Jharkhand High Court
Urmila Devi vs Jagmaniya Devi on 7 October, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2025:JHHC:30890
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 542 of 2018
1. Urmila Devi, w/o Bansi Yadav aged about 45 years Resident of
village - Jhunka, P.O. - Birbal, P.S. - Dhurki, District -
Garhwa
2. Bansi Yadav, son of Hulas Yadav aged about 48 years Resident
of village - Jhunka, P.O. - Birbal, P.S. - Dhurki, District -
Garhwa
... ... Defendants/Appellants/Appellants
Versus
1. Jagmaniya Devi, W/o Late Ugan Mahto,
2. Ram Tresh Yadav,
3. Manesh Yadav,
4. Mundrika Yadav,
5. Jay Prakash Yadav,
6. Tuleshwar Yadav
7. Madan Yadav
8. Indeshwar Yadav
All 2 to 8 are sons of late Ugan Mahto and R/o village- Jhunka,
P.O. - Birbal, P.S. - Dhurki, District Garhwa
9. Tarwa Devi w/o Lalit Yadav, D/o late Ugan Mahto, R/o vill-
sonpurwa, P.O. Ranka, P.S. Ranka, District Garhwa
... ... Plaintiffs/Respondents/Respondents
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellants : Mr. Prabhash Kumar, Advocate
: Mr. Ganesh Ram, Advocate
For the Respondents : Mr. Sanjay Kr. Tiwari, Advocate
: Mr. Ram Kinkar, Advocate
---
10/07.10.2025 This second appeal has been filed against the judgement dated
23.08.2018 (decree dated 05.09.2018) passed in Civil Appeal No.21 of
2012 by the learned District Judge VI, Garhwa (only to the extent of
findings of the learned 1st appellate court wherein it has been held that
the deed of gift is not enforceable). The 1st appellate court partly
allowed the appeal and set aside the judgment dated 31.07.2012
(decree dated 14.08.2012) passed in Title Suit No.49 of 1999 by the
learned Civil Judge (Senior Division IV) Garhwa.
2. The defendants are the appellants before this Court.
3. The suit was filed by the plaintiff Ugan Mahto against Urmila
Devi and another defendant seeking a declaration of their right, title
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with respect to the suit property described in Schedule A. The suit was
filed for the following reliefs:
"i) It be adjudicated and declared upon that the plaintiff has
been coming in possession of the suit land along with house
and trees standing thereon mentioned in Schedule 'A' of this
plaint as exclusive owner thereof having perfect right and title
after the death of Jagarnath Mahto as his/heir and successor
and the deed no.2285 dated 6.10.99 executed in favour of the
defendant no.01 is forged fabricated and void ab initio and
result of fraud played by the defendants and defendant no.01
did not acquire any right, title or possession over any inch of
suit land for any moment by virtue of the same.
ii) The defendant be restrained from disturbing peaceful
cultivating possession of the plaintiff over suit lands by issuing
injunction against them.
iii) Full cost of the suit be awarded to the plaintiff.
iv) Any other relief or reliefs be awarded to the plaintiff for which
he may be deemed to be entitled."
4. Admittedly both parties, plaintiff as well as defendants claimed
themselves as heirs of common ancestors and the genealogy as given
in the plaint and written statement has been accepted by both the
parties. The case of the plaintiff as stated in the plaint is that Jagarnath
Mahto died on 04.05.1999 and subsequent to that plaintiff Ugan
Mahto came over the possession of the property of Jagarnath Mahto
and the registered gift deed dated 10.06.1999 executed by Jagarnath
Mahto was forged and fabricated as it was never executed by
Jagarnath Mahto. On the other hand, defendants claimed that
Jagarnath died on 04.08.1999 and relied on the registered gift deed
dated 10.06.1999 and also relied on another document, the Will.
5. The learned trial court framed the following issues for
consideration:
"I. Is the suit as framed maintainable?
II. Has the plaintiff any valid cause of action for the suit?
III. Is the suit barred by the law of limitation, estoppel waiver and
acquiescence?
IV. Is the suit barred by the section 34 of the Specific Relief Act?
V. Is the suit properly valued?
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VI. Whether there was a partition by metes and bounds between
Ugan Mahto and Sukan Mahto, if there was re-union of the family
between them?
VII. Whether Jagarnath Mahto was separate from Ugan Mahto
and Sukan and transferred his properties through a deed of gift
and that deed of gift is valid?
VIII. Whether the defendant no.1 was in the family of Jagarnath
since childhood as his daughter and served Jagarnath during his
old age and defendant no.2 as his Ghar Damad exercising the
exclusive and absolute right, title and possession over his entire
properties?
IX. Is the plaintiff entitled to the relief claimed?
X. To what relief or reliefs the plaintiffs the plaintiffs is entitled?"
6. Both parties adduced oral and documentary evidence. The
learned trial court inter alia evaluated the materials on record,
particularly with respect to the claim of the plaintiff that Jagarnath
Mahto died on 04.05.1999 and the rival claim of the defendants that
Jagarnath Mahto died on 04.08.1999. The court recorded that
admittedly the original copy of the gift deed was not filed by the
defendants and no convincing reason for not filing the original copy of
the gift deed has been offered from the side of the defendants. The
learned trial court recorded that since both parties were claiming the
property, so the onus of proof shifts upon each other.
7. The court further recorded that from the statement of the entire
witnesses as produced on behalf of both parties, the date of death of
Jagarnath Mahto, has not been substantiated, rather even some of the
witnesses of defendants have stated different dates. The court also
observed that Section 68 of the Indian Evidence Act provides that if a
document is required by law to be attested, the same shall not be used
as evidence until at least one of the attesting witnesses has been called
for the purpose of proving his execution. The court observed that since
the gift deed is very important document, so mandate of law requires
to be complied by parties concerned.
8. With respect to another document said to have been executed
by Jagarnath Mahto i.e. the Will Exhibits D and D/1, the court
observed that it is well settled that on the basis of un-probated Will, no
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right, title or interest can be conveyed to anyone. The issue nos.IV,
VII and VIII were partly decided in favour of the plaintiff. The court
held that the gift and Will were not enforceable and held that so far as
right, title and possession of plaintiff and defendants are concerned,
the property of Jagarnath Mahto will devolve in favour of the legal
heirs in proportion to their respective shares and as such the suit was
partly decreed in favour of the plaintiff.
9. The learned 1st appellate court framed the following points for
determination, which are quoted as under:
"I. Whether issue nos.IV, VII and VIII were rightly and properly
decided by the learned lower court?
II. Whether the reunion between the plaintiff Ugan Mahto and
Jagarnath Mahto, as alleged, was valid?
III. Whether issues nos.I, II, III and V were rightly decided by the
learned lower court?"
10. The learned 1st appellate court also considered the materials on
record, both oral and documentary and recorded that the original copy
of the deed of gift was filed from the defendant's side before the
appellate court and marked Exhibit I. The court observed that no
convincing reason for non-filing of the original deed of gift has been
offered from the side of the defendants. It was asserted that the person,
who asserts some point, the onus lies upon him to prove it. The
learned 1st appellate court recorded that the plaintiff was denying the
execution of the gift deed and they asserted that the gift deed was
obtained through fraud and the original gift deed was never produced
before the learned trial court. The learned court further recorded that
none of the attesting witnesses to the gift deed were produced before
the court to prove it. The court also recorded that even its due
execution was not proved by calling any person from the office of the
Registrar, which was required to be done in view of the fact that the
date of death was disputed. The court held that the defendants were
not able to establish the execution of the deed of gift through cogent
evidence and in view of the disputed date of death of Jagarnath Mahto,
it was all the more necessary. The learned court held that the
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defendants failed to prove that the gift deed was duly executed by
Jagarnath Mahto.
11. The learned court partly allowed the appeal by holding as
under:
"21. In view of the facts ..........
It is ordered that the suit so far as declaration regarding
gift deed is concerned, it is held to be non enforceable and as
regards the Will no order is passed as its probate case is
pending. The order of Probate Court will prevail regarding
impugned Will.
The claim of the plaintiff/respondent was not found
sustainable on the basis of reunion and accordingly in this
respect claim of plaintiff stands set aside. The rest of the relief
granted by the learned lower court was erroneous and
accordingly stands set aside. Accordingly, the judgment of
learned lower court stands modified to this extent and
accordingly appeal is partly allowed."
12. The substantial question of law has been framed vide order
dated 21.07.2025 as under:
"Whether the learned First Appellate Court was justified in
holding that the registered gift deed No.2285 dated 10.06.99
in favour of defendant No.1 was forged and void ab initio?"
Arguments of the Appellants
13. With respect to the party position, the learned counsel for the
appellants has referred to the trial court's judgment at internal page 2
and has submitted that common ancestor was Kauleshar Mahto who
had two sons, Lalu Mahto and Jhari Mahto. Jhari Mahto had two sons,
Sukan Mahto and Ugan Mahto. Sukan Mahto died in the year 1991
and the plaintiff is Ugan Mahto. He further submits that Defendant no.
1 is Urmila Devi who is daughter of Sukan Mahto and defendant no. 2
is Banshi Yadav who is husband of the defendant no. 1.
14. The learned counsel has further submitted that as per the
genealogical table, Lalu Mahto had three sons, Lochan, Palatu and
Jagarnath and that Lochan and Palatu had died issueless, while
Jagarnath Mahto, as per the plaint, died on 04.05.1999. He submits
that the defendants are the appellants before this Court and as per the
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specific case of the defendants, Jagarnath Mahto had expired on
04.08.1999 and not on 04.05.1999 as claimed by the plaintiff and the
entire answer to the substantial question of law is dependent upon the
date of death of Jagarnath Mahto.
15. The learned counsel for the appellants, while placing the
judgment of the learned trial court, has referred to the case of the
plaintiff and has submitted that as per the plaintiff, wife of Jagarnath
Mahto pre-deceased Jagarnath Mahto who died issueless.
Consequently, Jagarnath Mahto started living with Ugan Mahto and
therefore, there was a re-union in the family amongst Jagarnath
Mahto, Sukan Mahto and Ugan Mahto. As per the plaint, the deed of
gift was fraudulently executed in the name of Urmila Devi, daughter
of Sukan Mahto by impersonating Jagarnath Mahto and such averment
has been made on the basis that Jagarnath Mahto had died on
04.05.1999 and therefore, he could not have executed the registered
gift deed on 10.06.1999 in favour of Urmila Devi.
16. The learned counsel further submits that as per the case of the
defendants, the properties of Ugan Mahto and Sugan Mahto were
never partitioned by metes and bounds and it was false to say that
Jagarnath Mahto, after death of his wife, was residing with Ugan
Mahto. As per the written statement, the fact was that Jagarnath Mahto
was residing in his house and cultivating his entire land separately. It
was stated that Jagarnath Mahto during the lifetime of his wife got the
defendant no. 1 Urmila Devi in his family and she served to them and
when she became marriageable, Jagarnath Mahto got her married with
defendant no. 2. After marriage, both defendant nos. 1 and 2 started
residing with Jagarnath Mahto as his daughter and son-in-law and
both started looking after his affairs and cultivating the land belonging
to him. It was specifically asserted in the written statement that
Jagarnath Mahto died on 04.08.1999 while residing with the
defendants and he was never in jointness with Ugan Mahto. It was
also asserted that the last rites of Jagarnath Mahto were performed by
defendant nos. 1 and 2. It was also asserted that the deed of gift was
executed by Jagarnath Mahto himself on 10.06.1999 who appeared
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before the registry and he made his statement before the Registrar.
The deed of gift was duly attested by the attesting witnesses and
accordingly, the gift deed was a genuine document. It was also
asserted that the Jagarnath Mahto had also executed a deed duly
attested by Jitan Ram, Notary Public, Garhwa on 22.07.1999 and the
date of death claimed by the plaintiff as 04.05.1999 was specifically
denied. It was asserted by the defendants that the date of death of
Jagarnath Mahto was 04.08.1999 and therefore, the gift deed executed
by Jagarnath Mahto was valid.
17. The learned counsel for the appellants has thereafter submitted
that the learned trial court did not return any finding with respect to
the specific date of death of Jagarnath Mahto. He has also submitted
that the plaintiff claimed that Jagarnath Mahto had expired on
04.05.1999 and the specific assertion was made to that effect, but they
failed to prove this fact. On the other hand, the defendants claimed
that the date of death of Jagarnath Mahto was 04.08.1999 and even the
defendants could not prove this fact before the Court. The learned
counsel has submitted that in case where the plaintiff has made a
specific assertion regarding the date of death, it was for the plaintiff to
prove it. Over and above this fact, the learned counsel has submitted
that the gift deed was admittedly a registered document and there is a
presumption in law with respect to its due execution and accordingly,
he has referred to section 34 of the Registration Act.
18. Learned counsel for the appellants has then referred to the
judgment passed by the learned 1st appellate court and has submitted
that the learned 1st appellate court has specifically recorded that none
of the parties have been able to prove the date of death of Jagarnath
Mahto. However, while considering the gift deed, the learned 1 st
appellate court recorded that the original gift deed was produced
before the 1st appellate court and was marked exhibit-I, but there was
no convincing reason for not filing the original deed of gift before the
learned trial court. However, the learned 1st appellate court was of the
view that the attesting witnesses to the gift deed having not been
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produced before the court, mere exhibiting of the original gift deed
was not sufficient.
19. The learned counsel for the appellants submits that the certified
copy of the gift deed from the registry office was produced before the
court and in view of the presumption in connection with registered
document, the learned court was not justified in holding that the gift
deed was invalid.
20. The learned counsel for the appellants has also referred to
section 123 of the Transfer of Property Act, 1882 and has submitted
that all the ingredients of transfer through gift have been satisfied in
the case. The gift deed being a registered document and in view of the
fact that the date of death of Jagarnath Mahto was not proved by either
party, the learned court was not justified in holding that the gift deed
was not valid in the eyes of law. The learned counsel has also referred
to section 68 of the Indian Evidence Act, 1872 to submit that except in
the case of 'Will', when the document is registered, then there is no
need to call the witnesses to prove the same.
Arguments of the Respondents
21. The learned counsel for the respondents, while opposing the
prayer of the appellants, has submitted that the plaintiff at the
threshold had taken a plea that the registered gift deed dated
10.06.1999 was forged and fabricated inasmuch as Jagarnath Mahto,
the executant of the gift deed, had expired on 04.05.1999 and it was
asserted that the gift deed was executed through impersonation. The
learned counsel has further submitted that there were two attesting
witnesses to the gift deed and one identifier but none of these persons
have been examined before the learned trial court. He has further
submitted that there is no explanation whatsoever from the side of the
defendants as to why these persons were not examined.
22. The learned counsel has further submitted that once the
execution of a registered document is in dispute, the witnesses are
required to be examined before the court to prove the deed. He has
referred to the proviso of Section 68 of the Indian Evidence Act and
submitted that an exception has been carved out through the proviso
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that even if a document is registered, the same is required to be proved
by producing a witness to the document if the execution of the same is
in dispute.
23. The learned counsel has further submitted that even if the
plaintiff could not prove the date of death as 04.05.1999, the execution
by Jagarnath Mahto was still in dispute, and therefore, the witnesses
were required to be produced before the court to prove the execution.
24. He has also submitted that the original gift deed was never
produced at the stage of trial and the records of the case reveal that the
learned 1st appellate court had directed the defendants to produce the
original gift deed. Consequently, the defendants produced the original
gift deed before the 1st appellate court and it was simply marked as
Exhibit I. He submits that even this document was not duly proved.
The learned counsel submits that mere marking of a document as
exhibit does not amount to its proof. He has also submitted that though
the document was registered, but the Registrar was not called for as a
witness to prove the due execution of the gift deed.
25. The learned counsel has relied upon the judgement passed by
the Hon'ble Supreme Court reported in (2000) 7 SCC 189 (Rosammal
Issetheenammal Fernandez by Lrs. and Ors. Vs. Joosa Mariyan
Fernandez and Ors.) and submitted that the question of law framed
by this Court is squarely covered by the said judgement. He has placed
the entire judgment. He has also relied upon the judgement reported in
(2009) 1 SCC 354 (K. Laxmanan Vs. Thekkayil Padmini and Ors.)
and has referred to paragraph 25 onwards and submitted that the
judgement passed in the case reported in (2000) 7 SCC 189 (supra)
has been followed.
26. The learned counsel has also submitted that the learned 1 st
appellate court has rightly upheld the finding of the learned trial court
that the registered gift deed was not enforceable.
Rejoinder arguments of the appellants.
27. The learned counsel for the appellants, in response, has referred
to the judgement passed by Hon'ble Patna High Court reported in
1989 SCC OnLine Pat 28 (Radhamoni Bhuiyanin and Ors. Vs.
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Dibakar Bhuiya and Ors.) and specifically to paragraph 16 of the said
judgement, to submit that a registered document carries the sanctity of
correctness and submitted that a registered document has presumption
of correctness, and therefore, the onus was upon the plaintiff to prove
that the registered gift deed was forged and fabricated.
28. The learned counsel has submitted that the sole ground which
was taken by the plaintiff in the plaint with regard to the registered gift
deed was that Jagarnath Mahto had died on 04.05.1999, but this fact
was not proved by the plaintiff, and therefore, there was no occasion
for the court to hold that the gift deed was not enforceable.
29. The learned counsel has also referred to Section 123 of the
Transfer of Property Act, which deals with the mode and manner of
execution of gift deed, and submitted that there is no violation of
Section 123 of the Transfer of Property Act.
30. The learned counsel has referred to Section 34 of the
Registration Act and has in particular referred to Section 34 (3) to
submit that only after due satisfaction, the Registrar identifies the
executor of the deed to be registered, therefore, the gift deed being a
registered document, the satisfaction of the Registrar cannot be
disputed.
31. However, during the course of the argument, it is not in dispute
that neither the Registrar in whose presence the gift deed was
registered, nor any of the witnesses to the gift deed, nor the identifier
of the executor of the gift deed, has been examined as a witness before
the learned court. The learned counsel has not been able to show any
material on record to bring home the reason for non-examination of
the aforesaid persons.
32. The learned counsel has also submitted that there is clear
finding recorded by the court that the date of death of Jagarnath Mahto
could not be proved by either party.
Findings of this Court
33. Before proceeding to decide the substantial question of law, the
provision of law as referred to by the learned counsels for the parties
are quoted as under:
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Section 68 of the Indian Evidence Act is as under:
"68. Proof of execution of document required by law to
be attested. - if a document is required by law to be attested, it
shall not be used as evidence until one attesting witness at
least has been called for the purpose of proving its execution,
if there be an attesting witness alive, and subject to the process
of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any document, not
being a will, which has been registered in accordance with the
provisions of the Indian Registration Act, 1908 (16 of 1908),
unless its execution by the person by whom it purports to have
been executed is specifically denied."
Section 34 of the Registration Act, 1908 is quoted as under:
"34. Enquiry before registration by registering officer.--(1)
Subject to the provisions contained in this Part and in sections
41, 43, 45, 69, 75, 77, 88 and 89, no document shall be
registered under this Act, unless the persons executing such
document, or their representatives, assigns or agents
authorised as aforesaid, appear before the registering officer
within the time allowed for presentation under sections 23, 24,
25 and 26: Provided that, if owing to urgent necessity or
unavoidable accident all such persons do not so appear, the
Registrar, in cases where the delay in appearing does not
exceed four months, may direct that on payment of a fine not
exceeding ten times the amount of the proper registration fee,
in addition to the fine, if any, payable under section 25, the
document may be registered.
(2) Appearances under sub-section (1) may be simultaneous or
at different times.
(3) The registering officer shall thereupon-- (a) enquire
whether or not such document was executed by the persons by
whom it purports to have been executed; (b) satisfy himself as
to the identity of the persons appearing before him and alleging
that they have executed the document; and
(c) in the case of any person appearing as a representative,
assign or agent, satisfy himself of the right of such person so to
appear.
(4) Any application for a direction under the proviso to sub-
section (1) may be lodged with a SubRegistrar, who shall
forthwith forward it to the Registrar to whom he is subordinate.
(5) Nothing in this section applies to copies of decrees or orders."
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Section 123 of the Transfer of Property Act is quoted as under:
"123. Transfer how effected. --For the purpose of making a gift
of immoveable 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.
For the purpose of making a gift of moveable property, the
transfer may be effected either by a registered instrument
signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may
be delivered."
34. The substantial question of law is confined to the registered gift
deed dated 10.06.1999. The title suit was filed in the year 1999, in the
same year when the gift deed was executed. The specific case of the
plaintiff was that the aforesaid registered gift deed was forged and
fabricated and was executed through impersonation and it was
asserted that the executor of the deed, Jagarnath Mahto, had died on
04.05.1999. On the other hand, the specific case of the defendants was
that the executor of the gift deed had expired on 04.08.1999, and
therefore, the gift deed dated 10.06.1999 was validly executed.
35. The plaintiff did not produce the gift deed before the court, but
a certified copy of the registered gift deed was duly exhibited by the
defendants and formed a part of the record. The original gift deed was
not produced by the defendants at the stage of trial and even at the
appellate stage, the defendants did not produce the gift deed suo moto.
The records reveal that the learned 1st appellate court had directed the
defendants to produce the original gift deed and thereafter the original
gift deed was produced and was mechanically marked as exhibit I by
the learned 1st appellate court. Further, neither at the stage of trial nor
at the stage of 1st appeal, two witnesses to the gift deed or the
identifier of the executant were examined. Both parties led evidence
before the court on the point of date of death of Jagarnath Mahto, but
none of them was able to prove the date of death as claimed by them
and accordingly the court has recorded a finding that the date of death
of Jagarnath Mahto could not be proved by either party.
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36. The fact remains that execution of the gift deed by Jagarnath
Mahto was seriously disputed by the plaintiff as per the plaint and it
was alleged that the gift deed was executed by impersonation as
Jagarnath Mahto had expired on 04.05.1999, that is, prior to the
execution of the gift deed dated 10.06.1999.
37. As per Section 123 of the Transfer of Property Act, 1882, for
the purpose of making a gift of immoveable 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. Thus, there is a legal
requirement of at least two witnesses to transfer the property through a
registered gift deed and it is required to be registered.
38. Section 68 of the Indian Evidence Act, 1872, clearly provides
that if a document is required by law to be attested, it shall not be used
as evidence until at least one attesting witness is called for the purpose
of proving its execution, if the attesting witness alive and capable of
giving evidence subject to the process of court. The proviso to Section
68 provides that it shall not be necessary to call an attesting witness in
proof of the execution of any document other than a will, if such a
document has been registered in accordance with the provisions of the
Indian Registration Act, 1908 (16 of 1908), unless its execution by
the person by whom it purports to have been executed is specifically
denied.
39. In the present case, the plaintiff had specifically denied the
execution of the registered gift deed by Jagarnath Mahto. Therefore, in
view of the proviso to Section 68 of the Indian Evidence Act, at least
one of the attesting witnesses to the gift deed was required to be
produced in evidence before the court, given the condition that the
executant of the gift deed had already expired. It was not the case of
the defendants that the attesting witnesses or the identifier of the
executant were dead or were otherwise not available to depose before
the learned court. The fact remains that the attesting witness or the
identifier of the executant was not produced as a witness and no
reason has been assigned for non-production of them before both the
courts.
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40. In the judgement passed by the Hon'ble Supreme Court
reported in (2000) 7 SCC 189 (supra), it has been clearly held that
once there is a denial regarding execution of the registered gift deed,
the main part of Section 68 of the Indian Evidence Act puts an
obligation on the party tendering the document to prove the same by
producing the witnesses to the gift deed. It has been held that unless at
least one attesting witness has been called to prove such execution, the
document shall not be used in evidence. It has been also held that once
the gift deed cannot be tendered in evidence in view of non-
compliance with Section 68 of the Indian Evidence Act, the challenge
to its execution is successful. In the present case, the defendants were
relying on the gift deed, and the plaintiff had clearly denied the
execution of the gift deed in the plaint itself, it was for the defendants
to produce the witnesses to the gift deed to make it admissible in
evidence. Having not done so, the gift deed has not been proved by the
defendants as per law even if it was a registered document.
41. This Court is of the view that the present case is squarely
covered by the aforesaid judgement passed by the Hon'ble Supreme
Court (2000) 7 SCC 189 (supra). The said judgement has been
followed in a subsequent judgement of the Hon'ble Supreme Court
reported in (2009) 1 SCC 354 (supra), and the ratio is on similar lines.
42. So far as reliance by the learned counsel for the appellants on
Section 34 of the Registration Act, 1908 is concerned, this Court is of
the view that the entire provision of the Indian Registration Act has
been taken care of in the proviso to Section 68. Therefore, merely
because the Registrar, at the time of registration of the document, is
required to be satisfied with regard to identification of the executant,
the same will not dispense with the required proof of the gift deed
once it was specifically denied to have been executed by the plaintiff
in the present case in the plaint itself. Accordingly, Subsection 3 of
Section 34 of the Indian Registration Act does not help the appellants
in any manner.
43. Even the compliance of Section 123 of the Transfer of Property
Act does not help the appellants in any manner, in view of the fact that
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mere compliance of Section 123 of the Transfer of Property Act does
not make the registered gift deed a conclusive proof of its due
execution when its execution is denied by the plaintiff.
44. Paragraph 16 of the judgement relied upon by the learned
counsel for the appellants, reported in 1989 SCC OnLine Pat 28
(supra) is quoted as under:
"16. However, from a perusal of the evidence of P.W. 1 in its
entirety it is evident that the said witness did not state that it
was a forged document and as such he mended (sic) to be a
document which was not binding upon him. From the statement
made by the said witness in paragraph 20 of his deposition
itself that he did not challenge the said deed as being forged.
Further, as noticed hereinbefore, the defendants proved the
said document after calling for the same from the office of the
sub-registrar. A registered document carries with its sanctity of
correctness. The execution of the document having been proved
before a competent authority coupled with the fact that its
authority was not challenged in the plaint there cannot be any
doubt that the said sale deed was genuine. The learned trial
court also considered the document to be genuine."
45. So far as the judgement passed by Hon'ble Patna High Court
reported in 1989 SCC OnLine Pat 28 (supra), is concerned, the same
also does not apply to the fact and circumstances of the present case
inasmuch as in the said case, the witness had not challenged the
registered deed to be forged and the defendants had proved the
registered document after calling the same from the office of the sub-
registrar. In such circumstances, the Hon'ble Patna High Court held
that a registered document carries with it sanctity of correctness and
held the execution of the document was proved before the competent
authority, coupled with the fact that its authority was not challenged in
the plaint and the deed was held to be genuine.
46. The said judgement does not apply to the facts of this case. The
facts in the present case are totally different. In this case, there is a
specific challenge by the plaintiff to the very execution of the
registered gift deed right from the plaint, but the registered gift deed
was not duly proved by the defendants as required under the proviso
to Section 68 of the Indian Evidence Act, 1872. This Court finds that
2025:JHHC:30890
the learned trial court, as well as the learned 1st appellate court, have
rightly held that the registered gift deed No.2285 dated 10.06.1999
was not enforceable.
47. The substantial question of law is answered in the aforesaid
manner, against the appellants and in favour of the respondents.
48. There being no merit in this 2nd appeal, the same is accordingly
dismissed.
49. Pending interlocutory application, if any, is dismissed as not
pressed.
50. Let a soft copy of this order be communicated to the court
concerned through FAX/email.
(Anubha Rawat Choudhary, J.)
07.10.2025.
Saurav/
Uploaded on 09.10.2025
