Nadhu Gareri vs Firangi Gareri
2022 Latest Caselaw 62 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     S.A. No. 16 of 1989 (R)

 1. Nadhu Gareri
 2. Jagu Gareri
 3. Smt.Jhumiya Devi                   ..... .....             Appellants
                                      Versus
 1. Firangi Gareri
 2. Motiya Gareri
 3(a). Laksman Gareri
 3(c). Newri Gareri
 3(b)(i). Ajay Gareri
 3(b)(ii). Sanjay Gareri
 3(b)(iii). Fulwa Garerin
 3(b)(iv). Miss Tetri Garerin
 3(b)(v). Miss Gudia Garerin             ....     ....         Respondents

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants                        : Mr. Rajiv Kumar, Advocate
For the Respondents                       : Mr. Manjul Prasad, Advocate

C.A.V. ON 21.12.2021                     PRONOUNCED ON 06.01.2022

1. The appellant/plaintiff brought suit for declaration that Bazidawa Deed No. 991 dated 16.02.2061 executed by Chhatu Gareri in favour of the Nanhak Gareri was a fraudulent and forged document and as such it did not confer any right title and interest upon them and for declaration that the suit land was in possession of the plaintiffs are their raiyati land.

2. The suit was dismissed by the trial Court, and the instant appeal has been preferred by the appellants/plaintiffs against the Judgment of affirmation in Title Appeal No. 40/1984 of the judgment and decree pass by the trial court.

3. The Genealogy of the parties as given in para 2 of the plaint is not in dispute. Doman Gareri the recorded tenant of Khata No. 59 situated at Village-Kundri consisting of several plots were jointly recorded in possession of Doman Gareri and his two brothers Bharosa and Budhu Gareri as they had taken together one share out of four shares in Khata No.59. Bharosa Gareri and Budhu Gareri died issueless and Doman Gareri became the sole tenant of Khata No.59 and after his death, his sons Sewak Gareri & Chhutu Gareri got

½ share in the said plots. There was another Khata No-2 of Village Alaula in which Doman, Bharosa and Budhu Gareri together had 1/6th share in the land of this Khata comprising of Plot Nos. 276,291 and 291. After the death of Bharosa and Budhu Gareri, Doman became the sole tenant in respect of 1/6 share of this Khata, after his death Sewak Gareri and his sons became the tenant in respect of 1/12th share of this Khata. Consequently, on death of Doman Gareri the entire property of Khata No.59 of village Kundri and Khata No.2 of Village-Alaula were jointly succeeded by his son Sewak Gareri and Chhathu Gareri and their sons. In this way branch of Sewak Gareri got half share and branch of Chattu got half share out of the total share of Doman. Properties in the separate possession were separately mutated and the demand was opened in the name of Chhathu Gareri, the original Plaintiff No.1 and they came in possession over the entire suit property. Further case of the plaintiffs is that the defendants got executed a deed of Bazidawa No.991 dated 16.02.1961 by Chhathu Gareri, the original plaintiff no.1, in favour of Nanhak Gareri in respect to entire suit property of Khata No.2 of Village- Alaula and Khata No.52 of Village Kundri. It is asserted that the deed of Bazidawa was forged document because Chhathu Gareri was blind and the defendants misrepresented him to give his LTI on the paper meant for getting loan from the government and alternative plea of forgery by impersonating Chhathu Gareri has also been taken that the defendants has committed forgery and thereby created a forged document of Bazidawa.

4. The case of the Defendant is that survey entries about the name of Doman Gareri and his two brothers in Khata No. 59 of village Kundri or in Khata No. 2 of Village Alaula were incorrect. The two brothers lived jointly in Village Kundri and Alaula shortly before cadastral survey and had acquired raiyati lands in Village Kundari and Alaula which came to be recorded under Khata No.59 of Village Kundari and Khata No.2 of Village Alaula. Doman Gareri and his two brothers where disgusted with the living condition and wanted to move out of the village, therefore, they decided to sell away all land and houses and to purchase sheep with the price thereof and to take the profession of their caste that is of rearing sheep. But the wife of Doman Gareri viz Sanicheria Garerin did not like to move out from the village with them. So, they sold 3/4th of their land to one Jatadhari Shukla and gave remaining one fourth with the house on Plot No. 9764 Khata No. 59 of Village Kundri to

his wife Sanicharian Garerin and Mewa Gareri. This took place before survey and the survey authorities without local inspection continued to record 1/4th share left after 3/4th sold to Jatadhari Shukla in the name of Doman Gareri and his two brothers. Sanicharia Garerin subsequently remarried a second husband namely Ramdin Gareri of the same village through whom she gave birth to one daughter Dhanesari Garerin who was married to defendant no. 1 Nankhu Gareri. It is further case of the defendant that he became the Ghar Jamai. When Ramdin died without a son, Sanichari Garerin sold the entire land of her second husband and his brothers to Defendant No.1 vide registered sale deed number 3001 dated 15.8.1944. Ramdin Gareri during his lifetime had already sold 0.42 and half acre of land to Dhaneswari wife of Defendant No.1 vide registered Sale Deed No. 284 dated 29.1.19 41. The right of Doman Gareri and his brothers was lost by adverse possession to Sanicharia Garerin, Defendant Nos.1 and 2. As a matter of fact the record of right, however, incorrectly stood in the name of Doman and his brothers. Taking undue advantage of this incorrect entry the Plaintiff No.1 got fraudulently the demand opened in his name at the instigation of the enemies of the defendants and when the defendants came to know of it and protested on the intervention of caste men and respectable people of the locality, Chattu the plaintiff number one became ready to execute a deed of release (Bajidawa) to avoid future litigation and it was under this circumstance that the document was executed by the number 991 dated 16.2.19 61. After the execution of the deed defendants continued to pay rent for all the lands and went on being granted consistently on payment of rent by the defendants. The averments of fraud and forgery in getting the deed of queries executed has been denied.

5. Both the Defendants filed their separate written statement and contested the suit. In the separate written statement defendant no.1 on geneaology it is contended that Ganesh Gareri, father of Doman Gareri had one brother, Buniad Gareri and that Defendant No.2 Mewa Gareri was the son of Buniad Gareri. The entries in C.S. Khatian of joint possession of Doman Gareri and Bharosa Gareri and Buddhu Gareri over the disputed plots was incorrect. It has however been admitted that Bharosa and Budhu died issueless and had left the village. It is pleaded that Doman Gareri had transferred the entire property to his wife Sanichri and to her close relative Mewa Gareri, defendant no.2 and thereafter he had left the village before the cadastral survey. Sanichri

and Mewa were in joint possession of entire suit property of Khata No.2 of village Alaula and Khata No.59 of village Kundri. Soon thereafter Sanichri Gareri remarried with one Ramdin Gareri. She gave the entire suit property inherited from her husband Doman Gareri to her Gharjamai Nanhak Gareri. Defendant No.2 in league with plaintiffs, had got some documents executed by the plaintiffs and sons of Sewak Gareri in respect of the suit plot but such act shall not bind Defendant no.1. Plea of adverse possession has also been taken by the defendants. The main plank of defence is Chhatu Gareri had genuinely executed the deed of Bazidawa in favour of these defendants because the plaintiffs were never in possession of the suit property.

Defendant No. 2 has also admitted that Doman Gareri became the sole owner of the property after the death of Bharosa Gareri and Budhu Gareri not only of lands of khata No.59 but also of Khatat No.85. It is however pleaded that sons of Doman namely Sewak and Chattu Gareri did not inherit the property since they had not taken birth at the time of their father's death. Doman had parted with their share leaving nothing to be inherited by their sons and grandsons.

6. On the basis of pleadings of the parties the trial court framed the following issues:-

1. Is the suit as framed in maintainable?

2. Have the plaintiffs cause of action for suit?

3. Is Bazidawa No.991 dated 16.02.61 a forged document?

4. Are plaintiffs entitled to declaration that suit land are in their raiyati land and they are in possession of the same?

5. Is the suit barred by law of limitation?

6. To what other relief or reliefs are the plaintiffs entitle to?

7. The trial court recorded a finding of fact that Bazidawa deed was not a forged document and decided this issue in favour of the Defendant. Relying on AIR 1967 SC 1395 it was held that Bazidawa deed could be employed as a form of conveyance by person having interest in the property to one having no interest in the property. It has been stated in para 15 of the Judgment that there is no documentary evidence of possession on behalf of the plaintiff worth the name. On the other hand the defendants have filed Ext B as evidence that they had dealt with the properties which is the subject matter of the suit. The trial

Court refused to accept Ext1 which is a rent receipt dated 19.8.80, Ext 2 series the Chaukidari receipts, Ext D/2 certified copy of sale deed by Sewak Gareri in favour of Mewa dated 18.9.48.

8. On the basis of Ext. C by which 2 ¼ decimal of land was sold on by Nankhu and Mewa to the sons of Sewak Mahto, it was held that it was an evidence to the effect that defendants had been dealing with the property independently after the execution of Bazidawa. On the question of whether Chattu had a right to execute such a Bajidawa with respect to ancestral property in which the plaintiffs had right ,it was held that being the Karta he had right to execute the deed.

9. Regarding possession the trial court held that the plaintiffs have not been able to proof their possession of the entire suit land further on issue no.5 it was held that the suit was barred by limitation since Bazidawa was executed on 16.02.61 but the suit has been brought in the year 1980 and the plaintiffs came to know in the year 1980.

10. The learned appellate court held that the deed of Bazidawa was validly executed but did not accept it, in para 17 of the Judgment, as a deed of transfer of any property at any rate and therefore the question whether the karta the original Plaintiff no.1had the right to execute the deed was not in keeping with the correct factual position of the case. It was held that Deed of Bazidawa (Ext C and D) will operate as admission under Section 18 of the Evidence Act and will be binding on the Plaintiff. On the point of possession apart from the oral evidence, the documentary evidence Ext A to A/7 were accepted. Ext D, D/1 and D/2 were executed by Sewak Gareri in favour Mewa Gareri in respect of property in his share. The suit was also held to be barred by limitation.

11. The appeal has been admitted on the following substantial question of law-

"When the property was admittedly ancestral property whether the court below was correct in holding that Chhathu was competent to transfer whole of the property including the interest of sons"

Later, during the hearing further additional substantial question of law was framed -

Whether by Bazidawa Deed No. 991 dated 16.02.1961 executed by Chattu Gareri transferred valid right, title and interest to Nanhak Gareri?

12. The Judgment and decree passed in appeal has been assailed firstly on the ground that there is no concurrent finding of fact on the material question in issue. While the trial Court has returned a finding of fact that the impugned deed was transfer, the Court of appeal has held that it was not transfer, but an admission in terms of Section 18 of the Evidence Act, in which the question whether the executor of the deed had a right to transfer or not, does not arise. It is argued that if it was a transfer, then there was a requirement of the deed to be witnessed by at least one attesting witnesses which has not been complied to prove the deed.

Secondly, there is no documentary evidence that impugned deed was ever acted upon as the land was not mutated on its basis and the demand still runs in the name of plaintiffs.

Thirdly, the story of abandonment and giving ¼th of the land by Doman Gereri and his brothers to his wife Sanichari Garerin and Mewa Gareri is as stated in para-9 of the W.S. of defendant No. 1 is falsified by exhibits D E/1 and D/2 which is registered sale deed executed by Sewak Gareri in favour of Mewa Gareri for different plots of land on 17.02.44, 18.09.48 and 24.09.48. If the land had been given by Doman and his brother to given, than there was no occasion for transfer by sale of these plots of land.

Fourthly, the suit land being ancestral property, the same could not have been transferred by Chattu Gareri so as to divest his sons and grandsons of their subsisting right in the ancestral property.

Fifthly, Bazidawa deed is different from release and cannot be treated as an instrument of transfer in favour of person who had no antecedent right.

Sixthly, there is no documentary evidence of possession and finding on it recorded by the Court below is perverse. The trial Court in para 20 states that Ext A,A/1 are rent receipts obtained much prior to the suit and A/2 and A/3 are not related to the suit property, yet it has been held that Defendants have been able to prove their possession by documentary evidence.

Lastly, the deed is inchoate in as much many of the plots it seeks to transfer do not correspond to the Khata number stated in the deed of Bazidawa.

13. It is argued on behalf of the respondents that Bazidawa deed was in effect a deed of release and in view of the authority relied upon by the trial

court as well as the appellate Court, it could very well transfer a valid title. There is a concurrent finding of fact regarding the validity of the deed and there is ample evidence on record to demonstrate that defendants were already in possession before the execution of the Deed which is an acknowledgment of the existing state of affair. Lastly it is argued that in view of concurrent finding of fact, there is no substantial question of law so as to disturb the findings recorded by the Court below.

14. On the basis of the pleading the admitted position it is evident that the lands appertaining to Khata no.59 of village Kundri and Khata no.2 of village Alaula were recorded in the name of Doman Gareri and his two brothers in the cadastral survey. The plea of the Defendant no.1 that entries were wrong is of no avail, in view of the presumption in favour of entries in the record of right under Section 84 of the CNT Act, unless rebutted. It is also not in dispute that the brothers of Doman died issueless and after which the entire property devolved on Doman Gareri. Defendants claim title based on the plea that Doman had transferred the land to his wife Sanicharian and Mewa Gareri who got into the possession of the property. After the death of Doman, his wife Sanicharian Gareri entered into second marriage with Ramdin Gareri from whom she had son Nanhak Gareri (Defendant no.1) in whose and Mewa Gareri favour the registered deed was executed. These facts are not in dispute.

15. Although it is contended that Doman Gareri transferred the suit land to Sanicharian Gareri but it is not stated the instrument by which the conveyance of title was effected or when it was effected, so as to divest the inheritance of title by his sons Chattu and Sewak Gareri. In any case transfer of title is to be as per Section 54 of the Transfer of Property Act. Had there been such a transfer there was no occasion for transfer of land by Sewak to Mewa Gareri (Ext. 4).

16. The claim of title advanced on behalf of the Defendants finally boils down to the registered deed of Bazidawa Ext-3 executed by Chattu Gareri in favour of Nanhak Gareri and Mewa Gareri with respect to different plots of Khata no.59 of village Kundri and Khata no.2 of village Alaula. The pleading of Plaintiff that it was vitiated by fraud is unsupported by evidence and being executed 30 years ago there is a presumption in its favour of due execution. I therefore find that both the learned Courts below have rightly held this document to have been duly executed.

17. Authenticity of a document which has been duly executed, and the legal effect of it are two entirely different things. Mere fact that a document has been duly executed does not mean that it will convey a title. The conveyance of title depends on the title of the transferor, the nature of instrument being employed to transfer the title and also in some cases the person to whom the title is sought to be transferred.

18. In the present case the instrument of transfer is a deed of relinquishment which is foundational document on which the defendants claim title. What do we understand by this instrument is the fundamental question that need to be answered? Is it a deed of conveyance plain and simple without consideration like gift? If yes, then how is it different from gift? Or is it transfer of title by survivorship on a co-owner or co-sharer and the title will not transfer to a complete stranger?

19. Relinquishment deed is a legal document/instrument where a legal heir gives up or releases his legal rights in an inherited parental property for another legal heir. Deed of relinquishment do not create or transfer title to one who is a complete stranger, but can only transfer it when there is a subsisting title in favour of the transferor and transferee. The effect of this instrument is the enlargement of estate of a party who had antecedent right title or interest. It is different from gift or sale where there is no requirement of subsisting right or title in the transferee. There have been cases where a departure has been permitted and considering the context and content of the deed of relinquishment it has been held that it can validly transfer title in favour of one who is not the holder of a limited estate or a person having no interest in the property. Gift and relinquishment are not synonymous expressions in legal parlance. While the former can be made in favour of any one, but the later can be normally made only in favour of those who have antecedent right.

Thus in Kuppuswami Chettiar v. A.S.P.A. Arumugam Chettiar, (1967) 1 SCR 275: AIR 1967 SC 1395 it has been held that:-

" Now, it cannot be disputed that a release can be usefully employed as a form of conveyance by a person having some right or interest to another having a limited estate, e.g., by a remainderman to a tenant for life, and the release then operates as an enlargement of the limited estate. But in this case, we are not concerned with a release in favour of the holder of a limited estate.

Here, the deed was in favour of a person having no interest in the property, and it could not take effect as an enlargement of an existing estate. It was intended to be and was a transfer of ownership. A deed called a deed of release can, by using words of sufficient amplitude, transfer title to one having no title before the transfer. The cases relied upon by counsel are not authorities for the proposition that the operative words of a release deed must be ignored. In S.P. Chinnathambiar case [(1953) 2 MLJ 387, 391] , the document could not operate as a transfer, because a transfer was hit by Section 34 of the Court of Wards Act, and viewed as a renunciation of a claim, it could not vest title in the release. In Hutchi Gowder v. Bheema Gowder [(1959) 2 MLJ 324, 337] the question was whether a covenant of further assurance should be enforced by directing the defendant to execute a release deed or a deed of conveyance, and the Court held that the defendant should execute a deed of conveyance. These decisions do not lay down that a deed styled a deed of release cannot, in law, transfer title to one who before the transfer had no interest in the property."

20. The true legal proposition emerges is that that in case of deed of release there does not exist an absolute bar on transfer of title to one who before the transfer had no interest in the property. What is important is the intention of the instrument and not the nomenclature of it. The principle enunciated above is in a way departure from the earlier authorities discussed and can be fully appreciated in the peculiar facts and circumstance of that case. A brief reference to the facts becomes necessary as the ratio decidendi is predicated on the facts of any case. The appellant in that case in order to take away the suit property out of challenge, first executed a deed of release in favour of the respondents releasing the suit properties including certain outstanding due from third parties in a pending suit. After the release of the property from the suit, when the appellant as a defendant was impleaded in the suit for the recovery of the debt, the appellant filed a written statement alleging that the release deed was invalid and suit was not maintainable. It was against this backdrop where the appellant was after obtaining an benefit from the release deed was trying to resile from the release deed, the Supreme Court held in S.P. Chinnathambiar case [(1953) 2 MLJ 387, 391] and Hutchi Gowder v. Bheema Gowder [(1959) 2 MLJ 324, 337] do not lay down a deed styled a deed of release cannot, in law, transfer title to one who before the

transfer had no interest in the property. In the fact and circumstance of the case it was therefore laid down that there was no legal bar to such a transfer.

21. Authorities relied upon do not mean that release deed can be made in favour of a rank outsider or a person with no interest at all, but a person who has a semblance of a bonafide claim, but no clear title.

A deed is not intended to confer title on a stranger without any semblance of bonafide title will be apparent from Thayyil Mammo v. Kottiath Ramunni, AIR 1966 SC 337

10. In Mussumat Oodey Koowur v. Mussumat Ladoo [(1870) 13 MIA 585] the Privy Council held that a petition admitting that the petitioner had no claim to a certain estate did not operate as a conveyance of her subsequently acquired title, the petition having been filed in a pending suit by a petitioner having no present interest in the estate with a view to avoid an objection as to want of parties, and without receiving any consideration for the transfer of her future title. This case is an authority for the proposition that a bare admission in a document that the executant has no interest in a property, made without any consideration cannot pass his subsequently acquired title to the property. In Jadu Nath Poddar v. Rup Led Poddar [(1906) ILR 33 Cal 967, 983-84], Dharam Chand v. Mauji Sahu [(1912) 16 CLJ 436] , Marak Lall v. Magoo Lall [(1915) 22 CLJ 380] , Mathuramohan Saha v. Ram Kumar Saha [(1915) 20 CW No. 370, 378] , Mookerjee, J. held that a deed of release or relinquishment could not operate as a conveyance and could at most be taken as an admission that the executant had no interest in the property. But those cases do not lay down a proposition of universal application that a deed styled a deed of release cannot operate as a conveyance. In Hemendra Nath Mukherji v. Kumar Nath Roy [12 CW No. 478] by a registered deed called a deed of disclaimer the executants relinquished all their right, title and interest and claim in the properties in favour of the releasee upon the condition that the releasee would discharge certain debts and the executants would be under no liability to pay those debts. Though the deed was stamped only as a release and not with ad valorem stamp, Maclean, C.J. held that on its true construction it was a transfer. We think that a registered instrument styled a release deed releasing the right, title and interest of the executant in any property in

favour of the releasee for valuable consideration may operate as a conveyance, if the document clearly discloses an intention to effect a transfer. In the instant case, Ex. B-2 clearly discloses an intention to transfer all the rights of Baithan to Defendants 1 to 5, and though the word "surrender" is used and though the deed is styled a release deed, it operates as an assignment.

22. The fact of the present case is very different from the authority relied upon by the learned lower Court in their Judgment. For better appreciation of the relationship the genealogical table is referred to below:

Doman Gareri ________________________________________________ ↨ ↨ ↨ Sewak Gareri Sancharin Gareri Chhathu Gareri (Son) (Wife of Doman) (Son) ↨ Ramdin Gareri (Second Husband) ↨ Nanhak Gareri (D1) (Son)

Here the parties in whose favour the Bazidawa has been executed is neither the co-owner nor co-sharer of the property, they are not related so as to have any antecedent right or had a limited estate, and the deed is without any consideration. In the recital of the deed, it has been claimed that they are in possession since before the survey to the contrary in the written statement it has been contended on behalf of the Defendant No.1 that the entries have been wrongly made in the record of right. The plots mentioned in the deed do not match with those in the record of right. The learned Court below erred in applying the ruling in AIR 1967 SC 1395 which was based on entirely different fact and circumstance of the case. The deed is inchoate in the sense that the plots do not correspond with the Khata number of the deed. There is no evidence that it has been acted upon.

Parties are illiterate and the executants namely Chattu Gareri who had

put LTI on the deed himself instituted the suit for declaring that the deed be declared to be null and void.

23. The Court below committed an error of law. Under the aforesaid facts and circumstances and for the reasons stated above, I am of the considered view that Bazidawa Deed No. 991 executed on 16.2.19 61 in effect did not transfer any title to the defendants. The Judgment and decree passed by both the lower Courts is set aside and the plaintiff's suit for declaration that the deed of Bazidawa was in operation null and void is decreed. There shall be a decree declaring that the Bazidawa no. 991 deed dated 16.2.19 61 Ext G, did not divest the Plaintiffs (Now LR) of their interest or convey any right title or interest in the Defendants with respect to the subject-matter of the deed.

The appeal is allowed as at above.

Consequently, I.A. No. 8136 of 2019 stands disposed of.

(GAUTAM KUMAR CHOUDHARY, J.)

Jharkhand High Court, Ranchi Dated the 6th January, 2022 AFR / AKT