Ward No.13, Sindi (Rly.),
Tq. Seloo, Dist. Wardha. ....... RESPONDENTS
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Shri M.R. Joharapurkar, Advocate for Appellant.
Shri N.S. Bhattad, Advocate for Respondents.
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CORAM: R.K. DESHPANDE, J.
th JUNE, 2016.
DATE: 17
ORAL JUDGMENT
1] In Regular Civil Suit No.9 of 2009, the trial Court passed a
decree for partition and separate possession of the agricultural lands
Sr. No.169-A and 169-B. The plaintiff as well as the defendants are held
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entitled to ¼th share each in suit property by way of succession and the
proceedings under Section 54 for effecting the partition by metes and
bounds are directed to be commenced by the Collector, Wardha.
The trial Court has rejected the claim of the plaintiff that the gift-deed
dated 12.05.1987 at Exhibit-92 executed by Damduji, the original owner
of the suit property, in favour of the defendants was null and void and
the decree of possession has also been passed in counter claim.
2]
The decision of the trial Court was the subject-matter of
Regular Civil Appeal No.259 of 2010 along with the cross-objection filed
by the original plaintiff. The lower Appellate Court vide its judgment
dated 05.03.2015 dismissed the Regular Civil Appeal No.259 of 2010
filed by the defendants and the cross-objection filed by the plaintiff has
been allowed. The Appellate Court has modified the decree by holding
that the plaintiff and the defendants have ¼th share each in a suit house
in addition to their share in the suit fields.
3] The defendants have preferred this second appeal.
Notice was issued in this matter and on the last occasion when the
matter was listed it was made clear that on the next occasion the matter
shall be disposed of finally on the following substantial question of law:
Whether the lower Appellate Court was right in reversing
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the decree passed by the trial Court granting a declaration
that the defendants established their ownership in respect of
the house property on the basis of the gift-deed dated
12.05.1987 at Exhibit-92 and passing a decree of possession
in respect thereof?
4] Gift-deed at Exhibit-92 is a registered document and was
executed by Damduji in respect of his self acquired property.
Any objection to his competency to execute this document at Exhibit-92
has to be rejected. The only ground on which the lower Appellate Court
has reversed the decree passed by the trial Court is that the gift-deed at
Exhibit-92 was shrouded by suspicious circumstances. The trial Court
recorded a finding that two attesting witnesses D.W.1 Shalik and D.W.4
Kishor have proved the gift-deed at Exhibit-92. Without reversing this
finding, the lower Appellate Court, considered the so called suspicious
circumstances. The test of suspicious circumstances available in
accepting a document of Will, cannot be applied to question the validity
of gift-deed. Once it is found that the document of gift is registered and
the signature of the donor on it, is proved, it cannot be held to be invalid
unless a case of fraud or misrepresentation is made out. The provisions
of Section 123 of the Transfer of Property Act, Section 68 of the Evidence
Act as compared with Section 63 of the Indian Succession Act, have to be
seen. The lower Appellate Court has committed an error of law in
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adopting such method. Apart from this, the learned counsel could not
point out any such circumstances creating doubt in acceptance of the
evidence of attesting witnesses on the registered gift-deed at Exhibit-92.
The lower Appellate Court could not have therefore, disturbed the
findings recorded by the trial Court rejecting the claim of the plaintiff in
respect of the house property and holding that the gift-deed at Exhibit-92
was suspicious and confers no title upon the defendants. The finding to
that effect as recorded by the lower Appellate Court cannot be sustained.
The substantial question of law is answered accordingly.
5] The theory of previous partition in respect of the agricultural
land on 16.05.1984 has been rejected by both the Courts below, which
does not give rise to any substantial question of law. In the result, this
appeal is allowed. The decree passed by the lower Appellate Court to the
extent it holds that the plaintiffs and the defendants shall have ¼th share
in the suit house, is hereby quashed and set aside and the decree passed
by the trial Court is restored. No costs.
JUDGE
NSN
