Habib Ullah Bhat vs Mst. Jana and Another

R.C. Gandhi, J.—The appellant has preferred his Civil 2nd Appeal against the judgment and decree passed by the learned 3rd Additional

District Judge, Srinagar, dated 6-5-2002.

The plaintiff-appellant filed a suit seeking to declare the gift deed executed on 27th January. 1967 in favour of Mst. Jana daughter of Shaban

(wife of Ramzan) resident of Guptganga, Srinagar, as null and void on the ground that at the time of the execution of the gift deed, the plaintiff-

appellant was minor and, therefore, it is void ab-initio. The trial Court framed the following issues:--

Whether gift deed executed on 27-1-1967 has been executed during minority of the plaintiff and as such is not binding on the plaintiff? OPP

If issue No. 1 is proved in affirmative, then whether plaintiff is entitled to possession of suit property? OPP

Whether the defendants instead of sharing the misfortunes of the plaintiff have been beating him and creating hurdle in his way? OPP

Whether the plaintiff was not minor but major of 35 years of age on 27-1-1967 and the relation between the plaintiff and defendants have

remained cordial through out? OPD.

The plaintiff-appellant could not prove the fact that he was minor at the time of the execution of the gift deed. Therefore, the suit came to be

dismissed by decree dated 31st March, 1999 by the trial Court, i.e., 2nd Additional Munsiff, Srinagar. The appellant preferred an appeal against

the judgment and decree which came to be dismissed by the learned 3rd Additional District Judge. Srinagar. The appellant has challenged the

judgments and decree of the Courts below on the ground that evidence has not been rightly appreciated and the certificate which bears the date of

birth of the appellant that the appellant was minor has not been considered.

Heard learned counsel for the parties.

Perusal of the record and appreciation of evidence reveals that this certificate has not been exhibited. The trial Court has rightly not taken it into

consideration, being not proved. The date of birth is a fact and is required to be established and proved. The trial Court framed issue No. 1 placing

onus on the plaintiff-appellant to prove it. The plaintiff-appellant has not discharged the onus. It is not proved by leading evidence that the appellant

was minor at the time of execution of the gift deed. The photocopy of the certificate has not been proved or exhibited. The photocopy of the

certificate unless compared with the original and proved by producing the concerned witness, is not required to be relied upon and taken into

consideration. The trial Court has rightly not relied upon this photocopy of the certificate which is inadmissible in evidence in presence of the legal

and proved rebuttal evidence.

The gift deed was executed on 27th January, 1967. The plaintiff-appellant, according to the pleadings, was born in the year 1952. He attained

majority in the year 1970. The suit came to be filed in the year 1991. Such a suit could be filed within three years after attaining the majority. The

suit on this count also was hit by limitation.

The substantial question of law raised by the appellant is that the respondent-defendant could not disprove by any supporting document the date

of birth of the plaintiff-appellant. The plea of the learned counsel for the plaintiff-appellant is misplaced. It is the appellant on whom the onus was

placed to prove the fact of age and not on the respondent to disprove it. The respondent had to adduce only rebuttal evidence if any evidence to

prove the fact of age is led or produced by the appellant. The trial Court and the appellate Court have recorded cogent findings in the course of the

judgments dismissing the suit and the appeal of the appellant.

No substantial question is made out. The appeal is, accordingly, dismissed. Caveat disposed of.

Registry to return the records called from the trial Court.