L.Rs. of Motilal vs Gyandutt

Vineet Kothari, J.—The appellants/defendants, Bhagirath S/o late Sh. Motilal and others (legal representatives of original defendant, Motilal) having lost the legal battle before the two courts below, have filed the present second appeal under Section 100 of Code of Civil Procedure, 1908, in this Court on 22.04.2011 assailing the judgment and decree dated 28.01.2011 passed by learned Additional District Judge (FT) No. 2, Bikaner, whereby the learned lower appellate court below has dismissed the First Appeal No. 37/2009- LR''s of Motilal v. Gyandutt @ Gyanprakash and Anr., and affirmed the judgment and decree dated 17.12.2005 passed by learned Civil Judge (Sr. Division), Bikaner, decreeing the suit (Civil Original Suit No. 103/1990-Gyandutt @ Gyan Prakash v. LR''s of Motilal) filed by the first respondent/plaintiff, namely, Gyandutt @ Gyan Prakash S/o. late Sh. Onkardutt, for seeking cancellation of sale-deed 11.01.1983 (which was registered before the Sub-Registrar, Bikaner on 19.01.1983) executed by the step brother of plaintiff, second respondent/defendant, Durgadutt S/o. Onkardutt, in favour of original defendant, Motilal adopted son of Labhchand, with the suit land, which is a plot of land ("Bara") ad-measuring 240 Square Yards (2'' x 2'') situated at Mohalla Hamalon-Ki-Bari, Bikaner.

Briefly stated, the facts of the case are that the first respondent/plaintiff, namely, Gyandutt @ Gyan Prakash S/o. late Sh. Onkardutt, filed a suit for possession and cancellation of the sale-deed dated 11.01.1983 executed by second respondent/defendant, Durgadutt S/o. Sh. Onkardutt, in favour of original defendant, Motilal (who is now represented by his legal representatives). Sh. Onkardutt, father of both the plaintiff Gyandutt @ Gyan Prakash and seller-defendant Durgadut, had earlier married one Smt. Bijali, from whom the second respondent/defendant, namely, Durgadutt, was born, who was blind from the time of his birth. After death of Smt. Bijali, Sh. Onkardutt, got married to one Harpyari, who also died issue less and thereafter said Onkardutt, married Smt. Suraj Devi, from whose wedlock the first respondent/plaintiff (Gyandutt @ Gyan Prakash) and one daughter, namely, Asha were born. The first respondent/plaintiff sought cancellation of the sale-deed dated 11.01.1983 (Exhibit-7) on the basis of a Trust-deed (Exhibit-1) dated 22.09.1973 by which Trust was created in his favour by his father, late Sh. Onkardutt, which was duly registered with the Sub-Registrar, Bikaner on 01.12.1973. It is worth noting here that the then Sub-Registrar, Bikaner (Sh. Chaturbhuj Arora) also made a note on the original trust-deed to the effect that the defendant No. 2, Durgadutt, who was blind by birth, was also present at the time of registration of the Trust-Deed (Ex.1), the same was read over to him and he (defendant No. 1- Durgadutt) in turn agreed to the execution of the said Trust-deed in favour of his step brother, Gyandutt @ Gyan Prakash.

This Court also summoned the original trust-deed from the first respondent/plaintiff through his counsel Mr. D.D. Chitlangi, who produced the same before the Court for perusal during the course of arguments. This Court has carefully seen the said original registered trust-deed, on the back of the said trust-deed a note has been appended by the then Sub-Registrar, Bikaner. For the purposes of ready reference, the note (marked as "M" to "N") on the original Trust-Deed is quoted herein below for ready reference:-

The said trust-deed is duly signed by Sh. Onkardutt (father of respondents No. 1 and 2) and bears the thumb impression of the blind son, namely, Durgadutt, through the first wife Smt. Bijali and the thumb impression of third wife of Onkardutt, Smt. Suraj Bai (mother of plaintiff/respondent-Gyandutt @ Gyan Prakash). The said trust-deed (Exhibit-1), which was produced before the courts below, is also quoted herein below for ready reference:-

Against the concurrent decree granted by the two courts below cancelling the sale-deed in favour of Motilal, the legal representatives of original defendant, Motilal have filed the present second appeal under Section 100 of CPC. The findings of the learned trial court in favour of plaintiff Gyandutt @ Gyan Prakash decreeing the plaintiffs suit vide judgment and decree dated 17.12.2005 are quoted herein below:-

The first appeal filed by the appellants/defendants, legal representatives of original defendant, Motilal, being Appeal No. 37/09- LR''s of Motilal v. Gyandutt @ Gyan Prakash and Anr., also came to be dismissed by the learned first appellate court of Additional District Judge (FT) No. 2, Bikaner, vide judgment and decree dated 28.01.2011 with the following findings while affirming of the findings of the trial court:-

Mr. D.R. Bhandari and Mr. Mahesh Joshi, learned counsel appearing on behalf of appellants/defendant, legal representatives of Motilal, submitted that the concurrent findings given by the courts below against the defendant No. 2, Durgadutt, who is son of Onkardutt, and the present defendant, Motilal, cancelling the sale-deed dated 11.01.1983 executed by Durgadutt in favour of Motilal, are perverse and not sustainable and several substantial questions of law arise in the present case. Questioning the validity of marriage of Smt. Suraj Bai, with Onkardutt in the first instance as said Smt. Suraj Bai, was widow of his cousin brother of Onkardutt and, therefore, it fell within the prohibited category as per Section 5 of the Hindu Marriage Act, 1955. Learned counsel for the appellants further submitted that the courts below have wrongly held such marriage to a valid marriage, which is wrong and, therefore, the plaintiff, Gyandutt @ Gyan Prakash, born out of such invalid marriage being an illegitimate child of Onkardutt, could not claim any share in the said property, which was ancestral property of late Sh. Jamnadutt @ Dodji, grand-father of defendant No. 2 Durgadutt and, therefore, he had no right to question the sale-deed executed by the Durgadutt, the blind man, in favour of defendant, Motilal; and for this reason the impugned judgments of the learned courts below deserve to be set aside. Secondly, they also sought to rely upon the certified copy of the Trust-deed aforesaid executed by Onkardutt, Suraj Devi and Durgadutt, in favour of his son Gyandutt @ Gyan Prakash, which includes the suit property, a plot of land (Bara), in the Schedule attached to the said Trust-deed also on the basis of the Note appended in the said certified copy of the Trust-deed, produced by the defendants for the first time before the first appellate court below, which apparently gives a negative meaning to the Trust-deed and which has been discussed by the court below, by insertion of word "No" in the stipulation regarding reading out of that Trust-deed to the blind executant Sh. Durgadutt and that he did not agree to the execution of the same, the Note as reproduced in the certified copy supplied of the same Sub-Registrar i.e. Sh. Chaturbhuj Arora, is also quoted herein below for ready reference:-

Learned counsel for the appellants/defendants, Mr. D.R. Bhandari and Mr. Mahesh Joshi, therefore, submitted that no reliance could have been placed by the courts below on the said Trust-deed and in view of the same no rights accruing in favour of plaintiff/decree-holder Gyandutt @ Gyan Prakash by virtue of said Trust-deed, the execution of the sale-deed of the present suit property, plot of land, measuring 240 square yards only situated in Bikaner, could not be questioned by him. In the alternative, they have also submitted that since the property was ancestral, therefore, both defendant No. 2, Durgadutt and the plaintiff, Gyandutt, being the sons of late Sh. Onkardutt, had equal share in the said suit property and, therefore, to the extent of share of Durgadutt, the sale made by him in favour of defendant, Motilal could not have been set aside by the courts below.

Learned counsel for the appellants also raised a feeble argument that creation of the Trust in favour of Gyandutt @ Gyan Prakash, by the aforesaid registered Trust-deed (Ex.1) was also in contravention of Section 7 read with Section 9 of the Indian Trusts Act, 1882.

Per contra, Mr. D.D. Chitlangi, learned counsel for the first respondent/plaintiff (decree-holder) vehemently opposed the aforesaid submissions made by the learned counsel for the appellants/defendants and submitted and in the first instance that the production of certified copy of the registered trust-deed by the defendants with a negative stipulation in the note about the consent of the defendant No. 2, Durgadutt, to the execution of the Trust-Deed (Ex.1) was a clear forgery committed by the defendants so as to raise a doubt about the reliability of the said Trust-deed executed in favour of beneficiary i.e. plaintiff, namely, Gyandutt @ Gyan Prakash. The word "No" is a deliberate insertion or interpolation in the Note appended clearly recorded by the then Sub-Registrar, Mr. Chaturbhuj Arora, who for the reasons best known to him, while issuing the certified copy to the defendants, which was produced by them before the court below, the word "No" appears in the said note about the consent of Durgadutt in the certified copy only but not in the original Trust-Deed. Mr. D.D. Chitlangi, learned counsel for the plaintiff, Gyandutt @ Gyan Prakash, emphasized that had the said defendant No. 2, Durgadutt, not given his consent, the Trust-deed executed in favour of Gyandutt @ Gyan Prakash, would have been treated as an invalid trust and would not have been registered at all, and this what has been held by the first appellate court below while questioning the validity of the so-called certified copy of the Trust-deed produced by the defendants before the appellate court below.

Learned counsel for the plaintiff, Gyandutt @ Gyan Prakash, Mr. D.D. Chitlangi, also relied upon a order passed by a coordinate bench of this Court in SBCWP No. 2508/2006-Hanuman Bux and Ors. v. Shri Niwas and Ors., decided on 17.07.2007 (though the defendant Motilal was not a party to the said case), in which this Court also examined the same registered Trust-Deed, in respect to some other property (mentioned in the Schedule attached to the said registered Trust-Deed, reproduced above), in which for taking a secondary evidence on record, while examining the said trust deed, the coordinate bench of this Court also rejected the contention and held as under:-

"CIVIL WRIT No. 2508 of 2006

HANUMAN BUX and ORS.

V/S

SHRI NIWAS and ORS.

Mr. SAJJAN SINGH, for the appellant/petitioner.

Mr. D.D. CHITLANGI, for the respondent.

Date of Order: 17.7.2007

HON''BLE SHRI N.P. GUPTA, J.

ORDER

Heard learned counsel for the petitioner.

Learned counsel for the respondent has shown for perusal of the Court, the original trust deed, and from perusal of the original which was shown to the learned counsel for the petitioner also it does not transpire that there ever existed the word so much so that the language of endorsement is not continuous writing containing no over-writing, nor erases, nor any space to indicate that there existed some word which does not exist, or some different word existed.

In that view of the matter, finding recorded by the learned trial court, about there being no material alternations in the document, does not require any interference. That being the position, the other part of the order deciding the application under Section 151 read with Section 45 Evidence Act also does not require any interference.

So far as the direction of the learned trial court to the effect that objection about admissibility of the evidence can be decided at the time of final hearing is concerned, that also become meaningless in view of the aforesaid findings recorded by the learned trial court, and affirmed by this Court.

The writ petition is, therefore, dismissed with the aforesaid observations. It is pointed out by the learned counsel for the respondent that vide order dt. 9.11.2004, the learned trial court was directed to decide the suit expeditiously. Obviously that direction stands."

The original Trust-deed produced by the learned counsel for the plaintiff before this Court also was carefully examined by this Court and the Court found the contention of the learned counsel for the plaintiff as true and correct that the word "No" is not there in the original Trust-Deed (Ex.1).Therefore, how the word "No" or came in the certified copy, could be a matter of investigation.

Since, the said certified copy was produced by the defendants and the said word "No" can give them some benefit, there is a reasonable ground to suspect that the said word "No" was inserted at their instance by the concerned clerk, who has typed out the said certified copy and Note therein containing the said word (No) about the consent of the second respondent/defendant, Durgadutt and the officer who has issued the said certified copy of the Trust-Deed. The said word also appears in the copy of the same document produced along with an application under Order 41 Rule 27 CPC, before this Court on 22.04.2011, which Note has been reproduced in the handwriting of same Sub-Registrar, Mr. Chaturbhuj Arora.

Though at this belated stage also, an investigation or prosecution could be directed by this Court against the erring persons, who had issued the certified copy of the Trust-deed contrary to the original, which is a registered document, and the beneficiaries of such manipulated certified copy, namely, the defendants Durgadutt and Motilal but since the said certified copy appears to have been issued long back on 01.12.1973 itself, about 42 years ago, this Court is refraining from directing the prosecution of the concerned persons in the matter at this stage and would only approve and affirm the findings of facts recorded by the two courts below on the true and correct interpretation of the original Trust-deed, quoted above, which bears the positive consent of the second respondent/defendant Durgadutt in executing the said Trust-deed but, who executed later on the impugned sale-deed in favour of the defendant, Motilal, despite the execution of the Trust-Deed (Ex.1).

The findings of facts recorded on all the contentions raised by the learned counsel for the appellants/defendants about the validity of marriage of Smt. Suraj Bai with Onkardutt and legitimacy of the plaintiff- Gyandutt @ Gyan Prakash being the son of Onkardutt, validity of registered Trust-deed and right of the plaintiff to challenge the impugned sale-deed, have been rightly decided by the courts below on the basis of findings of facts arrived at upon by them and this Court finds no perversity in the same giving raise to any substantial question of law for further consideration by this Court under Section 100 of CPC, 1908.

A word about the last and feeble argument raised by the learned counsel for the appellants/defendants about the said Trust being in violation of Sections 7 and 9 of the Indian Trusts Act, 1882, deserves a mention. The said contention is ex-facie not sustainable because Section 7 clearly permits a trust to be created by every person competent to contract. The capacity to contract of the father of Durgadutt S/o. Sh. Onkardutt is not in doubt from any angle. The said issue also does not appear to have been raised before the courts below. Clause (b) of Section 7 of the Indian Trusts Act, 1882 is not attracted in the present case because the Trust in question is not being created by or on behalf of a minor. The beneficiary of the Trust, i.e. plaintiff Gyandutt @ Gyan Prakash, could be a minor, then, but beneficiary is not covered by the mischief of sub-clause (b) of Section 7 of the said Act, which provides that even in the case of minor, a trust can be crated with the permission of a principal civil court of original jurisdiction, by or on behalf of a minor.

Therefore, the aforesaid contention raised by the learned counsel for the appellants/defendants is noticed only to be rejected as not applicable to the facts of the present case.

This Court also does not find any semblance of reasonableness in the said argument raised by the leaned counsel for the appellants/defendants about the validity of marriage of Smt. Suraj Bai, with Onkardutt, who married the said Onkardutt, after death of his previous wife/wives. At the time of his third marriage with Suraj Bai, the said marriage did not fall within the mischief of prohibited category of Section 5 of the H.M. Act. Even though, no evidence was led by the defendants to prove before the courts below that said marriage was not valid, even if it is assumed for arguments'' sake that previous husband of said Smt. Suraj Bai, who happened to be distant cousin brother of Onkardutt, still there is nothing on record to establish any such prohibition against her marrying Onkardutt after death of her previous husband, namely, Bulaki. Even otherwise, the right of even a illegitimate child in whose favour the valid Trust was created with the consent of defendant No. 2, Durgadutt, who is the seller of the impugned sale in the present case it also cannot be permitted to be questioned by the purchaser under such sale-deed, namely, the appellant/defendant- Motilal or his legal representatives at this stage.

Therefore, viewed from any angle, this Court is satisfied that the courts below have rightly appreciated the evidence on record and have rightly cancelled the sale-deed dated 11.01.1983 executed by the defendant, Durgadutt S/o. Sh. Onkardutt, in favour of original defendant, Motilal, and no substantial question of law arises in the present second appeal for further consideration by this Court.

The legal representatives of original defendant, Motilal, who are in possession of the suit property, namely, the plot of land ("Bara") in question under the impugned sale-deed dated 11.01.1983 and are yet to hand over the possession of the said suit property to the plaintiff, namely, Gyandutt @ Gyan Prakash (decree holder), it is directed that they shall hand over the vacant and peaceful possession of the suit plot of land to the plaintiff/decree-holder within a period of three months from today and they will not create any third party right in the same, otherwise the same shall be treated as void and such third party will also be bound by this decree.

The present second appeal is, accordingly, dismissed. No order as to costs. A copy of this judgment be sent to the concerned parties and both the courts below forthwith.