HONOURABLE MR. JUSTICE v. NATH ORAL ORDER
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.100 of 2011 ====================================================== 1. Birendra Bhagat. 2. Lal Badan Bhagat. Both Sons of Late Kanhyee Bhagat. Both resident of village- Mira Tola, Pargana-Sipah, P.S.- Manghagarh, District- Gopalganj-Defendants-Appellants-Appellants. 3. Sampati Devi, Daughter of Late Kanhyee Bhagat and wife of Daroga Bhagat, Resident of Village- Dabaur Shbuddin tola, P.O.- Bhagwanpur in the District-Gopalganj. 4. Phuljhari Devi, Daughter of Late Kanhyee Bhagat and wife of Umesh Bhagat, Resident of Village-Goniar, P.O.-Uolana Raj, P.S.- thambej,
Facts
District- Gopalganj-Defendants-Appellants-Apepllants. Versus 1. Most Basanti, Wife of Late Sarbjeet Bhagat. 2. Sanichari Daughter of Late Sarbajeet Bhagat. Both residents of village- Mira Tola, Pargana-Sipah, P.S.- Manghagarh, District- Gopalganj-Plaintiffs-Respondents 1st set-Respondent 1st set. 3. Radha Sah, Son of Mahant Sah. 4. Rameshwar Prasad, Son of Late Mangal Prasad. 5. Md. Unif, Son of Asgar Mian. 6. Takdir Mian, Son of Saket Mian. All resident of village- Mira Tola, Pargana-Sipah, P.S.- Manghagarh, District- Gopalganj-Purchaser(Intervener) Respondents 2nd Respondent 2nd set. set-
Legal Reasoning
In the present case there is no dispute with regard to the recitals or contents of the gift deed. To the contrary the legal existence of the gift deed is itself in question and both the courts below have decided the issue in favour of the plaintiff. 10. For the aforesaid premised reasons, there is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Nitesh/- (V. Nath, J)
Arguments
====================================================== Appearance : For the Appellant/s : Mr. Ashutosh Jha, Adv. For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 6 06-02-2013 Heard Mr. Ashutosh Jha, the learned counsel appearing on 2 Patna High Court SA No.100 of 2011 (6) dt.06-02-2013 2 / 6 behalf of the appellants. The learned counsel for the plaintiff- respondents is also present. 2. The defendants are the appellants in this appeal assailing the judgment and decree of affirmance passed by the appellate court below upholding the decree passed in favour of the plaintiff in the suit declaring the deed of gift in favour of the defendants as forged, fabricated and inoperative document and further granting the relief for partition of the suit property. 3. The plaintiff (since deceased, through L.R.) has filed the suit for declaration that the deed of gift dated 25.04.1991 is forged, fabricated, inoperative and void document and not binding upon the plaintiff and further relief for partition of ½ share in the suit properties has also been sought. As the factual matrix would unveil, the plaintiff and the defendants belong to one family and the defendants are the brother and brother’s son of the plaintiff. The plaintiff’s case is that he is joint with the defendants and as he was in urgent need of money for performing his daughter’s marriage, his brother Kanhayee Bhagat (defendant no.3) obtained his L.T.I. on some blank papers by impressing upon the plaintiff that the execution of documents was required for arranging loan from the Government. It is the case of the plaintiff that using the said blank papers with the L.T.I. of the plaintiff, the deed of gift 3 Patna High Court SA No.100 of 2011 (6) dt.06-02-2013 3 / 6 dated 25.04.91 has been fabricated in their favour by the defendants. The plaintiff has also pleaded that after getting the knowledge of the fraud and dishonesty of the defendants, the said deed of gift was cancelled by executing the cancellation deed on 19.11.91. The plaintiff has also asserted that the defendants never came in possession over the land in pursuance to the gift deed. 4. The defendants have contested the claim of the plaintiffs asserting that the gift deed in question has been validly executed by the plaintiff in favour of the defendants with his free will and consent. The allegations of fraud and fabrication have been specifically denied. The defendants thus, have claimed their title over the entire suit land and prayed for the dismissal of the suit. 5. The trial court, after scanning the pleadings and evidence of the parties, has come to the finding that the deed of gift is forged, fabricated and inoperative document and has held the plaintiff to be entitled to a decree for partition of his ½ share in the suit property. The appellate court, on reappraisal of evidence of the parties, has also concurred with the findings of the trial court and has come to the conclusion that the gift deed in question has been brought into existence by misrepresentation of facts and is forged, fabricated and inoperative document. 6. Mr. Ashutosh Jha, the learned counsel appearing on 4 Patna High Court SA No.100 of 2011 (6) dt.06-02-2013 4 / 6 behalf of the appellants has submitted that the question of interpretation of the document i.e. deed of gift is involved in the present lis, and therefore, according to the well settled principle, a substantial question of law arises for consideration. The learned counsel for the appellants has thus made the prayer for calling for the lower court records at this stage itself for the purpose of appreciating the question of interpretation of the contents of the gift deed under challenge. It has also been urged by the learned counsel that both the courts below have failed to interpret the contents of the gift deed and have thereby committed error of law. Mr. Jha has also expressed the readiness of the appellants to deposit special messenger cost for calling for the lower court records. Lastly it has also been submitted that there is chance of settlement of the dispute between the parties and therefore the necessary indulgence be granted. 7. The learned counsel for the plaintiff-respondents, however, has categorically denied the chance of settlement of the dispute between the parties and has prayed for dismissal of this appeal. 8. As is evincible from the judgments of both the courts below as well as from the submissions of the learned counsel for the parties that the gift deed dated 25.04.91 said to have been 5 Patna High Court SA No.100 of 2011 (6) dt.06-02-2013 5 / 6 executed by the plaintiffs in favour of the defendants is the prime issue between the parties. The plaintiff Saryu Bhagat has assailed the said gift deed mainly on the ground that the same had been fabricated by the defendants after obtaining his L.T.I. on blank papers by misrepresenting the facts and on the pretext of arranging the loan. The defendants have supported the valid execution of the said gift deed. Both the courts below after elaborate analysis of the oral and documentary evidence on record have come to the finding that the gift deed has been fabricated by the defendants after playing fraud and misrepresenting the facts to the plaintiff. The legality and propriety of these findings of fact have not been questioned on behalf of the appellants but the submission has been advanced that the dispute in fact centers around the interpretation of the contents of the gift deed in question. This submission is clearly misconceived. 9. It is clearly discernible from the facts of the case that there is no dispute with regard to the contents of the gift deed rather the dispute, in sum and substance, is with regard to the validity of the gift deed itself. The learned counsel for the appellants has failed to point out the manner in which the interpretation of the document i.e. the gift deed in question would obviate the binding effect of the concurrent finding of fact 6 Patna High Court SA No.100 of 2011 (6) dt.06-02-2013 6 / 6 establishing the gift deed in question to be forged, fabricated and inoperative document. Even otherwise also the Apex Court in the case of Hero Vinoth (Minor) Vs. Seshammal 2006(5) SCC 545 has laid down that the inference or appreciation of fact emerging from recitals or contents of a document is a question of fact but the legal effect of the terms of documents or construction of a document involving application of any principle of law is a question of law.