M. Shobha vs M. Dinesh and Others

N. Kumar, J—This is a plaintiffs Regular First Appeal challenging the judgment and decree of the Trial Court, which has dismissed her suit for declaration that the gift deed dated 13.07.2007 is illegal, null and void and consequently, for a decree of partition by metes and bounds by giving her 1/8th share in the schedule properties.

For the purpose of convenience, the parties would be referred to as they are referred to in the original suit.

The subject matter of the suit is three items of properties situated in Mysore City, which are more particularly described in the schedule to the plaint and hereinafter referred to as "the schedule properties". The schedule properties belong to one K. Lingaiah. Puttamma is his wife. They had three sons and a daughter. L. Ramachandra is the eldest son, who is the 3rd defendant in the suit, L. Mahadeva is the second son, One L. Yashodha, is the daughter, who is the 5th defendant in the suit and L. Lingaraj is the last son. L. Ramachandra had a son by name R. Mahesh, who is the 4th defendant in the suit. L. Mahadeva, pre-deceased his father leaving behind his widow S. Manorama and the plaintiff- M. Shobha and the 1st defendant - Dinesh. S. Manorama is the 2nd defendant in the suit. L. Yashoda''s son V. Lokesh is the 6th defendant and L. Santhosh is the 7th defendant. L. Lingaraj also predeceased his father leaving behind his widow Kanthamani, who is defendant No. 8 and son L. Deepak, who is defendant No. 9. At this stage, it is relevant to point out that L. Ramachandra had two daughters one R. Hemalatha and another Ashalatha and L. Lingraj and Kanthamani''s daughter is L. Divya, who are not parties to the suit. However, in the plaint it is averred that the plaintiff and defendants are the only legal heirs of the deceased K. Lingaiah, which is factually incorrect.

The case of the plaintiff is her grand father Lingaiah was not keeping good health for quite a long time prior to his death and he was not in a position to move about. After the death of said Lingaiah, the plaintiff came to know that the defendants have colluded together and got concocted document styled as ''Gift Deed'' dated 13.07.2007 pertaining to the suit schedule properties. On 13.07.2007, the said K. Lingaiah was not in a position to take any decision and was not in a position to understand anything as he was bedridden and was virtually into death bed. By taking undue advantage of his helpless situation, the defendants have concocted the document styled as ''Gift Deed'', even though Late K. Lingaiah had no intention of depriving the plaintiff from succeeding to the suit schedule properties. The said alleged gift deed is illegal, null and void and not binding on the plaintiff. The said gift deed was not at all executed by Late K. Lingaiah. The witnesses who alleged to have signed the document were also not known to the said K. Lingaiah. Even though the said Lingaiah used to put his signature, his LTMs are found in the said alleged gift deed and it shows that the LTMs were obtained by the Sub-Registrar in the House of the said Lingaiah at door No. 4504/6C, Thibbadevi Temple Road, Mysore. The said address shown in the document is the address of the eldest son of said Lingaiah and by mis-using the position as eldest son, the 3rd defendant got concocted the document in collusion with the other defendants. It has not been stated in the gift deed as to why the plaintiff has been deprived of the rights to the property and nothing has been alleged about the plaintiff in the said gift deed. The plaint schedule properties are all Joint Family Properties and the plaintiff has acquired right by birth over the plaint schedule properties. Hence, the said Lingaiah had no competency to execute the gift deed. The so-called gift deed is not binding on the plaintiff and will not take away the share of the plaintiff. The said alleged gift deed has been registered after coming into force of Hindu Succession Act, 2005 and hence, no value could be attached to the said document and no right could be claimed on the basis of the alleged gift deed set up by the defendants. The said document does not come in the way of the plaintiff enforcing her right over the schedule properties.

The plaintiff has got 1/8th share in the schedule properties. The defendants and the plaintiff are in joint possession of the suit schedule properties. In view of the illegal act committed by the defendants the plaintiff is not interested in continuing to enjoy the suit schedule properties jointly. Hence, the plaintiff decided to enforce partition of the properties by metes and bounds. She got issued a legal notice on 29.10.2007 which has been duly served on the defendants. No reply has been sent. The demand made has not been complied with. Therefore, she filed a suit for the declaration that the so-called gift deed dated 13.07.2007 set up by the defendants 1 to 4, 8 and 9 in respect of the plaint schedule properties is illegal, null and void and not binding on the plaintiff; To direct the defendants to divide the plaintiffs 1/8th share in the plaint schedule properties by metes and bounds and to put the plaintiff in separate possession of 1/8th share in the plant schedule properties and for mesne profits.

After service of suit summons, the defendants entered appearance through their respective counsel. The defendants 1 and 2 the brother and mother of the plaintiff have filed a detailed written statement contending that the suit filed by the plaintiff for partition and separate possession is not maintainable inasmuch as she has no locus standi to file a suit for partition. They admitted the relationship pleaded in the plaint. They contend that the schedule properties are the self-acquired properties of K. Lingaiah. During his lifetime he had borrowed amount by mortgaging the properties belonging to him and the said suit was decreed and the decree holder had filed an execution petition on the file of the Principal Civil Judge (Sr.Dn.) Mysore in O.S. No. 575/1997, which clearly shows that the schedule properties are the self-acquired properties of K. Lingaiah and he was the absolute owner of the same and had an absolute right to dispose it of during his life time. The plaintiffs marriage was performed on 06.08.1989. From the date of marriage, she is living with her husband at Bengaluru. The allegation that K. Lingaiah was not keeping good health for a quite long time prior to his death and he was not in a position to move about was specifically denied and plaintiff was put to strict proof of the same. They pleaded that K. Lingaiah was keeping good health. During his life time, out of love and affection, he has gifted his self-acquired properties under registered gift deed dated 13.07.2007 and the same has been registered before the Sub-Registrar office on 16.07.2007. Under the said gift deed third item of the schedule property mentioned in the gift deed has been gifted to defendants 1 and 2. The allegation that he was not in a position to take any decision and he was not in a position to understand anything as he was bedridden and he was virtually in the death bed was specifically denied and the plaintiff was put to strict proof of the same. Similarly, the allegation that taking undue advantage of his helplessness, the defendants have concocted the gift deed was denied. K. Lingaiah was keeping good health, he was knowing about the dispossession he was going to make and when he was in a sound disposing state of mind out of love and affection gifted his self-acquired property in favour of his son and his pre-deceased sons'' wife and children. As such, it does not allow the plaintiff to say that the defendants have concocted documents styled as gift deed. The averment in the plaint that the schedule properties are joint family properties and the same is acquired by birth was specifically denied. It was the self-acquired property of K. Lingaiah. The legal notice was issued with an ulterior motive. When the plaintiff has no semblance of right, the Hindu Succession Act will not confer any right for the plaintiff to seek a partition in the plaint schedule properties. Her claim for 1/8th share in the plaint schedule properties was denied. Therefore, they sought for dismissal of the suit.

Defendants 3 and 4 have filed a separate written statement. They admitted the relationship. They reiterated the facts set out in the written statement of defendants 1 and 2. They denied that the schedule properties are joint family properties. They submitted that it is the self-acquired properties of Sri. K. Lingaiah and when he was in a sound state of mind, he executed the gift deed dated 13.07.2007 bequeathing the properties. The said document is registered on 16.07.2007. The mother and the brother of the plaintiff are also the donees under the gift deed. They have also accepted the gift and are in exclusive possession and enjoyment of their share. All the donees have accepted the said gift. There is no infirmity in the execution of the gift deed. It is not illegal, null or void as contended by the plaintiff. Sri. K. Lingaiah himself had executed the said gift deed out of his own will and none of the defendants had influenced Sri. K. Lingaiah in this regard to any extent whatsoever. On account of his old age Sri. K. Lingaiah was unable to sign the gift deed and has affixed the LTM, the reason for which is also explained in the gift deed. The gift deed is properly executed by Sri. K. Lingaiah. Since he was unable to go to the Sub-Registrar''s Office, the Sub-Registrar came to the house of Lingaiah where he marked his LTM in the presence of the Registrar and the gift deed is valid. The donees have also accepted the gifts and it has become complete in all respects. The said gift deed is attested by the Auditor of Sri. K. Lingaiah and therefore sought for dismissal of the suit.

The defendant No. 9 has also filed a separate written statement. He admitted the relationship and denied all the allegations in the plaint. He also contended that it is not a Joint Family Property of Lingaiah. It is his self-acquisition. Under a gift deed dated 13.07.2007, he has bequeathed the properties in favour of his family members, which is duly registered and have reiterated all the allegations made by defendants 1 and 2 as well as 3 and 4 in the written statement. He also sought for dismissal of the suit.

The 8th defendant filed a memo adopting the written statement of the 9th defendant.

On the basis of the aforesaid pleadings, the Trial Court framed the following issues:

"1. Whether the plaintiff proves that the suit schedule properties are joint family properties and that the defendants in collusion with each other concocted gift deed dated 13.07.2007 in respect of the said properties?

Whether the plaintiff proves that as on 13.7.2007, her grand father K. Lingaiah was in deathbed and unable to take any decision?

Whether the defendants 1 to 4 prove that K. Lingaiah having absolute right over the suit properties executed registered gift deed dated 13.7.2007?

Whether the defendants 1 to 4 prove that the plaintiff since got married on 6.8.1989 she has no semblance of right over the suit properties?

Whether the defendants 1 to 4 prove that the court fee paid is insufficient?

Whether the plaintiff is entitled for the relief sought?

What order or decree?"

The plaintiff in order to substantiate her claim examined herself as P.W. 1 and produced 10 documents, which were marked as Ex. P1 to Ex. P10. On behalf of the defendants, the 1st defendant M. Dinesh was examined as D.W.1, one attesting witness to the gift deed was examined as D.W.2, the 3rd defendant -L. Ramachandra was examined as D.W.3 and the 8th defendant - Kanthamani was examined as D.W.4. They produced 15 documents, which were marked as Ex. D1 to Ex. D15.

The Trial Court, on appreciation of the aforesaid oral and documentary evidence on record held that the plaintiff has failed to prove that the said properties are joint family properties and the defendants in collusion with each other concocted the gift deed dated 13.07.2007. Further, the plaintiff has failed to prove that as on 13.07.2007 her grand father K. Lingaiah was in death bed and that he was unable to move about. Defendants 1 to 4 have proved that the schedule properties are the self-acquired properties of Sri. K. Lingaiah and that he has duly executed the gift deed dated 13.07.2007 and the same is also duly registered. After answering all the issues in favour of the defendants, the suit of the plaintiff came to be dismissed. Aggrieved by the said judgment and decree of the Trial Court, the plaintiff has preferred this appeal.

Sri. T.N. Raghupathy, learned counsel appearing for the plaintiff-appellant assailing the impugned judgment and decree of the Trial Court contended that the donor K. Lingaiah was aged about 90 years on the date of the execution of the gift deed. He died within a month and six days after the execution of the said deed. Admittedly, his hand was shaking and therefore, his LTM was taken and as he was unable to move out of the house, the Sub-Registrar himself came to the house, which circumstances clearly establishes that the deceased K. Lingaiah was not in a sound state of mind and the he was on his death bed and therefore, the gift deed said to have been executed by him is not a voluntary act. The evidence on record, if, properly scrutinized shows that there is an inconsistency insofar as the execution and registration of the document is concerned. D.W.2 attesting witness is emphatic that the document was executed on 16.07.2007, whereas the evidence of other witnesses shows that the document was executed on 13.07.2007, which shows that the gift deed had not come into existence in the normal course. He further submits that there is no endorsement of the Sub-Registrar showing the acceptance of the document by him at his residence for registration and therefore, the requirements of the Registration Act and the Rules are not complied with. It vitiates the entire process. Behind page No. 5, the attesting witnesses identified the LTM of K. Lingaiah to the document. Though D.W.2 in his evidence has categorically stated that at the time of registration of the document, he identified the executant, D.W.2 being closely related to the 1st defendant, his evidence is to be taken with pinch of salt. In the gift deed, no reasons are assigned for not bequeathing any portion of the schedule property in favour of the plaintiff, which she was legitimately entitled to if, there was no gift and therefore, he contends that the gift deed is a concocted document and the gift deed is not duly executed and the grand daughter i.e., the plaintiff is entitled to 1/8th share in the suit schedule property.

Per contra, Sri. Adarsh Gangal, learned counsel appearing for defendants 1 and 2 contended that Ex. D9 is the registered gift deed executed by K. Lingaiah, which is produced in the Court and marked. As gift deed is a document, which is compulsorily attestable, one attesting witness has been examined to prove the due execution. That apart, Ex. D9 being a gift deed, it has to be accepted to make it valid. 4 persons, who have accepted the gift, have been examined in this case. Attesting witness, a respectable person and a close friend of K. Lingaiah has been examined. This evidence on record clearly establishes the due execution of the gift deed and also the registration. No doubt K. Lingaiah was aged 90 years at the time of execution of the Will, his hand was shaking and therefore, his LTM was taken, which is also recorded in the document itself. As the Sub-Registrar''s office is in the first floor and K. Lingaiah could not climb, the Sub-Registrar was requested to come to the house of K. Lingaiah and to register the documents, which he has done and therefore, he submits that as all the formalities of the registration is complied with in accordance with law and the Rules and the signatures of the attesting witnesses as well as the donees have been taken, there is no suspicious circumstances surrounding the execution of the gift deed and the finding of the Trial Court is based on legal evidence and it does not call for any interference.

Sri. P.N. Manmohan, learned counsel appearing for defendants 3 and 4 pointed out that when a registered gift deed is produced before the Court, marked and attesting witness is examined apart from four donees, who have also affixed their signatures, the presumption is, document is duly executed and registered. The plaintiff has not produced any evidence on record to show want of due execution or in support of her contention that the executor was not in a sound state of mind, he was on his death bed and he had not executed the document voluntarily as required under the law. Therefore, on appreciation of the evidence on record, the Trial Court was justified in holding that the gift deed is duly executed and duly registered and the plaintiffs claim is ill founded. Therefore, he submits that no case for interference is made when a well considered order is passed.

In the light of the aforesaid material on record and the rival contentions, the points that arise for our consideration in this appeal are:

"1. Whether the gift deed executed by K. Lingaiah on 13.07.2009, which is registered on 16.07.2007 is duly executed and duly registered as held by the Trial Court?

Whether the plaintiff is entitled to a share in the schedule property?"

As could be seen from the pleadings, the specific case pleaded by the plaintiff is, the schedule properties are all Joint family properties of Lingaiah and his sons and daughter. By virtue of the amendment to Hindu Succession Act in 2005, where a daughter has been given the status of a coparcener, she has acquired a right by birth in the schedule properties. Therefore, when K. Lingaiah died intestate, she is entitled to 1/8th share in the schedule properties. Lingaiah had no right to execute a gift deed in respect of Joint Family Properties. Even if he has executed one, the said deed does not bind the plaintiff to any extent whatsoever nor it takes away her right to claim 1/8th share. Therefore, the defendants have specifically pleaded that the schedule properties are not the Joint Family Properties and they are the self-acquisition of Lingaiah. As they were his self-acquired properties, he had a right to bequeath the properties in favour of any person of his choice and therefore, he had executed a gift deed giving the schedule properties to defendants 1 to 4 and 8 & 9. In fact the plaintiffs mother and brother are also the beneficiaries under the gift and therefore, the plaintiff has no right in the property. In the course of the evidence, plaintiff has categorically stated that Lingaiah was doing contract business. He constructed Maharani college and Regional college at Mysore. He had sufficient income. She admits that the schedule properties are his self-acquired properties. She also admits that the family did not own any ancestral property and the schedule property was the self-acquired property of her grand father. He had a right to give it to any person of his choice. Therefore, she has not adduced any evidence to prove that the schedule properties are joint family properties as pleaded by her in the plaint. On the contrary in the cross-examination, she admits that it was his self-acquisition. Therefore, the Trial Court based on this evidence and the evidence of other witnesses has recorded a categorical finding that the schedule properties are not the Joint Family Properties as contended by the plaintiff and they are the self-acquired properties of K. Lingaiah.

In fact before us, the learned counsel for the appellant/plaintiff fairly conceded that it is the self-acquired properties of K. Lingaiah and the case of the plaintiff that they are Joint Family Properties is not proved. We have also gone through the evidence on record. The admission of P.W.1 plaintiff which is in Kannada is extracted in the judgment. The said admission, in unequivocal terms establishes that the said properties are all self-acquisitions of K. Lingaiah and they are not Joint Family properties. Therefore, the finding of the Trial Court that they are self-acquired properties and not joint family properties is based on legal evidence and does not call for any interference. If the schedule properties are the self acquisitions of K. Lingaiah then the provisions of the Hindu Succession Act as amended in 2005, by insertion of Section 6 of the Act conferring the status of a coparcener on a daughter, has no application to the facts of this case. Therefore, the contention that the gift deed having been executed subsequent to the said amendment and therefore, it has no validity is also without any substance.

Now the only question that remains to be considered is:

"Whether the gift deed is only executed and regretted and whether it has been accepted by the Donees as required under law?"

It is contended in the plaint that on the day the gift deed was said to have been executed by K. Lingaiah, he was not in a position to take any decision. He was not in a position to understand anything as he was bedridden and he was virtually in the death bed. By taking undue advantage of his helplessness, defendants have concocted the documents styled as "gift deed", even though late K. Lingaiah had no intention of depriving the plaintiff of succeeding to the suit schedule properties. The gift deed is illegal and not binding on the plaintiff. The said gift deed was not at all executed by Late Lingaiah and that the witnesses, who are alleged to have signed the gift deed were not known to Lingaiah. Even though Lingaiah used to put his signature, the LTMs are found on the gift deed and it shows that the LTMs were obtained by the Sub-Registrar in the house of the 3rd defendant and therefore, it was contended that the gift deed is not duly executed.

Therefore, the question for consideration is:

"Whether the gift deed is duly executed by Lingaiah and duly registered?"

Chapter VII of the Transfer of Property Act deals with ''Gifts''. Section 122 of the Transfer of Property Act defines what a gift is. It reads as under:

"122. "Gift" denied.--"Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person call the donor, to another, called the donee, and accepted by or on behalf of the donee."

From the aforesaid section, it is clear that a gift to be valid, it should be made voluntarily and without consideration. The gift should be accepted by or on behalf of the donee. Therefore, what is to be demonstrated before the Court is that the gift is made voluntarily and is duly accepted by the donees.

Section 123 of the Transfer of Property Act deals with as to how transfer of a property by way of gift, is effected. The said gift must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Therefore, a gift deed is a compulsorily attestable document.

How a document, which is compulsorily attestable should be proved is found in Section 68 of the Indian Evidence Act. It reads as under:

"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving 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 is specifically denied."

But proviso to Section 68 provides that, if the document is registered in accordance with the provisions of the Indian Registration Act, unless its execution by the person by whom it purports to have been executed is specifically denied. It is not necessary to examine the attesting witness, it is in the nature of exception to the main section. However, this proviso has no application in the case of a Will.

Interpreting this provision, the Apex Court in the case of Surendra Kumar Vs. Nathulal and Another, AIR 2001 SC 2040 : (2001) 1 JT 520 Supp : (2001) 3 SCALE 647 : (2001) 5 SCC 46 : (2001) 2 UJ 1157 : (2001) AIRSCW 1862 : (2001) 3 Supreme 622 had an occasion to consider the requirement of due execution of a gift deed as contemplated under Section 123 of the Transfer of Property Act. The Apex Court at para 13 held as under:

"13. Section 123 of the Transfer of Property Act, 1882 provides :

Transfer how effected. For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

In the present case there exists a registered deed of gift signed by the donor and attested by two witnesses. Therefore, the requirement of the law as incorporated in the Section is satisfied. Section 68 of the Indian Evidence Act, 1872 makes a provision regarding proof of execution of a document required by law to be attested. Therein it is laid down that:

If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.

The proviso to the section, which is relevant for the present purpose, reads:

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 is specifically denied.

(Emphasis supplied)

On a plain reading of the proviso, it is manifest that a registered deed of gift can be received in evidence without examining one of the attestors if the person who has executed the deed of gift has not specifically denied its execution. In the present case, the donor Chand Bai has specifically admitted execution of the deed of gift in favour of the appellant. Therefore, the lower appellate Court was in error in holding that the deed of gift has not been duly proved since one of the attestors has not been examined as witness. Indeed the certified copy of the registered deed of gift was produced in the trial Court along with an application filed by the plaintiff in the previous suit, suit No. 69/70(4/76) that the same may be called for. The trial Court, being satisfied about the reason for non-production of the original document, marked the certified copy of the deed of gift as Exhibit-3."

It is in this background of the legal position, we have to appreciate the evidence of P.W. 1 to find out whether she has proved her case of the executant being of unsound mind, bedridden, lying on the death bed, had no capacity to understand and that in fact he had not executed the gift deed. At this stage, it is to be remembered that except the evidence of plaintiff, she has not adduced any other independent evidence on record. In fact the documentary evidence on which she relies on, are in the nature of katha extracts as per Ex. P1 to Ex. P3, Ex. P4 is copy of the lawyer''s notice, Ex. P5 and Ex. P6 are the postal acknowledgements and Ex. P7 to Ex. P10 are returned postal covers, which have no bearing on the issue. Though in the examination-in-chief which is by way of an affidavit, what is set out in the plaint has been reiterated, in the cross-examination, she has deposed that K. Lingaiah''s family did not have any ancestral properties. K. Lingaiah acquired the schedule properties out of his own earnings. Her father also had acquired certain properties on his own. Her father has given his properties to his mother and brother under a Will, which she denies. However, she has filed a suit in O.S. No. 31/2003 for partition and separate possession. She was married in the year 1989. She also has spoken about the eviction petition filed by her mother in which, she has sided with the tenant and contended that she was collecting the rent from him. She admits in the gift deed that K. Lingaiah has not given any property to his only daughter Yashoda, who has not challenged the same till today. She pleads her ignorance about the schedule properties being given by Lingaiah to his three sons. But she admits that on the basis of the gift deeds, those sons have made out the katha in their names and enjoying the properties. Lingaiah got a site granted in her favour, which is situated in Bogadhi. She further states that it was the grand mother who got the site. She pleads ignorance that the said site at Bogadhi is worth about Rs. 35 to 40 lakhs. She admits that her grand father was the Yajamana and everything in the house was done according to his instructions. She admits that the marriage was also performed by her grand father. She admits that her grand-father had good worldly knowledge. She also admits that he was a very intelligent person and nobody could fool him. She admits that he was aged about 90 years on the date of his death. She has deposed that her grandfather was not conscious at the time of his death. She is unable to say when she saw her grand father last time before his death. This is all her evidence. This evidence does not establish her case that her grand father was not in a position to take any decision and was not in a position to understand anything as he was bedridden and was virtually in the death bed. This evidence also does not prove her case that the defendants have concocted the document taking advantage of his helpless situation. It also does not prove her case that the gift deed was not at all executed by Lingaiah.

As against this evidence, we have the evidence of the defendants. More importantly, the evidence of D.W.2 the attesting witness to the gift deed. D.W.2 is K.B. Boraiah, who was aged about 78 years on the day he was giving evidence before the Court. He was also a Contractor. He has deposed that Lingaiah was also a Contractor. He had acquaintance with him for several decades. He has deposed that Lingaiah called him over phone on 16.07.2007 asked him to come to his home situated at D. No. 4504/6C, Thibbadevi Temple Road, N.R. Mohalla, Mysore, which is item No. 2 of the plaint schedule properties. When he went to his house, K.V. Shanmukaiah, Chartered Accountant the other attesting witness to the gift deed and Krishnaswamy, Advocate the scribe of the gift deed were present. It is his evidence that Lingaiah informed him that he has got prepared a gift deed on 13.07.2007 gifting the self-acquired properties in favour of his son Ramachandra, grand son R. Mahesh and also in favour of Manorama, Dinesh, Kanthamani and L. Deepak, who are his sons and wife and children of Mahadevaiah. He also informed him that the gift deed was prepared through Advocate Sri. Krishnaswamy, the scribe of the document. Sri. Krishnaswamy in their presence read over the gift deed and the deceased Sri. K. Lingaiah acknowledged the correctness of the said gift deed. He put his LTM as his hands were shaking. The Donees also affixed their signatures for having accepted the gift and then he and K.V. Shanmukhaiah signed the gift deed as witness to the said document. He also deposed that he identified K. Lingaiah at the time of registration of the document at his residence. He has deposed the Lingaiah was in a sound disposing state of mind at the time of execution of the gift deed.

He has been cross-examined at length by the plaintiff. In the cross-examination it has been elicited that D.W.2''s daughter Meera is given in marriage to Mahesh, the 4th defendant in the suit, who is the grand son of K. Lingaiah. He admits that under the gift deed his son-in-law is also given properties. He has deposed that he came to know about the gift only on 16.07.2007. In his presence, K. Lingaiah affixed his LTM to four sets of gift deeds, on the same day i.e., on 16.07.2007. At the time he reached Lingaiah''s house, Sub-registrar had not come to his house. Apart from affixing the signature in the house of K. Lingaiah, he has also affixed his signature in the Sub-Registrar''s Office along with K.V. Shanmukhaiah. He has denied the suggestion that K. Lingaiah was not fit to sit and that he was in the death bed. He has pleaded his ignorance about the number of days prior to his death, K. Lingaiah was bedridden. Krishnaswamy, Advocate has prepared the gift deed on the instruction of K. Lingaiah. He admits that K. Lingaiah had some love and affection towards all his grand children. He also admits that even prior to the execution of the gift deed, the family members were in possession of the same.

From the aforesaid evidence on record, it is clear D.W.2 was present in the house of Lingaiah on 16-07-2007. When he went to the said house, Shanmukhaiah, the other attesting witness and Krishnaswamy - the Advocate scribe of Ex. D.9 were present. His family members were also present. In his presence, the scribe read over the document to Lingaiah. Thereafter, as his hand was shaking, he has affixed his LTM to Ex. D.9 which was in four sets. After he affixed his signature, the donees have affixed their signatures, having accepted the gift. It is thereafter, he has affixed his signature as an attesting witness and after him, Shanmukhaiah, the other attesting witness has affixed his signature. His evidence that the attestor was in a sound state of mind at the time of affixing his signature, he was not under anybody''s influence and he affixed his signature voluntarily after understanding the contents of the document, is not seriously challenged. He is a friend of Lingaiah for more than four to five decades. He is also related to him, because he has given his daughter in marriage to D.4 - the grand son of Lingaiah, the contention was, because of that relationship, he was an interested witness and non-examination of other witnesses is fatal to the case of the plaintiff. We do not see any substance in the said contention, because the evidence on record shows Lingaiah was a contractor. D.W.2 was also a contractor. They were friends for more than four to five decades. If because each of them know each other well, if D.W.2 has given his daughter to Lingaiah''s grand son - the fourth defendant, it makes no difference. Both Lingaiah and D.W.2 are placed well off in life. Having regard to the status of D.W.2, there was no necessity for him to come and depose before the Court falsehood. It is not the case of the plaintiff that D.W.2 was not present at the time of execution nor that he was not an attesting witness. In fact, not only he has affixed his signature as an attesting witness to Ex. D.9, he has also affixed his signature along with Shanmukhaiah when the said document was presented for registration before the sub-Registrar after its execution in the house. Thereafter, when the sub-Registrar visited the house of Lingaiah for the purpose of registration, D.W.2 also has identified the LTM of Lingaiah before the sub-Registrar. These are undisputed facts. In the light of this evidence, the contention that the evidence of D.W.2 has to be excluded and the said evidence does not prove due execution of the gift deed is without any merit. In fact this evidence of D.W.2 is corroborated by the evidence of D.Ws. 1, 3 and 4.

D.W.1 is the first defendant in the suit and is none other than the brother of the plaintiff. In the examination-in-chief, which is filed by way of affidavit, he has reiterated what he has stated in the written statement. He has deposed, from 2002 there is a difference of opinion between him and the plaintiff and that there is dispute regarding partition in respect of the self acquired property of their father. Even when Lingaiah was alive, the suits were pending. Though Lingaiah''s children and grand children were visiting Lingaiah during his life time, plaintiff has not visited him. Prior to his death, Lingaiah was not suffering from any ailment. He was not bedridden. He was bedridden a week before his death. Lingaiah was an educated person. He was putting his LTM. He could not say from how many days prior to his death he was unable to sign. He was carrying on his affairs till his death. He was also collecting rents. He did not know whether he was issuing any receipts. He was operating Bank accounts also. To his knowledge, once Lingaiah was admitted to Mission hospital, but he could not say on what date and the cause for such admission. He has deposed that the gift deed was prepared in four sets. It was prepared in the house of Lingaiah. Advocate Krishnaswamy prepared the said document and got it typed outside. All corrections in the document were made by the lawyer on instructions of Lingaiah. Lingaiah was able to read the document. Lingaiah did not go to the Sub-Registrar''s office as the sub-Registrar''s office was in the first floor, there was no lift. As he was unable to climb the stairs a request was made to the Sub-Registrar to come to the house. The witnesses have affixed their signatures to the deed in Lingaiah''s house as well as in sub-Registrar''s office. Auditor Shanmukhaiah and D.W.2 have signed Ex. D.9 both in the house as well as in the sub-Registrar''s Office. D.W.2 has identified Lingaiah before the sub-Registrar. In the gift deed - Ex. P.9, there is no reference to any grand daughters. On the date of Ex. D.9, all the properties were in the possession of Lingaiah. After the execution of the gift deed, possession was given to donees. After the gift deed, Lingaiah did not retain possession of any properties. He admits, donees were in possession of the said properties even prior to the date of the gift. Lingaiah was living till his death at the same house.

Even in the evidence of third defendant who is examined as D.W.3 - the son of Lingaiah, he also has reiterated by way of examination-in-chief, what is pleaded in the written statement. He has also been extensively cross examined. He has deposed that Lingaiah was not suffering from any disease prior to his death. Because of diabetes, Lingaiah was admitted to the hospital about two years prior to his death. Earlier, Lingaih was signing, but subsequently, he could not sign as his hand was shaking. He was operating his Bank accounts. He was collecting the rents. He was taking care of his properties. He has denied all suggestions. He has deposed, at the time of gift deed, D.W.2, another attesting witness, himself, his wife, his son, his second brother''s wife and their son and his third brother''s wife were all present. The gift deed was prepared in the house.

Then, we have the evidence of D.W.4 - the 8th defendant, Smt. Kanthamani. In the cross examination, she has stated, she came to know about the gift deed on 13-07-2007 when her father-in-law sent for her. At that time, she was not staying with Lingaiah. As soon as the gift deed was given to her, possession was also given. Of course in her evidence she has stated, gift deed was written on 16-07-2007. But again she has stated, the gift deed was prepared on 13-07-2007. At that time, the third defendant, his son Mallesh and all other donees were present. On 13-07-2007, attesting witnesses were not present. The corrections were made in Ex. P.9 according to the instructions of Lingaiah. Lingaiah was educated, was affixing his signature, his hand was shaking, from what date he stopped affixing his signature is not within her knowledge, but she says till his death he was looking after all his affairs. He was having bank accounts. He was operating bank accounts. He was issuing rent receipts. One week prior to his death, he was bedridden. She does not know whether he was treated and she has denied all suggestions made.

From this evidence, it is clear, substantially on material facts, there is no inconsistency between what D.W.2 has deposed and what these donees have deposed. When we scan the entire evidence on record, there is no material to demonstrate that Lingaiah was not in a sound state of mind. He was bedridden. He was on his death bed. He was not knowing what is happening around him. But on the contrary, the evidence discloses, he was an independent man, he is an educated person. One week prior to his death, he was moving around, he was collecting rents, he had bank account. He was operating his own bank account. From this material on record, it is not possible to accept the case of the plaintiff that, taking advantage of his age, helplessness, defendants by collusion have obtained the document depriving the grand daughters and in particular the plaintiff of her legitimate right in the schedule properties.

An attempt was made to point out in the evidence there is discrepancy, the day on which the gift deed came into existence. It was pointed out that, if D.W.4''s evidence shows that the document was ready on 16-07-2007, the evidence of others shows, the document was ready on 13-07-2007. We have pointed out in extenso, the evidence on record. Except Kanthamani - 8th defendant i.e. D.W.4, in one line has said the document was ready on 13-07-2007. Therefore it is clear, the document is dated 13-07-2007, it is executed on 16-07-2007 in the house of Lingaih. Lingaiah affixed his LTM on four sets of gift deeds in the presence of attesting witnesses and the donees. After affixing the LTM, the donees have affixed their signatures accepting the gift and thereafter D.W.2 has affixed his signature and Chartered Accountant - Shanmukhaiah also has affixed his signature as the attesting witnesses. Therefore, this evidence conclusively establishes, due execution of Ex. D.9. The evidence on record also conclusively establishes that Lingaiah was not suffering from any disability, much less, mental disability, so as to affect the execution of the document. The only disability from which he was suffering was, his hand was shaking and therefore he has affixed his LTM. The said fact is mentioned in Ex. D.9 itself and the evidence of all witnesses is consistent with this particular fact. Therefore, we do not see any merit in this contention.

Probably realizing this fact, the learned Counsel for the appellant made an attempt to challenge the execution of the gift deed by pointing out certain discrepancies at the time of registration of the document. What was pointed out was, D.W.2 in his evidence has stated that not only he and Shanmukhaiah attested Ex. D.9, but they also went to the sub-Registrar''s office and have affixed their signatures. In this context, it was pointed out, behind page 5 where identification of the executant is made before the sub-Registrar, the identification is made by D.W.2 and one person by name Chandra, and the name of Shanmukhaiah is conspicuously missing and therefore it was contended, evidence of D.W.2 cannot be accepted. Countering his argument, the learned Counsel for the defendants have pointed out, on the left side of that page Lingaiah has affixed his LTM, thereafter the donees have affixed their signatures accepting the gift and D.W.2 and K.V. Shanmukhaiah have affixed their signatures as attesting witnesses. After the execution of the document, the document was presented for registration before the Sub-Registrar on 16-07-2007 at 5.03 p.m. After it was presented, the LTM of all the donees and their photographs are taken in the Sub-Registrar''s office and Sub-Registrar has affixed his signature on 16-07-2007. Similarly, behind page No. 3, both D.W.2 and K.V. Shanmukhaiah have affixed their signatures which is also accepted by the sub-Registrar by affixing his signature. As the executant of the document was not present before the sub-Registrar, his photo could not be taken. Therefore the said document was kept pending registration. It is thereafter, on a request by the donees probably, the sub-Registrar went to the house of Lingaiah, at item No. 2 of the schedule property by about 5.40 p.m. and the LTM of Lingaiah is taken. His photograph is affixed. The sub-Registrar has affixed his signature on the photograph. At that stage, D.W.2 has also identified Lingaiah and probably as Shanmukhaiah was not available at that point of time, they have taken the signature of one Chandra, who has identified the signature. Their signatures were also identified by the sub-Registrar. It is thereafter on 18-07-2007, the document was registered.

The learned Counsel for the appellant relied on Sec. 31 of the Registration Act to contend, when a document is registered in the house of the executor, an obligation is cast on him to accept the document for registration, which is to be evidenced by necessary endorsement on the said document, which is conspicuously missing in this case. In order to appreciate his contention, we have looked into Sec. 31 of the Registration Act, 1908. It provides, in ordinary cases, the registration or deposit of documents under the Registration Act, 1908, shall be made only at the office of the officer authorized to accept the same for registration or deposit. Therefore as a rule, the document to be registered has to be presented at the sub-Registrar''s office to the sub-Registrar, who has to receive such document for registration or in the case of wills, which are given to him for deposit, he should receive or accept these deposits. The proviso to Sec. 31 carves out an exception, which provides, the sub-Registrar may on special cause being shown, attend at the residence of any person desiring to present a document for registration or to deposit a will, and accept for registration or deposit such document or will. The proviso does not contemplate that after acceptance of the document for registration, he should make an endorsement on the document itself. That is not the requirement of law.

The Karnataka Registration Rules, 1956, prescribe a procedure for attendance of the sub-Registrar at private residence. Rule 56 provides, an application for attendance at a private residence shall be in writing and shall, in all possible cases, be signed by the person seeking the concession though it may be presented by any person to the Registering Officer''. Rule 57 provides, ''a requisition for attendance at a private residence shall be complied with, as early as possible. If compliance would interfere with the regular business of the office or involve the closing of the office and if the case does not fall under the proviso to Section 31 of the Act, a commission should if practicable, be issued. Every such attendance by a sub-Registrar or under his orders shall be reported to the Registrar within 24 hours''. Rule 58 provides, ''a Registrar may attend at a private residence situated within the limits of his district even though it may not lie within the sub-district under his immediate charge; but a Sub-Registrar shall not proceed out of his sub-district for the purpose''.

A reading of Sec. 31 of the Act with Rules 56, 57 and 58 of the Rules make it clear, if a registration is to be done at the residence of the executant, it is mandatory that a request has to be made to the sub-Registrar in writing, requesting him to come to the residence, possibly giving reasons why executant is unable to come to the sub-Registrar''s Office. The very fact that law recognizes, in ordinary cases an executant to come to a sub-Registrar''s office and a proviso is made for the sub-Registrar to go to the residence of the executor shows, law recognizes such a contingency. Therefore no adverse inference can be drawn against the executant. If any such adverse inference is sought and on that ground if the registration is held to be not lawful, then this proviso becomes otiose. Therefore, the contention that the executant did not attend the sub-Registrar''s office, sub-Registrar himself had to come to his residence, shows his ill health or that he was not in a sound state of mind to execute a document, is without any substance.

In the instant case, Lingaiah was aged 90 years. The evidence on record shows, sub-Registrar''s Office is in the first floor. His hand was shaking. One week prior to his death, he was able to move around. But he could not climb the stairs. Therefore, a request was made to the sub-Registrar to come to his residence for the purpose of registration and the evidence on record shows, the sub-Registrar did come to the residence of Lingaiah, he has affixed his signature by the side of his LTM, he has also affixed his signature on the photograph of Lingaiah and after two persons identified the signature of Lingaiah, accepting the same, he has also affixed his signature. The aforesaid provisions do not contemplate sub-Registrar making any other endorsement of accepting the document for registration, as sought to be made out by the learned Counsel for the appellant. Merely because at the time of identifying the LTM before the Sub-Registrar, the attesting witness who have attested the LTM of Lingaiah at the time of execution, who also went to the sub-Registrar''s office at the time of presentation of the document, have not affixed their signatures at the time of identifying the LTM before the sub-Registrar, would not in any way affect the validity of the deed. Probably at the time when the Registrar came for registration, Shanmukhaiah was not present there, another person has affixed his signature. But two persons have identified the LTM of Lingaiah before the sub-Registrar. Being convinced, sub-Registrar has affixed his signature. He affixed his signature on the photograph after examining Lingaiah in his residence. In the light of these undisputed facts, it is difficult to hold that there is any flaw in the registration so as to affect the validity of the deed.

Now the entire material on record clearly discloses, Lingaiah though did not inherit any ancestral property, by doing hard work as a contractor, he had constructed many palatial buildings in the city of Mysore. By doing hard work he had acquired properties. He was a self made man. Even in the fag end of his life, he had not handed over the management of his properties to his sons. He was collecting rents. He was operating Bank accounts and the entire house was running according to his wishes. He has performed not only the marriage of his daughters, but also the marriage of his grand children. Evidence on record shows, he got a valuable site granted in favour of the plaintiff herein. It only shows, how with a sense of responsibility he has seen to it that all his family members are well placed in life and lead a happy life. But in the end, when it came to disposing of his properties, he had taken the assistance of his Advocate and Chartered Accountant. He himself was an educated man and a very intelligent, shrewd businessman. The way the properties are distributed by way of gift clearly shows that as his two sons had predeceased him, he saw to it that no injustice is done to these branches and he has given properties to the widows of his sons. Not only he gave property to his sons and the widows of his predeceased sons, he also gave properties to his grandsons. Though he had a daughter by name L. Yashoda, who is the fifth defendant, expressly it is stated in the gift deed that he did not give his property to her as her interest is otherwise taken care of. Similarly, if we look into the gift deed, we notice that there is no mention of he having given any of his properties to any of his grand daughters. It is quite understandable, he was a person 90 years old, brought up in an atmosphere of male dominated society. As he has got all his grand daughters married and provided for their living, he did not want to give his properties to his grand daughters and he gave out his properties to his sons and grand sons. As he was the absolute owner of the property, he had the right to choose to whom to give his property. Merely because grand daughters are not given any property, it cannot be said that the bequest is in any way vitiated. The evidence on record shows, neither the daughters, daughter''s daughter or daughters of her sons, except the plaintiff, has challenged the gift deed. All of them have accepted the same. In fact, in this background, it is interesting to note that the plaintiff is not able to get on with her own brother and mother. During the life time of her grandfather, she has filed a suit for partition in respect of her father''s property challenging the will in which some other properties were bequeathed exclusively to the widow and the son. Probably, after the death of the grandfather, she has preferred this suit to claim a share not in the property of Lingaiah, but in the property allotted to the share of her mother and brother. As she came to Court with a specific plea that she has a right to have the property by birth as it is a joint family property and as she failed to establish the same, she cannot now contend, even if it is the self acquired property of her grandfather, she is entitled to a share. Her grandfather during his life time has bequeathed the properties in favour of the donees according to his choice. In that view of the matter, we do not see any infirmity in the judgment passed by the trial Court.

For the aforesaid reasons, we do not find any ground to interfere with the well considered order passed by the trial Court, which is based on legal evidence. Hence, the appeal is dismissed.

Parties to bear their own costs.