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registered settlement deed / Hiba are one and same ?=In the backdrop of the evidence and the case of the parties, the similarity of the thumb impression put by the father cannot help the plaintiff to prove the execution of a compulsory attestable document namely Ex.A2, settlement deed as contemplated under Section 68 of the Indian Evidence Act. When once the plaintiff had not complied with the provisions of Section 68 of the Indian Evidence Act, the proof of execution through the examination of attestor to prove the attestation, sound and disposing state of mind of the executant, it cannot be inferred from the versions of the document merely it was a registered one. Therefore, the reliance placed by the 1st appellate Court that the declaration of gift by the donor, acceptance of the gift by the plaintiff and a consequent possession of the suit property by the plaintiff on the basis of the unproved settlement deed Ex.A3, is clearly a deviation of law. 25.There is no second thought that under Mohammedan law one can create an oral gift (Hiba), for which three elements are necessary as per the provisions of Section 149 of “Principles of Mohammedan law” by Mulla, 10th Edition. The said case of oral gift must be pleaded and proved through cogent evidence by the plaintiff. 26.Per contra, the plaintiff had pleaded only the registered settlement deed through which he claimed to have got the property from the father and was having title over the same. The said plea cannot be abandoned by the plaintiff and he should not be permitted to switch over to another plea of oral gift. Therefore, the lower appellate Court grossly erred in coming to the conclusion that the three principles of oral gift were proved through the versions of the registered settlement deed and since the plaintiff was in possession, he must be given with the title to the said property. The defendant is one of the legal heirs of the father, but for the settlement deed and therefore, the plaintiff should have been directed by the 1st appellate Court to prove his title, strictly in accordance with the pleadings of his case.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 29/10/2011

CORAM
THE HONOURABLE MR. JUSTICE V.PERIYAKARUPPIAH

SECOND APPEAL No.1749 of 1997

M.E.Mohamed Haneefa … Appellant

Vs

Sheik Abdul Khader … Respondent

Prayer

Second Appeal under Section 100 of C.P.C., against the Judgment and
Decree dated 06.03.1997 made in A.S.No.74/92 on the file of the Subordinate
Judge, Karur reversing the Judgment and Decree dated 20.03.1992 made in
O.S.No.1106 of 1981 on the file of the Principal District Munsif, Karur.

!For Appellant … Mr.C.Ananth Chandrasekar
^For Respondent … No appearance

:JUDGMENT

The appellant herein is the aggrieved defendant, who succeded before
the trial Court on the dismissal of the suit. But, in the appeal preferred by
the plaintiff before the 1st appellate Court, the judgment and decree passed by
the trial Court were set aside and the appeal was allowed and consequently the
suit was decreed against the defendant.

2.The facts of the case, in brief, as put forth by the plaintiff before
the Courts below, are as follows:

The suit property was originally belonged to the father of the plaintiff
and the defendant, by virtue of a purchase through a sale deed dated, 30.06.1928
and the father was in possession and enjoyment of the said property from the
said date. The plaintiff was the son born to the father through his 3rd wife
viz., Jainubi Ammal. The defendant was born to the father through his 1st wife.
The defendant left the father and was living separately. The plaintiff, his
father, mother and sisters were living jointly. During the said time, the
father had executed a registered settlement deed in respect of the suit property
in favour of the plaintiff, on 11.05.1988, in consideration of the love and
affection had over him. The said registered settlement deed was promptly
executed, attested and registered in accordance with law. The possession of the
suit property was handed over to the plaintiff on the said date. The revenue
records were also updated in the name of the plaintiff and the plaintiff was in
possession and enjoyment of the suit property. The plaintiff was regularly
paying the property tax to the house property. The father, subsequently, died
and the plaintiff and his mother are living in the suit property. The defendant
had no iota of right, interest or title to the suit property. However, he is
disturbing the plaintiff by raising dispute in the enjoyment of the suit
property. Therefore, the suit was filed by the plaintiff, for declaration that
the suit property is belonging to the plaintiff and consequently for a permanent
injunction against the defendant restraining from in any way disturbing his
possession and enjoyment of the suit property and for costs.

3.The case of the defendant, before the Courts below, would be thus:

The relationship, as pleaded by the plaintiff in between the
parties, is absolutely correct. The plaintiff was not correct to say that the
defendant did not look after the father. The plaintiff, his father and sisters
were not living with the father. The father was living separately. All sons
were helping the father. The case of the plaintiff that the father had executed
a settlement deed in respect of the suit property in favour of the plaintiff is
not correct and it is denied as false. The execution, genuineness and the
validity of the said documents are denied by the defendant. During April and
May 1978, the father was not in a sound and disposing state of mind and he was
not able to pursue the things happened around him. The case of the plaintiff
that the father had executed a settlement deed in favour of the plaintiff in
consideration of love and affection had over him, is totally denied. Moreover,
the plaintiff was in possession and enjoyment of the suit property from the said
date. The tax registry was transferred in the name of the plaintiff and was not
made known to the defendant since it was the clandestine act of the plaintiff.
The averment of the plaintiff that the defendant had no right in the suit
property is not correct. After the death of the father, the legal
representatives of the father are entitled to their respective share in the suit
property. The plaintiff ought to have filed the suit for partition since the
defendant is also deemed in possession and enjoyment of the suit property.
Therefore, the defendant has prayed for the dismissal of the suit.

4.The trial Court had framed necessary issues on the basis of the
pleadings put forth by the parties and had come to the conclusion that the
plaintiff did not prove the execution of the registered settlement deed and
therefore dismissed the suit.

5.Aggrieved by such decision, the plaintiff raised appeal grounds
before the 1st appellate Court and also filed an application to examine one of
the attestors of the settlement deed before the appellate Court and the 1st
appellate Court, after hearing both parties, had come to the conclusion that the
settlement deed need not be proved in accordance with law since the parties to
the settlement deed are Muslims and the Mohammedan Law is applicable to them and
under the provisions of Mohammedan law, the gift deed has been proved and thus,
the suit was decreed in favour of the plaintiff to the detriment of the
defendant.

6.The appellant herein/defendant preferred this appeal against the
Judgment and Decree of the 1st appellate Court and had raised so many grounds,
which includes the following questions of law. Accordingly, this Court had also
framed the following questions of law:
“1.Whether the lower appellate Court is right in law in holding that the
execution of Ex.A.2 settlement deed is proved without even examining any one of
the attesting witnesses under section 68 of the Evidence Act?
2.Whether the lower appellate Court is right in law in assuming that the
comparison of Thumb impression and finding as to the genuineness of the thumb
impression of the settlor is sufficient to prove the execution of the settlement
deed particularly when the settlor is a literate and used to sign and when no
attestors were examined to prove the document in question?

7. Heard Mr.C.Anand Chandrasekar, learned counsel appearing for the
appellant and no appearance for the respondent, despite his name is printed in
the cause list.

8.The learned counsel appearing for the appellant would submit in
his argument that the plaintiff was relying upon, for his title, a registered
settlement deed produced in Ex.A2, which was not proved by the plaintiff in
accordance with law and the said settlement deed was not accepted by the trial
Court, however, the 1st appellate Court had come to a conclusion that the
provisions of Section 68 of Indian Evidence Act is not applicable to the Muslims
since they are covered by the provisions of gift under Mohammedan law. He would
further submit that the 1st appellate Court has not considered that no pleading
has been put forth by the plaintiff either for an oral gift (Hiba) or for the
compliance of the requisites of a gift as contemplated under Mohammedan law.
But, he pleaded only a registered gift deed, as per the provisions of Section
125, which is a compulsorily attestable document.

9.He would also submit in his argument that the plaintiff did not
examine any one of the attestors even though they are alive and available and
therefore failed in his attempt to prove his case. He would also submit that
the plaintiff, having understood that one of the attestors should be examined
for proving the registered settlement deed, he had applied for the examination
of one of the attestors at the appeal stage under Order 41 Rule 2 7 C.P.C., but,
it was not ordered by the lower appellate Court. He would further submit that
the lower appellate Court did not look into the fact that the
executor/donor(father) was in a sound and stable mind to dispose of the property
in favour of the plaintiff, which is essential to gift away any property. No
such evidence has been adduced before the trial Court to prove the sound and
disposing state of mind of the father at the time of execution of the document,
Ex.A2.

10.He would further submit that the examination of attestors are
very much required for the proof of due execution of settlement deed, Ex.A2,
when certain suspicious circumstances that the father, who had signed in all the
admitted mortgage deeds, did not sign in the settlement deed, but had put his
thumb impression before the Registrar and had neither signed nor put his thumb
impression in the settlement deed at the time of alleged execution. The said
circumstances ought to have been cleared by adducing evidence of the examination
of attestor only. He would also submit that the lower appellate Court had
instead of rendering a finding that the settlement deed was not proved by non
examination of any of the attestor, but had compared the thumb impression put by
the executor before the Registrar in Ex.A2 with the admitted thumb impressions
put in the mortgage deeds produced as documents Ex.A3 to A6.

11.The 1st appellate Court had miserably gone wrong in accepting the
evidence of finger print expert examined as P.W.2 towards the execution of the
settlement deed, which is not adequate for proving the execution of the
registered settlement deed under the provisions of Section 68 of the Indian
Evidence Act. He would also submit in his argument that the plaintiff ,having
pleaded acquisition of title only under the registered settlement deed, cannot
travel out side of the pleadings and asked for relief under the cover of an oral
gift (Hiba). Even otherwise the declaration of gift in front of two relatives
by one Mohammedan to another Mohammedan must be proved. However, no witness was
examined to that effect in support of the finding given by the 1st appellate
Court.

12.He would also rely upon a judgment of the Honourable Apex Court
reported in A.I.R.1957 SC 133 between Deoki Kandan V. Muralidhar and others, in
support of his argument. He would also submit that the refusal for permitting
the plaintiff to examine the attestor under Order 41 Rule 27 C.P.C., was not
agitated by the respondent and therefore, the requirement that the plaintiff
ought to have attempted to examine any of the attestors as per provisions of
Section 68 of the Indian Evidence Act.

13.He would further submit that the trial Court has categorically
found that the plaintiff did not attempt to examine the attestors before the
said Court and he falsely stated that the attestors were not available for
examination, as the endorsement of the serving officer against the attestors
would reveal that the notices were served by pasting at the residence of the
attestors.

14.He would further submit that the 1st appellate Court had grossly
erred in accepting the case of the plaintiff regarding the settlement deed,
despite the provisions of Section 68 of the Indian Evidence Act, were not
complied with by the plaintiff. The reliance placed by the lower appellate
Court that the plaintiff had proved the gift in accordance with Mohammedans law
is certainly against the settled principle of law that the plaintiff cannot
travel out side the scope of his pleadings. He would therefore request the
Court that the judgment and decree passed by the 1st appellate Court may be set
aside and the judgment and decree of the trial Court be restored and thus, the
appeal may be allowed.

15.No appearance on behalf of the respondent.

16.I have perused the records of the lower Courts and the decrees
and judgments passed by the Courts below. I have also given anxious
consideration to the arguments of the learned counsel appearing for the
appellant.
17.Indisputably, the plaintiff and the defendant are the step
brothers born to father viz., Mohammed Yousuf Rawther. The plaintiff was born
to the 3rd wife viz., Jainubi Ammal and the defendant was born to the 1st wife
of the father. The property was purchased by the father out of his own funds in
the year 1928 and it was belonged to him.
18.The plaintiff’s case was that the defendant left the father and
was living separately and the father, the mother of the plaintiff and sisters
were living along with the plaintiff and were enjoying the property. It is the
further case of the plaintiff that the father, out of his love and affection
over the plaintiff, had executed a registered settlement deed on 11.12.1978 and
thereby handed over the possession to the plaintiff and the plaintiff was in
possession and enjoyment of the property. No doubt, the plaintiff has claimed
an exclusive right over the suit property by virtue of the registered settlement
deed. However, the defendant had denied the execution, attestation, truth and
validity of the said document in his written statement.

19.The trial Court found that the evidence produced by the plaintiff
before it were not sufficient to prove the registered settlement deed pleaded by
the plaintiff. It found that the thumb impressions put by the father in the
registered settlement deed during registration and the admitted mortgage deeds
in Exs.A3 to A6 were similar and the similarity will not help the plaintiff to
prove the settlement deed since there were no signatures in the settlement deed
dehorse the mortgage deeds are found executed with the signatures of the father.
Moreover, the trial Court found that the execution was not proved in accordance
with Section 68 of the Indian Evidence Act, by examining atleast one of the
attesting witnesses to the said settlement deed, Ex.A2, since the execution,
attestation and validity of the document have been denied by the defendant.

20.The 1st appellate Court had come to a different conclusion that
it is not necessary to follow the strict principles of Section 68 of the Indian
Evidence Act as the parties, viz., the plaintiff and his father are Mohammedans
and according to Mohammedan law, as contemplated in the ‘Principles of
Mohammedans law” written by Mulla, 10th Edition in Section 149, the
requirements of three essentials of a gift were proved by evidence and
therefore, the suit is liable to be decreed. The 1st appellate Court had also
relied upon the judgment of Andhra Pradesh High Court reported in AIR 1984 AP
344, AIR 1981 Kerala 176 and the judgment of Hon’ble Apex Court reported in AIR
1964 SC 275, to reach such a finding.

21.However, the learned counsel appearing for the
appellant/defendant would vehemently argue that the 1st appellate Court had
failed to follow the principles laid down by the Hon’ble Apex Court in
A.I.R.1957 SC 133 between Deoki Kandan V. Muralidhar and others, for the
principle that the plaintiff is barred from adducing evidence nor relying upon a
case different from his case pleaded in the plaint. The relevant passage in the
said judgment, is laid down as follows:
“It should be observed in this connection that though the plaintiff
expressly pleaded that the temple was dedicated “for the worship of the general
public’. The first defendant in his written statement merely pleaded that the
Thakurdwara and the idols were private. He did not aver that the temple was
founded for the benefit of the members of the family. At the trial, while the
witnesses for the plaintiff deposed that the temple was built with the object of
providing a place of worship for all the Hindus, the witnesses examined by the
defendants merely deposed that Sheo Ghulam built the Thakurdwara for his own use
and “for his puja only”. The temple must be taken to have been dedicated to the
members of the family goes beyond the pleading, and is not supported by the
evidence in the case.
In yet another judgment of the Hon’ble Apex Court reported in (1975) 1 SCC 212,
Harihar Prasad Singh and others Vs. Balmiki Prasad Singh and others, it has also
been reiterated the said principle that evidence cannot be adduced beyond the
scope of the pleadings. Similar view has been emphasised in the recent judgment
of the Hon’ble Apex Cort reported in (2011)3 SCC 436 between State of Orissa V.
Mamata Mohanty, in which, it has been laid down as follows:
“Pleadings and particulars are required to enable the court to
decide the rights of the parties in the trial. Thus, the pleadings are more to
help the court in narrowing the controversy involved and to inform the parties
concerned to the question in issue, so that the parties may adduce appropriate
evidence on the said issue. It is a settled legal proposition that “as a rule
relief not founded on the pleadings should not be granted”. Therefore, a
decision of a case cannot be based on grounds outside the pleadings of the
parties. The pleadings and issues are to ascertain the real dispute between the
parties to narrow the area of conflict and to see just where the two sides
differ.”

As regards the facts of the present case, the plaintiff did not plead that he is
entitled to the property by virtue of an oral gift, to which Section 149, in
“Principles of Mohammedan law” written by Mulla, 10th Edition is applicable.
Even otherwise, the requirements of the three elements under the said Section
were not proved by the plaintiff, by examining the relatives, who were present
at the time of the declaration of gift in favour of the plaintiff.

22.On the other hand, the 1st appellate Court had come to the conclusion
that the settlement deed being a registered document is known to every one
constructive on notice and therefore, the versions of the settlement deed are
true. It has also relied upon the version that the plaintiff was given with
gift and he had accepted it and in pursuance thereof, the possession was handed
over to him and he was found in the possession of the property. In order to
find the facts or versions found in the settlement deed, it is very much
essential to prove the said document as known to law. Section 68 of the Indian
Evidence Act runs thus:-

“68.Proof of execution of document required by law to be attested.- If a
document is required by law to be attested, if shall not be used as evidence
until one attesting witness at least has been called for the purpose of provind
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 its specifically denied.]“
According to the provisions, whenever is document required to have compulsorily
attested and is sought to be produced in evidence and the said document, not
being a Will, has been denied by the other side atleast one of the attestors
should have been called for to prove the attestation. Admittedly, no attestor
has been examined before the trial Court. The plaintiff also sought for
examination of an attestor as additional evidence before the 1st appellate
Court, which was also not ordered by the said Court. The trial Court had
categorically found that the plaintiff did not take steps to call for atleast
one of the attesting witnesses before the trial Court to prove the attestation.
Even the scribe, who was present before the Trial Court and was ready to give
evidence was not examined by the plaintiff since he would not depose in his
favour. If the scribe was examined by the plaintiff before the trial Court, the
plaintiffs could have proved the signatures of attestors so as to comply with
the subsequent provisions of Section 68 of Indian Evidence Act. The facts could
have been brought before the Court. But, the plaintiff did not examine the
scribe for the aforesaid reasons.

23.No doubt, the plaintiff had come forward with an application to
compare the thumb impression of the father in the settlement deed, Ex.A2 with
that of the admitted thumb impressions in the mortgage deeds, Exs.A3 to A6 and
the finger print expert was also examined as P.W.2. In his evidence, he deposed
that the thumb impression found in Ex.A2, settlement deed is the same found in
Exs.A3 to A6, the admitted mortgage deeds. It is also found by the trial Court
that in the admitted documents, Exs.A3 to A6, the father had put his signatures
and thumb impressions were obtained before the Sub Registrar along with his
signatures. Whereas, the father had put his thumb impression only before the
Sub Registrar and he neither signed nor put his thumb impression during
execution of Ex.A2 and no explanation has been offered by the plaintiff, when
especially, the defendant had questioned the sound and disposing state of mind
of the father, at the time of execution.

24.In the backdrop of the evidence and the case of the parties, the
similarity of the thumb impression put by the father cannot help the plaintiff
to prove the execution of a compulsory attestable document namely Ex.A2,
settlement deed as contemplated under Section 68 of the Indian Evidence Act.
When once the plaintiff had not complied with the provisions of Section 68 of
the Indian Evidence Act, the proof of execution through the examination of
attestor to prove the attestation, sound and disposing state of mind of the
executant, it cannot be inferred from the versions of the document merely it was
a registered one. Therefore, the reliance placed by the 1st appellate Court
that the declaration of gift by the donor, acceptance of the gift by the
plaintiff and a consequent possession of the suit property by the plaintiff on
the basis of the unproved settlement deed Ex.A3, is clearly a deviation of law.
25.There is no second thought that under Mohammedan law one can
create an oral gift (Hiba), for which three elements are necessary as per the
provisions of Section 149 of “Principles of Mohammedan law” by Mulla, 10th
Edition. The said case of oral gift must be pleaded and proved through cogent
evidence by the plaintiff.
26.Per contra, the plaintiff had pleaded only the registered
settlement deed through which he claimed to have got the property from the
father and was having title over the same. The said plea cannot be abandoned by
the plaintiff and he should not be permitted to switch over to another plea of
oral gift. Therefore, the lower appellate Court grossly erred in coming to the
conclusion that the three principles of oral gift were proved through the
versions of the registered settlement deed and since the plaintiff was in
possession, he must be given with the title to the said property. The defendant
is one of the legal heirs of the father, but for the settlement deed and
therefore, the plaintiff should have been directed by the 1st appellate Court to
prove his title, strictly in accordance with the pleadings of his case.

27.The lower appellate Court, having failed to follow the principles
of law, had relied upon the judgment of High Court of Andhra Pradesh, Kerala and
also the Hon’ble Apex Court for the principles, wherein those judgments, the
registered settlement deed was found proved in accordance with Section 68 of the
Indian Evidence Act. The reliance of those judgments were also not helpful to
the plaintiff, in view of the failure on the part of the 1st appellate Court, to
follow the principle that the plaintiff cannot travel outside the scope of his
pleadings and no evidence was adduced by the plaintiff to substantiate the pleas
raised by him in the plaint. The non compliance of the provisions of Section 68
of the Indian Evidence Act would render the reversal judgment and decree passed
by it, liable to be set aside.
28.The trial Court had rightly come to the conclusion that the
similarity of thumb impression would not render the execution of settlement deed
be proved under Section 68 of the Indian Evidence Act. It is also not in
dispute that the respondent/plaintiff did not prefer any appeal or cross appeal
against the finding reached in his application to receive the additional
evidence filed before the 1st appellate Court.

29.Therefore, I am of the considered opinion that the judgment and
decree passed by the trial Court have to be restored by setting aside the
judgment and decree passed by the 1st appellate Court and consequently to
dismiss the suit before the trial Court.

30.For the foregoing discussions, I am of the considered view that
the appeal is liable to allowed and accordingly, the same is allowed and
thereby, the judgment and decree passed by the 1st appellate Court are set aside
and the judgment and decree passed by the trial Court in dismissing the suit are
restored. No order as to costs.

Arul

To

1.The Subordinate Judge,
Karur.

2.The Principal District Munsif,
Karur.

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