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UMESH PAL SINGH versus SATISH KUMAR

High Court of Judicature at Allahabad

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Umesh Pal Singh v. Satish Kumar - SECOND APPEAL No. - 928 of 1981 [2007] RD-AH 16578 (10 October 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 30

SECOND APPEAL NO.928 OF 1981

Umesh Pal Singh, major and others- Defendants-Appellants

Versus

Satish Kumar and others - Plaintiffs-Respondents

Hon'ble Sunil Ambwani, J.

Heard Shri S.K. Lal, learned counsel for appellants and Shri H.S.N. Tripathi, learned counsel for respondents.

The second appeal was admitted in the year 1981 on the following substantial questions of law:-

"1. Because the disputed gift deed dated 15.9.1975 executed by Bhola Singh in favour of Satish Kumar and others of property more than Rs. 100/- was never registered. The trial court rightly held that it was against the provisions of Section 17 (1) of the Registration Act and Section 123 of Transfer of Property Act therefore it was void. The lower appellate court erred in law in holding that the aforesaid gift deed is valid as the executant admits his thumb mark on the disputed gift deed.

1-A Because admittedly Bhola Singh defendant-respondent no. 4 is the Bhumidhar of the land in dispute and the plaintiff-respondents have no right since execution of sale deed dated 16.8.76 in favour of appellant.

2. Because the lower appellate court has erred in law in holding that the sale deed dated 16.8.1976 executed by Bhola Singh in favour of the appellant Umesh pal and others is invalid as it was obtained fraudulently. The trial court rightly held that the executant Bhola Singh admitted on oath that no fraud was practised on him and that ingredients of fraud were neither alleged in plaint nor there was any evidence of fraud given by plaintiff witnesses Chatra Pal Singh, Rishipal, Kunwar Pal and Khichchmal."

The defendants-appellant filed Original Suit No. 31 of 1977 for cancellation of sale deed executed by Shri Bhola Singh in favour of defendants on 16.8.1976 of plot Nos. 6 and 36 (area 12 bighas, 12 biswas, 13 biswansi) in village Khampur Tehsil Khair District Aligarh. They pleaded that Smt. Meera Devi is the only daughter of Shri Bhola Singh. Shri Bhola Singh had executed a gift deed dated 15.9.1975 in favour of plaintiffs who are sons of Meera Devi. Before the gift deed could be registered, Bhola Singh was threatened by the father of the defendants on which he had executed registered sale deed of area 2 bighas, 5 biswas 18 biswansi in plot no. 6 and 7 bighas 13 biswas, 2 biswansi in plot no. 36 in favour of defendants on 16.8.1976. The sale deed was sought to be set aside both on the grounds that property stood transferred by the gift deed and that the sale deed was executed under threat and coercion and is a fraudulent and sham transaction. The defendants alleged that the gift deed is a fraudulent document and that the sale deed was executed on the free will and consent of Bhola Singh for valuable consideration.

The trial court decreed the suit on 24.2.1978 only to the extent of Rs.1500/- which was deposited by the plaintiffs in pursuance of order passed under Section 146 Cr. P.C. For the remaining amount the suit was dismissed with the findings that the gift deed was not admissible as it was not registered, and that Bhola Singh had admitted in his statement that he did not execute the gift deed and had executed sale deed without any threat or coercion in favour of defendants after accepting valuable consideration.

The Civil Appeal No. 85 of 1978 was filed by the plaintiffs for relief of cancellation of sale deed; and Civil Appeal No. 88 of 1978 was filed by the defendants against the decree of Rs. 1500/- only.

The appellate court allowed the Civil Appeal No. 85 of 1978. While setting aside the judgment and decree, the suit was decreed for cancellation of sale deed dated 16.87.1975, and for injunction restraining the defendants-appellant from interfering in the right title and possession of the plaintiff. The appellate court held that the gift deed was executed by Bhola Singh without any threat or coercion. His daughter Meera Devi had written letter to her husband to bring money for registration of the document which was executed on the stamp paper of Rs. 3000/-. He had executed the document on his free will and did not have any right or title left to execute the sale deed. The defendants were aware of the gift deed and that the sale deed was not a valid document.

Shri S.K. Lal has relied upon Section 123 of the Transfer of Properties Act 1882 and Section 17 (a) of the Registration Act. Section 123 of the Transfer of Properties Act provides that the gift of immovable properties must be effected by a registered instrument signed by or on behalf of doner and attested by atleast two witnesses. Section 17 (a) of the Registration Act provides that instrument of gift of immovable properties requires compulsory registration. He relied upon judgments in Ghulam Abbas vs. Mt. Razia Begum and others AIR (36) 1951 Allahabad 86 in which a Full Bench of the Court has held that even in Muhammadan law, the transfer of immovable property worth more than Rs. 100/- is to be made only by a registered instrument. In Smt. Fatimabibi vs. Smt. Irfana Begam and others AIR 1980 Allahabad 394 a similar view was taken relying upon the Full Bench judgment. While interpreting Section 123 of the Transfer of Properties Act and Section 17 of the Registration Act, the Court held that immovable property can only be transferred by a registered instrument. He has also relied upon Subhash Chandra vs. Ganga Prasad AIR 1967 SC 878 in support of the submission that there was no presumption of undue influence just because the parties are related to each other. This judgment is not relevant as in this case the Court has not scrutinized the plea of undue influence on the ground that the gift deed was not registered and also on the ground that Bhola Singh had stated in his oral statement that he was not under any undue influence at the time when he had executed the sale deed.

It is admitted that the gift deed was not registered. It was executed on a stamp paper of Rs. 3000/-. Before it could be registered Bhola Singh executed the sale deed on 16.8.1968. The gift deed as such was not admissible in evidence and would not transfer the title to the sons of Meera Devi, daughter of Bhola Singh. The transferor-Bhola Singh could have executed the sale deed on 16.8.1976, which according to own statement was executed with his free will and consent and after obtaining valuable consideration. The appellate court erred in law in holding that the gift deed was valid and in decreeing the suit for cancellation of sale deed. The substantial questions of law Nos. 1 and 2 are decided in favour of plaintiff-appellant.

The second appeal is allowed. The judgment and decree of first appellate court dated 19.2.1981 is set aside and that the decree of trial court is restored. The defendant-appellants will be entitled to the costs of the suit and appeals throughout.

Dt.10.10.2007

RKP/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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