4. K£ÀÄ DzÉñÀ ªÀ rQæ?"
5. In order to substantiate their contentions, the
marked as Ex.P.1 to 3. The defendant was examined as DW1 and
6. After hearing the arguments by both the sides, the
No. 3 in the negative and proceeded to decree the suit as prayed
by the plaintiff. It directed the defendant to vacate the suit
over the possession of the same to the plaintiff.
7. Being aggrieved, the defendant approached the First
Appellate Court in R.A.No.86/2007. After hearing the arguments,
3. What order?
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8. The First Appellate Court answered the points in
favour of the defendant and allowed the appeal. Being aggrieved,
the plaintiff is before this Court in second appeal.
9. While admitting the appeal on 27.02.2009, this Court
had framed the following substantial questions of law:
i) Whether the Lower Appellate Court was justified in
holding that the suit of the plaintiff is hit by the
provisions of the Limitation Act in the manner
considered by the Lower Appellate Court by looking
into Article 58 of the Limitation Act?
ii) Whether the manner of consideration of Ex.D-1 -Gift
deed by the Courts below has led to perverse
appreciation of the evidence and the position as
accepted by the Lower Appellate Court is contrary to
the position of law?
10. During pendency of this appeal, the plaintiff/
appellant filed an application under Order I Rule 10 of CPC
seeking to implead respondent No.2 on the ground that during
the interregnum of the decree passed by the First Appellate
Court and the filing of the present appeal, the defendant had
sold the property to the proposed respondent No.2. This Court
observing that the transaction between the defendant and the
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proposed respondent No.2 would be subject to the outcome of
the suit, as available under Section 52 of the Transfer of Property
Act, rejected the said application.
11. The arguments by learned Senior Counsel
Sri.D.L.Jagadish appearing for the appellant and the learned
counsel appearing for the respondent were heard.
12. The learned counsel appearing for the
appellant/plaintiff submitted that the essential ingredients of a
Mohammedan gift are not established by the defendant to prove
the Ex.D1. He contends that the original of the gift deed has not
been produced by the defendant and therefore, production of the
secondary evidence in the form of certified copy is not justifiable.
13. Secondly, he submits that the DW1, in his testimony
in O.S.No.110/2000, had stated that his father had given the gift
deed to him after his marriage. However, in the present case, he
had laid a foundation to produce the certified copy by saying that
the original has been lost. Therefore, there is discrepancy in
respect of the admissibility of Ex.D.1.
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14. Thirdly, he submits that the essential ingredients of a
Mohammedan gift are not established. It is submitted that to
validate a gift under Mohammedan law there are three essential
ingredients. In this regard he places reliance on the judgment in
the case of Mansoor Saheb (Dead) and others v. Salima (D)
By LRs and others1. In the said judgment, after scanning over
several judgments, In paragraph 25, the Apex Court holds as
below:
"25. The upshot of the above discussion is that
there are three essential elements which are
necessary for a valid gift deed. They are:
a) The gift has to be necessarily declared by the
person giving the gift, i.e., the donor;
b) Such a gift has to be accepted either impliedly or
explicitly by or on behalf of the donee; and
c) Apart from declaration and acceptance, there is
also a requirement of delivery of possession for a
gift to be valid."
15. Drawing attention to the factual matrix of the present
case, the learned Senior Counsel for the appellant submits that
the Ex.D1, which is the certified copy of the registered gift deed,
AIR 2025 SC 373
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though declares that the donor is making a gift, it doesn't show
anything either explicitly or impliedly that it has been accepted
by the donee i.e., the defendant. He also points out that the
handing over of the possession of the suit schedule property by
the plaintiff to the defendant is also not established by this
document. He points out to the fact that immediately after the
gift on 12.02.1969, the entries in the Municipal records had not
been changed and this indicates that the possession had
remained with the plaintiff. Therefore, he contends that the
essential ingredients of the Mohammedan gift are not established
by the defendant.
16. Fourthly, he submits that the defendant had not got
his name entered in the Municipal records to establish that he
was in possession of the property. The say of the plaintiff that in
the year 1990, the defendant had forcibly occupied the suit
schedule property gets an impetus from this aspect. Therefore, it
is contended by the learned counsel for the appellant that the
First Appellate Court had erred in holding that the gift is valid.
17. So far as the limitation is concerned, he points out
that the cause of action had arose in the year 1999. He submits
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that all along, since the year 1990, there was effort by the
plaintiff to get the possession of the property with the help of the
elders of the community. Therefore, he contends that the suit is
well in time.
18. Per contra, the learned counsel appearing for the
defendant submits that the gift deed is dated 12.02.1969. He
points out that Ex.D.1/gift deed shows a categorical expression
by the plaintiff that he wants to gift the suit schedule property to
the defendant.
19. Secondly, he points out that it being a registered gift
deed, the possession goes with the gift deed and therefore, the
defendant's possession of the property has to be accepted. He
further contends that the discrepancy in the deposition of the
defendant regarding the defendant coming in possession of the
gift deed is not a material one. When the defendant had laid a
foundation to say that the original gift deed has been lost and
such a contention was taken up by him in O.S.No.110/2000, the
same also holds good in the present case. It may be true that in
the deposition, the defendant had deposed in O.S.No.110/2000
that his father had handed over the gift deed to him and in the
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present case, he deposed that the gift deed has been lost long
ago, this discrepancy is not of much relevance since
unavailability of the gift deed has been stated by him. It is not
necessary that the manner in which the defendant lost the gift
deed is to be established.
20. Regarding the limitation, he submits that the First
Appellate Court is justified in holding that the question of
limitation being a question of law can be raised at any point of
time. He points out that paragraph 4 of the plaint mentions that
the plaintiff came to know about the hostile title and occupation
of the premises by the defendant in the year 1990. It is the case
of the plaintiff that he had left Hospet in the year 1990 along
with his family for expanding his business and when he returned
after a few months, the defendant had occupied the premises.
Therefore, when the plaintiff came to know that the defendant is
in occupation of the suit property on the basis of the gift deed in
the year 1990, the hostility of the defendant was known to the
plaintiff. Therefore, the cause of action for the suit had arose in
the year 1990 itself. It is contended that when the hostile title of
the defendant was made known to the plaintiff in the year 1990,
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by applying Article 65 of the Limitation Act, the period of 12
years comes to an end in the year 2002. Therefore, when a suit
is filed in the year 2003, the suit is hopelessly barred by time. He
further submits that the plaint, while disclosing the cause of
action, says that the cause of action arose in the year 1999. No
discernible incident or a cause of action has been stated in the
plaint to show that such cause of action had arose in the year
1999. Even if the cause of action had arose in the year 1999, if
the suit is based on the previous title, applying Article 58 of
Limitation Act, the period of limitation ends in the year 2002.
Therefore, at any stretch of imagination, it cannot be said that
the suit is in time. He points out that plaint is cleverly drafted the
plaint to overcome the limitation, but the plaintiff has failed in
his endeavour. Therefore, he submits that the First Appellate
Court is justified in considering the question of limitation as
Section 4 of the Limitation Act casts a burden on the Court to
verify this aspect.
21. He points out that the question of limitation in the
present case is not a question of fact and law. But only on the
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basis of the plaint averments, the suit can be said to be not
maintainable.
22. Further, the learned counsel appearing for the
respondent also places reliance on the judgment in the case of
Abdul Rahim v. S K Abdul Zabar2, where the Apex Court dealt
with a similar situation involving a registered gift deed among
Mohammedans. In paragraph 14 it was held as below:
"14. Indisputably, the deed of gift is a registered one. It
contains a clear and unambiguous declaration of total
divestment of property. A registered document carries
with it a presumption that it was validly executed. It is for
the party questioning the genuineness of the transaction
to show that in law the transaction was not valid. We
have noticed hereinbefore that Razak had been receiving
rent from the tenants. In fact, respondent No.1 in his suit
claimed a decree for apportionment of rent. We would
presume that Razak had been collecting rent from the
tenants during the life-time of his father. The agency to
collect rent, however, came to end as soon as an order of
mutation was passed in his favour. Apart from the fact
that Razak was allowed to continue to collect rent which
having regard to the declaration made in the deed of gift
must be held to be on his own behalf and not on behalf of
the donor."
AIR 2010 SC 211
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REG. SUBSTANTIAL QUESTION OF LAW NO.1:
23. It is the contention of the respondent that the suit is
barred by time. It is submitted that the defendant though had
not raised question of limitation in the written statement, the
Court can decide the question of limitation as it relates to the
jurisdiction of the Court. Section 3 of the Limitation Act throws
burden upon the Court to look into the question of limitation.
Particularly, Section 3(1) of the Limitation Act, reads as below:
"3. Bar of limitation.--(1) Subject to the provisions
contained in sections 4 to 24 (inclusive), every suit
instituted, appeal preferred, and application made after
the prescribed period shall be dismissed, although
limitation has not been set up as a defence."
24. Thus, it may be seen that although limitation has not
been set up by the defendants, it is the duty of the Court to
ascertain that the suit is filed in time. Therefore, the First
Appellate Court was justified in considering the question of
limitation.
25. The learned counsel appearing for the respondent
has submitted that paragraph 4 of the plaint clearly shows that
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the limitation had begun to run in the year 1990. He heavily
relies upon the averments of the paragraph 4 of the plaint to
contend that the admissions of the plaintiff in the plaint being on
the higher footings than the evidence, the Trial Court could have
considered this aspect. It is pointed out that the present suit is
filed before the Trial Court on 21.02.2003. It is submitted that
the plaint is cleverly drafted in order to invoke the provisions of
Article 65 of the Limitation Act. It is pointed out that the plaintiff
is seeking a declaration of title over the suit schedule property
and consequently, relief of possession. Therefore, it is Article 65
of the Limitation Act, which has to be applied to the facts and
circumstances narrated in the plaint. Paragraph 4 of the plaint
reads as under:
"IV. That being so, about the end of the year 1990 or so,
the Plaintiff left for North Karnataka along with his family for
developing the business there. When the Plaintiff returned after
few months, the Suit Defendant had forcibly occupied the suit
house of Plaintiff and the Plaintiff and her family were
prevented from entering the house. When questioned he
claimed the ownership, on the basis of an alleged gift deed,
said to have been executed by the Plaintiff in his favour. It was
then the Plaintiff was shockingly surprised, since he had at no
time executed any such Deed. On demand to show the original
alleged Gift Deed, the Defendant stated that he had lost it and
has only a copy of it. The Plaintiff's suspicions that the
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Defendant might have got the Gift Deed fabricated got thereby
strengthened. The Plaintiff did not force him out in view of his
relationship. The Defendant has resorted to the hostile attitude
since the death of the Plaintiff's sister i.e., Defendant's wife.
26. From perusal of paragraph 4 of the plaint, it is
evident that in the end of the year 1990, the plaintiff left for
North Karnataka and after few months, he returned and the
defendant had forcibly occupied the house of the plaintiff and
plaintiff was prevented from entering the house. It is relevant to
note that the plaint also states that the defendant had stated
that he is in occupation of the suit schedule property on the basis
of the gift deed executed by the plaintiff. Therefore, the
contention of the defendant that he is having title to the suit
schedule property by virtue of the gift deed executed by the
plaintiff was informed to the plaintiff in the year 1990. Therefore,
the pleadings of the plaint are clear and categorical in showing
that the plaintiff was informed about the gift deed and on the
basis of such gift deed, the defendant was in possession of the
property in the year 1990 and as such, the hostility of the
possession of the defendant was within the knowledge of the
plaintiff. Obviously, the possession of the defendant had become
hostile and adverse to the interest of the plaintiff in the year
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1990. When the suit is filed in the year 2003, the period of 12
years has already lapsed and as such, the suit has to be held to
be barred by time.
27. It is pertinent to note that paragraph 10 of the plaint
is contrary to what has been stated in paragraph 4 of the plaint.
The plaintiff in paragraph 10 of the plaint states that he was in
possession till the year 1999. This cannot be accepted. In
paragraph 10 and 11 it is stated as below:
"X. It is submitted that the Plaintiff is the lawful owner of the
Schedule described house, having purchased the same and has
continued to this day as the Owner thereof, being in possession
till 1999. The Municipal Demand Register Extract, the Tax Paid
Receipts and other such Documents, clearly establish the title of
the Plaintiff and his lawful possession till the Defendant forcibly
prevented the Plaintiff to continue in possession, falsely
claiming to be the Donee. The Plaintiff being so dispossessed is
entitled for possession, based on his title as well as for the
declaration of his title."
XI. The Cause of action for the Suit arose long back when the
Plaintiff purchased the Suit house, in or about the year 1999
when in the absence of the Plaintiff and his family, the
Defendant kept the house in wrongful possession, subsequently
when the Muslim Elders endeavoured to settled, in 1996-97
when the Defendant got the house mutated in his name in the
Municipal records based on the fabricated Document without
notice to the Plaintiff, subsequently till now when the Defendant
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has been adamantly preventing the Plaintiff to enter the house,
at Hospet, within the Jurisdiction of this Honourable Court."
28. It is worth to note that in the year 1996, the
defendant had already occupied the house and got the house
entered in his name. This is a clear indication that the defendant
was asserting his title over the suit schedule property on the
basis of the gift deed executed by the plaintiff. It is evident that
the plaintiff knew about the alleged gift deed on the basis of
which claim of the defendant was based. Even then, the plaintiff
did not seek cancellation of the alleged gift deed. Evidently, the
defendant had shown a copy of the gift deed to the plaintiff in
the year 1990. It is not known whether it was a copy of the
original gift deed or the certified copy. The PW1 in his testimony
states that after showing the copy of the gift deed shown by the
defendant, he obtained certified copy of the gift deed and then
he made an effort through the elders of the community to reach
settlement.
29. This clearly shows that the plaintiff came to know
that he was signatory to the gift deed and even then he does not
file a suit for cancellation of the said gift deed. The
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circumstances narrated in the plaint are clearly near to the
circumstances dealt with by the Apex Court in the case of Abdul
Rahim (referred supra). It is evident that for declaration of
title and possession thereof, Article 65 of the Limitation Act is
applicable. If the plaintiff had sought for cancellation of the gift
deed, then Article 58 of the Limitation Act would have been
made applicable, which clearly bars the suit to be filed in that
regard. Therefore, in and effort to obviate the bar of limitation, a
suit for declaration of title was filed by the plaintiff. Hence, the
pleadings of the plaintiff itself show that the suit was barred
when it was filed on 21.02.2003.
30. Learned counsel appearing for the respondent has
also placed reliance in the case of L.Raghwendra Sharan Singh
v. Ram Prasanna Singh (Dead) by Lrs3, where the plaintiff had
sought declaration of title without praying cancellation of the
deed of gift. In paragraph 6.1 and 7.1, the Apex Court observes
as below:
"6.1. At the outset, it is required to be noted that the plaintiff
has instituted the suit against the defendant for a declaration
AIR 2019 SC 1430
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that the defendant has acquired no title and possession on the
basis of the deed of gift dated 6-3-1981 and that the plaintiff
has got title and possession in the said property. In the suit,
the plaintiff has prayed for the following reliefs:
A. That on adjudication of the facts stated above, it be
declared that the defendant acquired no title and possession on
the basis of the said showy deed of gift dated 6-3-1981 and the
plaintiff has got title and possession in the said property.
B. That it be declared that the said showy deed of gift dated
6-3-1981 is not binding upon the plaintiff.
C. That the possession of the plaintiff be continued over the
suit property and in case if he is found out of possession, a
decree for recovery of possession be passed in favour of the
plaintiff.
D. That the defendant be restrained by an order of ad
interim injunction from transferring or encumbering or
interfering with the possession of the plaintiff over the suit land,
during the pendency of the suit.
E. That the cost of the suit be awarded to the plaintiff and
against the defendant.
F. Any other relief or reliefs which the Court deems fit and
proper, be awarded to the plaintiff and against the defendant."
7. xxxxx
7.1. At this stage, it is required to be noted that, as such,
the plaintiff has never prayed for any declaration to set aside
the gift deed. We are of the opinion that such a prayer is not
asked cleverly. If such a prayer would have been asked, in that
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case, the suit can be said to be clearly barred by limitation
considering Article 59 of the Limitation Act and, therefore, only
a declaration is sought to get out of the provisions of the
Limitation Act, more particularly, Article 59 of the Limitation
Act. The aforesaid aspect has also not been considered by the
High Court as well as the learned trial court."
31. The plaintiff, in his testimony before the Trial Court
as PW1, reiterated the plaint averments. It is pertinent to note
that though the plaint avers that on 12.02.1969, when the
alleged gift was executed, the possession was not given to the
defendant. That does not come in the way of the limitation. Be it
a gift deed or any other document, the defendant had clearly
stated before the plaintiff that he is the owner of the property by
virtue of valid document and as such, the interest of the
defendant was clearly adverse to the plaintiff. This cannot be
overcome by saying that the gift deed was invalid for the reason
that it was not followed by handing over of the possession.
Therefore, this Court is of the view that the finding of the First
Appellate Court on the question of limitation cannot be interfered
with.
32. Obviously, the First Appellate Court dealt with the
question of limitation and came to the conclusion that even
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though it was not raised before the Trial Court, in view of Section
3(1) of the Limitation Act, it can be looked into. This finding of
the First Appellate Court cannot be termed to be either perverse
or arbitrary at any stretch of imagination. Therefore, the First
Substantial Question of Law is answered in the affirmative
holding that the suit is hit by the provisions of the Limitation Act.
REG. SUBSTANTIAL QUESTION OF LAW NO.2:
33. Insofar as the second substantial question of law is
concerned, the learned counsel appearing for the appellant
contends that the gift deed dated 12.02.1969 did not see the
light of the day and the averments made in the said gift deed at
Ex.D1 shows that the essential ingredients of Mohammedan Gift
are not complied with. It is pointed out that the said gift deed
was pressed into service by the defendant only in the year 1996
for entering his name in the municipal records. He points out
that though the defendant had showed the gift deed to him in
the year 1990, it was not at all acted upon till the year 1996. It
is also pointed out that testimony of DW1 is not clear as to
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whether he had received the original gift deed from his father or
not and there are divergent statements by him in the present
suit and in O.S.No.110/2000.
34. A perusal of the judgment of the Trial Court shows
that it fastened the burden of proving the gift deed on the
defendant. In its opinion, a denial of gift deed by the plaintiff was
sufficient enough to shift the onus to the defendant. Therefore, it
proceeds to consider the gift deed and opines that Ex.D1 is
certified copy of certified copy and therefore, it is not admissible.
It does not look at Ex.D1, which shows that the gift deed was
produced in O.S.No.110/2000 and it was marked in that suit. It
also notices that the defendant was a minor aged about 4 years,
when the gift deed was executed on 12.02.1969 and he was
represented by minor guardian, his father. Therefore, it opines
that the defendant had no such mental maturity to make
misrepresentation to the plaintiff to execute the gift deed. It also
notices that the allegation of fraud, misrepresentation etc.,
cannot be attributed to the defendant, who was minor. It
considers that Ex.D1 is the certified copy of certified copy and
therefore, holds that it is not admissible. Ultimately, it comes to
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the conclusion that Section 90 of the Evidence Act is not
applicable to the certified copy and repels the believability of the
gift deed.
35. The First Appellate Court holds that the certified copy
of the gift can be accepted as secondary evidence when it is
shown that the original is lost. It is pertinent to note that the
view of the First Appellate Court regarding the certified copy of
the certified copy though is not explicit is acceptable inasmuch as
the Trial Court had relied on a decision where the copy of the
certified copy was produced, which was held to be inadmissible.
In the case on hand, it is the certified copy of Ex.D1, which was
marked in O.S.No.110/2000 and the defendant has produced the
certified copy of the marked document.
36. The First Appellate Court notices that the initial
burden of proving the title is on the plaintiff and he had not
discharged it and therefore, the onus of proving the execution of
the gift deed and its validity would not arise for consideration.
The First Appellate Court holds that the primary burden of
proving the title is on the plaintiff and the plaintiff had not
proved his title.
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37. Be that as it may, a perusal of the Ex.D1 would show
that it is a certified copy, which came to be admitted in evidence
on the basis of the foundation that the original had been lost by
the defendant. The manner in which the original was lost etc.,
need not be gone into when a certified copy is available on
record. However, Ex.D1 does not mention anything that the
defendant, who was minor at the time of execution of the gift
deed, had accepted the gift. The document does not show that
the father of the defendant No.1, as a guardian, had accepted
the said gift. It is also worth to note that there is no material on
record to show that the possession had been first handed over to
the defendant through his guardian in the year 1969. Obviously,
the name of the defendant was entered in the municipal records
in the year 1996. There is no endorsement on Ex.D1 that the
possession was received by the donee.
38. The perusal of the testimony of the DW1 shows that
since the date of possession, he is in enjoyment of the suit
schedule property. Evidently, to substantiate the said contention,
there are no documents to show that since the year 1969 till
1996, the defendant was in enjoyment of the property. The rent
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agreements produced by defendant commences from the year
1995 onwards. Therefore, there is nothing on record to show
that the defendant or his father, as minor guardian of the
defendant, were in possession of the properties from the date of
the gift deed.
39. When the gift deed did not mention the essential
ingredients of acceptance of the gift deed and handing over the
possession of the gifted property, it is not possible for this Court
to hold that the gift deed was acted upon and it can be termed to
be a valid gift under the Mohammedan Law. As noticed supra,
the Hon'ble Apex Court has laid down the essential ingredients
after referring catena of judgments.
40. Obviously, two of the ingredients are not available in
the form of evidence. Therefore, on the intrinsic value of Ex.D1,
it cannot be said that it was a valid gift. Under these
circumstances, the proof in respect of the gift deed at Ex.D1 and
its validity are not satisfactory. Hence, the second substantial
question of law is answered in the affirmative.
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41. The gift deed is relied upon by the defendant to
establish his title over the suit schedule property, but the plaintiff
knowing that the defendant relying upon the gift deed, and that
there was threat to his title, kept mum from the year 1990 till
the year 2003. The defendant is in possession and enjoyment of
the property for more than 12 years though on the basis of
invalid gift. Therefore, when the suit of the plaintiff is hit by the
law of limitation, as discussed supra, even if we hold that the gift
deed relied by the defendant is invalid, that would not enure to
the benefit of the plaintiff. Under these circumstances, the suit of
the plaintiff has to be dismissed on the question of law of
limitation. It is for that reason the allowing of the appeal by the
First Appellate Court has to be upheld and it is not necessary for
this Court to consider the other aspects discussed by the First
Appellate Court.
42. For the aforesaid reasons, it is not necessary to go
into the further details regarding the manner in which the Ex.D1
was appreciated by the Trial Court as well as the First Appellate
Court.
43. In the result, the appeal fails. Hence, the following:
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ORDER
(i) The appeal is dismissed.
(ii) The judgment in R.A.No.86/2007 dated
17.10.2008 passed by the Principal Civil Judge
(Sr.Dn) and JMFC, Hospet dismissing the suit
filed by the plaintiff in O.S.No.49/2003 on the
file of the Additional Civil Judge (Jr.Dn) and
JMFC, Hospet, is hereby confirmed.
(iii) Costs made easy.
SD/-
(C M JOSHI)
JUDGE
YAN
CT:PA
List No.: 1 Sl No.: 51
