Raghunath Devi vs Samad Gashru

Shiam Krishna Dar, Member.

(1) This appeal raises a question as to the validity of a deed of gift dated Magh 10, 1994, executed by Dewan Chet Ram, the Respondent No. 2,

in favour of his wife, the appellant.

(2) The subjectmatter of the gift is 419 Kannals 13 Marias of joint land situated in Rakh Asham, Tesil Raramulla. Notwithsanding the gift the

respondent No. 2, continued in possession of the property and on Har 17, 2002, he executed a usufructuary mortgage of the property which was the subjectmatter of the gift in favour of the respondent No. 1 which later on was compulsorily registered at the instance of respondent No. 1.

(3) Since then the two titles, one under the gift and the other under the mortgage, have been in controversy. The appellant first initiated mutation

proceedings and obtained a mutation order in her favour and subsequently instituted a suit for a declaration of title and for an injunction restraining the respondents from interfering with her rights and possession which suit, however, was dismissed for default of prosecution. The respondent No.

1 in his turn, instituted a suit to enforce the mortgage out of which this appeal has arisen, in which the validity of both the gift and of the mortgage came in controversy again. Both the Courts below have found in favour of the mortgage and against the gift. The validity of the mortgage has been concluded by the findings of fact arrived at by the Courts below and does not arise for the consideration of the Board. The validity of the gift,

however, still remains to be finally determined in this appeal.

(4) The Courts below have avoided the gift upon 2 grounds firstly that it is not proved that the document was executed and attested as required by

law and, secondly that it was a sham transaction and was never intended to be acted upon.

(5) The gift was made by a registered instrument which, on the face of it, bears the attestation of two witnesses. In the pleadings the gift was denied

in a general way but no specific plea was taken in regard to the attestation of the instrument. At the trial the scribe of the deed and one attesting witness was called who fully proved the execution of the document but the evidence was silent in regard to its attestation. The Courts below relying upon the absence of any evidence in regard to the attestation of the deed have held its attestation not proved. But as no specific plea was taken in the pleadings in regard to the attestation of the document, the appellant was not bound to call any evidence in regard to this attestation and the rejection of the deed of gift on this ground might not be justified.

(6) But the other finding of the Courts below, namely that the gift represents a sham transaction presents a more serious difficulty in the way of the

appellant. The gift was made by husband in favour of his wife. Notwithstanding the gift the husband remained in possession and enjoyment of the property and after 8 years' possession made a mortgage of it for a valuable consideration on a representation that he was its full owner and, as

such, competent to mortgage. The wife did not obtain mutation till after the mortgage was made.

(7) Relying upon these facts the Courts below have come to the conclusion that the transaction was a sham one not intended to be acted upon.

The motive of the transaction is somewhat obscure and immediate possession of the property is not necessary for the validity of a gift. But the question whether a particular transaction is a sham one or not, is a question of fact and in such a matter the Board Is bound by the concurrent findings of fact arrived at by the Courts below.

(8) In order to escape this difficulty the appellant contends that in the pleadings no specific plea was taken in regard to the sham nature of the

transaction and no definite issue #as raised about it and a finding of fact based upon a matter which has not been the subject of a pleading and of a proper issue is not binding upon the Board. It is not absolutely clear that there is any real variation between the pleading and the proof in this case.

But in any case, the appellant had sufficient notice of this attack upon the gift and she made no complaint in the Courts below that she had been taken by surprise and it is not possible at this stage of the proceedings to accept this contention and either to set aside the finding of the Courts below absolutely or to remit the case for fresh investigation.

(9) The Board will, therefore, humbly advise His Highness to dismiss this appeal with costs. D. H. Appeal dismissed.