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2009 DIGILAW 662 (CAL)

Pradip Kumar Das v. Chandi Charan Das

2009-08-26

TAPAN MUKHERJEE

body2009
Judgment : TAPAN MUKHERJEE, J (1) This appeal at the instance of the defendant is directed against the judgment and decree passed by the Learned First Appellate Court in Title Appeal No. 57 of 1996 reversing the judgment and decree of the Learned Trial Court in T.S. 546 of 1988. Plaintiffs came up with the case that the father of the plaintiff Rakhal Chandra Das, now deceased, was the owner of the suit building and he died leaving behind three sons, three daughters and wife and defendant the youngest brother of the plaintiff. Rakhal Chandra Das used to reside in the suit building as well as the tenanted house at 9A, Rajendra Sen Lane, Calcutta 6 particularly in course of his illness for getting the facility of doctors. The defendant having fatory nearby the said rented house used to spend most of the time of the day with the said Rakhal Chandra Das and the plaintiffs used to visit their father on every alternative day. The physical condition of Rakhal was deteriorating day by day and since April 1988 his condition became critical and he had no capacity to rise from his bed and the plaintiff no.1 talked to his father for the last time on 1.5.88. The defendant began to misbehave with the plaintiffs and other members of the family including the sisters and mother and asked the plaintiffs to vacate the suit building posing himself as owner of the building. The plaintiffs caused search through their advocate and learnt that the suit property was transferred to the defendant-respondent by way of a deed of gift dated 16.6.88. The said deed is a manufactured deed and the said deed was procured by practising fraud on Rakhal who was absolutely in coma stage and had no power of understanding. The valuation of the property in the impugned deed of gift was much less than the existing market price. The plaintiffs (respondents) accordingly filed suit challenging the said deed of gift. (2) The defendant-appellant contended that the said deed of gift was executed voluntarily by Rakhal Chandra Das while he was in full sense in presence of all the witnesses after understanding the contents of the documents and he has right, title and interest in the suit property. The plaintiffs (respondents) accordingly filed suit challenging the said deed of gift. (2) The defendant-appellant contended that the said deed of gift was executed voluntarily by Rakhal Chandra Das while he was in full sense in presence of all the witnesses after understanding the contents of the documents and he has right, title and interest in the suit property. (3) Learned Trial Court held that the deed of gift is genuine and Rakhal Das voluntarily executed the deed of gift in favour of the appellant and the suit was liable to be dismissed and accordingly, the suit was dismissed by the Learned Trial Court. Being aggrieved by the said judgment the plaintiffs preferred appeal in which it was decided that the deed of gift was not genuine and the same is void and illegal and accordingly Ld. Appellate Court decreed the suit. (4) Being aggrieved by the said judgment and decree passed in the First Appeal the defendant has preferred this Second Appeal. (5) It has been contended by the learned lawyer for the appellant that Rakhal Chandra Das was not an illiterate person but he was an educated person. He executed the deed of gift voluntarily after understanding the effect of the said deed and the plaintiff failed to discharge his onus in proving that the deed was the product of fraud and Rakhal Chandra Das had no physical or mental ability to execute that deed and fraud and undue influence was exercised upon him. (6) It has been further contended by the learned lawyer for the appellant that the Learned Trial Court dealt with the matter in its true perspective and came to the finding that the deed of gift was out come of the spontaneous act of Rakhal Chandra Das and same was genuine and Learned Trial Court rightly dismissed the suit. (7) Learned lawyer for the appellant has further contended that Learned Appellate Court wrongly relied upon the unprobated Will in order to show the intention that Rakhal wanted to distribute the same to all his legal heirs and the said un-probated Will could not have been considered by the Learned First Appellate Court as the said un-probated deed did not find its place in the plaint. (8) Learned First Appellate Court should have held that in absence of any evidence of doctor about the physical state of the donor and also in the teeth of absence of dependable evidence regarding invalidity of the deed Learned First Appellate Court was wrong in holding that the deed of gift is void, illegal and not binding on the plaintiffs and others. (9) Learned counsel for the respondents has supported the judgment and decree of the Learned First Appellate Court contending that deed of gift is void, illegal and the same was not executed consciously by the executant who was on his death-bed being afflicted with serious old age ailment and cancer and who lost physical and mental capacity to execute the deed of gift. (10) It was further contended by the learned lawyer for the respondents that long before deed of gift Will was executed by the donor giving all his properties to all the heirs and this reflects that the donor had no mind to give the suit property to one of his sons but to all. The finding of the Learned Trial Court is not based on proper appreciation of the evidence on record and accordingly the judgment of Learned First Appellate Court is sustainable. The following substantial questions of law arise in the present appeal : i) Did Learned First Appellate Court substantially err in law in allowing the appeal on a misconception of law inasmuch as the court of appeal below has committed error of law in writing the judgment of reversal without meeting the circumstances taken into account by the Trial Court in favour of the defendant/appellant? ii) Did Learned First Appellate Court substantially commit error in law in allowing the appeal on a misconception of law inasmuch as there cannot be any presumption of undue influence in the case of gift to a son although made during the donors illness and a few days before his death when the nature of illness and mental conditions have not been proved by the plaintiffs/respondents by producing doctor as witness or by producing any doctors certificate in support of their case? Admittedly, the father of parties Rakhal Chandra Das now deceased was the original owner of the suit property. Admittedly, the father of parties Rakhal Chandra Das now deceased was the original owner of the suit property. It is further undisputed that the deceased met the doom of his life leaving widow, three sons and three daughters and the defendant/appellant is the youngest son of the deceased. The appellant claims the suit property on the basis of the deed of gift alleged to have been executed by deceased Rakhal Chandra Das on 14.6.88 immediately before the demise of his father. (11) The plaintiffs/respondents have challenged the validity of the said deed contending that before his death the deceased used to reside in the tenanted house in 9A, Rajendra Sen Lane, Calcutta where the defendant had a factory and defendant used to spend there major portion of the day and the deceased was suffering from cancer and he had no physical and mental capacity to execute the deed of gift in question and the said deed is a fake one and even if it is assumed that the deceased executed that deed the deceased was not in mental position to execute the deed and the same was procured by practising fraud upon the deceased who was absolutely in coma stage. (12) The defendant/appellant has contended that the said deed of gift is voluntary and the deceased was in perfect physical and mental state to execute the said deed and the said deed was executed by the deceased consciously after understanding the contents and the said deed of gift is binding. The said deed is a valid deed having binding effect upon the parties. Exhibit Ka is the said deed of gift executed by Rakhal Chandra Das. (13) It appears that the said deed was executed by executant in putting signature in English. The onus is upon the plaintiffs to prove that the said deed of gift is not a genuine deed of gift and the same is a fake one and same was obtained by way of exercising fraud upon Rakhal Chandra Das. In the plaint the plaintiffs have taken alternative cases about the signature of his father in the said deed. The onus is upon the plaintiffs to prove that the said deed of gift is not a genuine deed of gift and the same is a fake one and same was obtained by way of exercising fraud upon Rakhal Chandra Das. In the plaint the plaintiffs have taken alternative cases about the signature of his father in the said deed. In para 9 of the plaint it has been stated that apprehending death of their father the defendant manufactured the deed purported to have been executed in his favour and the plaintiffs have every reason to believe that the said purported signature appearing on the deed is a forged one. Then plaintiffs have stated in the alternative that even if the same is the signature of the father of the plaintiffs the signature was taken in the paper about which the late father of the plaintiffs had no idea at all and a gigantic fraud was committed upon him during the period when he was in absolute coma stage and had neither any power to follow the contents of the deed nor the capacity to execute or register the same. (14) In his evidence P.W.1 has stated that the signature of the executant on the backside of the first page and also in the bottom portion of the last page of the deed are not of his father. But the plaintiffs have not attempted to take the aid of the Handwriting expert in order to show that those signatures appearing in the deed alleged to be of his father are not his fathers signatures. To the contrary, the mother of the plaintiff, P.W.3 has admitted her signature in the deed. She contended that on the previous day of the death of her husband Pradip obtained her signature in a document written in English. Admittedly the deceased died on 18.6.88 at 8:30 P.M. The deed was presented for registration on 14.6.88. Deed was registered on Commission on 16.6.88. (15) P.W.3 has admitted that the Registrar came to their house for registration and at the time herself, her three daughters and Dr. Kumkum Sinha were present at the house. She has further stated that as per instruction of the Registrar she signed the said deed before the Registrar and the Registrar left her house immediately after getting her signature. (15) P.W.3 has admitted that the Registrar came to their house for registration and at the time herself, her three daughters and Dr. Kumkum Sinha were present at the house. She has further stated that as per instruction of the Registrar she signed the said deed before the Registrar and the Registrar left her house immediately after getting her signature. So the claim of P.W.3 that on the previous day of the death of her husband Pradip obtained her signature in a document written in English on representing that there was trouble in his factory is not worthy of credence. There was no signature on the previous day of the death of the deceased i.e., on 17.6.88. The fact remains that the mother of the parties, the best witness put her signature in the deed as a witness. It further appears that Reba Bhattacharya daughter of the deceased put her signature on the said deed. (16) P.W.3 has admitted that that she is not aware of the text of conversation between Registrar and her husband. The plaintiffs have not produced the said doctors who treated the deceased as alleged in support of their case. Though the plaintiffs admitted that their mother and sisters will depose in this case and he will not summon them and if the court wants they will depose, yet the mother has been examined as P.W.3. (17) P.W.1 has admitted that he has good relation with his sisters and mother. So, the plaintiffs could have examined that said sister Reba Bhattacharya who could throw much light on the validity of the deed but the plaintiffs have not examined Reba Bhattacharya for the reasons unexplained. Non-examination of Reba Bhattacharya as the witness in the case raises adverse inference against the case of the plaintiffs of fraudulent execution of the deed of gift. (18) It is admitted by P.W.3 that doctor Krishna Kumar Sinha is dead and so we lack his evidence. (19) The plaintiff no.1 as P.W.1 has stated that his father had no sense from 1st or 2nd May till 18th June 1988 and during this time his father had no capacity to put signature or to understand anything. But P.W.1 has admitted that on 1st or 2nd May he went to see his father for the last time. (19) The plaintiff no.1 as P.W.1 has stated that his father had no sense from 1st or 2nd May till 18th June 1988 and during this time his father had no capacity to put signature or to understand anything. But P.W.1 has admitted that on 1st or 2nd May he went to see his father for the last time. So the evidence of P.W.1 is that his father has no sense or he had no power of understanding or no physical condition to put his signature is not based on personal knowledge of P.W.1 and the same cannot be relied. It is admitted by P.W.1 that Dr. E.N. Ghosh, Dr. Asish Mitra, Dr. Boral treated his father at premises No.9A but none of those doctors has been examined in this case by the plaintiffs for the reasons unexplained. Even no medical papers have been produced in order to show that plaintiffs father was under the treatment of the said doctors and he was suffering from cancer. The death certificate shows that the deceased died out of cardiac failure. Except their mother, other witness is P.W.2 against whom the defendant filed a suit on the ground of default for non-payment of rent. P.W.2 stated that in the last part on his life Rakhal Chandra Das was not in a position to speak well. His physical and mental condition was bad. In the cross-examinations she says that in 1988 she went to see Rakhal babu the deceased in the month of January and February. Further she has admitted that after February 1988 she did not go to Rakhal Babu and from February till the death of Rakhal Babu she had no knowledge about the physical and mental state of Rakhal Babu. So, the evidence of P.W.2 as to the physical and mental capacity of Rakhal Babu at the time of execution of a deed of gift on 14.6.08 and registration of the said deed on 16.6.88 is of no aid to the plaintiffs. (20) Though P.W.1 has tried to claim that the signature of the executant alleged to be of Rakhal Babu is not of his father yet his mother P.W.2 who was a witness to the deed has not denied the signature of her husband in the said deed. P.W.3 has stated that she cannot say why her husbands signature was obtained in the said deed. P.W.3 has stated that she cannot say why her husbands signature was obtained in the said deed. It is relevant to take note of the fact that though not pleaded in the plaint the plaintiffs examined P.W.3 for introducing a new case that her husband executed a Will. P.W.3 has stated that her husband made settlement in respect of his room in the said deed and the deed was executed 3 years prior to the execution of the deed of gift. As the said deed has not been pleaded in the plaint so the evidence in respect of the said deed or the Will cannot be considered. (21) P.W.1 has submitted that defendant is in possession of the suit house after the death of his father. So the said deed of gift has been acted upon. The defendant has produced the letter addressed to Sujit Dey by Kamalabala Das in order to show that her mother wrote that letter informing that her husband made a deed of gift in respect of the suit premises in favour of the defendant out of his free will and consent and the signature of the P.W.3 in the said letter has been marked exhibit. Affidavit sworn by Kamalabala Das in Title Suit No.546 of 1988 in order to show that his mother admitted in the affidavit that he gifted the suit property to the defendant out of his free will has been produced. Of course, the entire affidavit has not been marked exhibit only the signatures of P.W.3 have been proved. Another document Exbt. Ga certified copy of the writ petition being C.O.17300 (w) of 1988 has been produced by the defendant which contains the clear admission of the mother of the parties that her husband Rakhal Chandra Das during life time voluntarily and willfully executed the deed of gift in respect of suit premises and defendant is the absolute owner of the said premises and he has been realising rent from the tenant apart from residing and carrying on business in the said premises and her other sons the present plaintiffs were threatening Pradip and his workers with dire consequences and were trying to get signature of their mother in blank paper. (22) The contention of P.W.3, the mother is that she did not file any case in the High Court against Chandi cannot be relied and the said statement is a tutored statement. It is admitted that the deceased Rakhal Chandra Das used to live in the tenanted house at 9A, Rajendra Sen Lane and he lived there up to his death. It appears from the evidence of P.W.1 that the defendant has got a factory besides the said house and he used to reside in the said house at Rajendra Sen Lane for most of the time and the plaintiffs did not reside in the said house. P.W.1 used to see his father in the evening at the close of his work at the interval of one or two days. (23) It is undisputed that the deceased breathed last 18.6.1988. P.W.1 has admitted that on 1st or 2nd May he went to see his father for the last time. So it appears that the defendant/appellant used to look after his father and he used to attend him for most of the time in the day and the plaintiffs used to see their father occasionally and for a considerable time they did not go to the suit house to see their father. So, obviously when the defendant was attending his father daily and looking after him it was natural and probable for the deceased Rakhal Chandra Das to give the suit property to the defendant. The recital in the gift-deed lends support to the fact that defendant served the deceased. In the deed of gift the recital is that donee being youngest son of the donor served the donor well and the donor was desirous of making a gift of the property to the donee out of natural love and affection and diverse good causes which the donor did not want to ventilate. So it can be said that the deed of gift was executed by the donor and the genuineness of the said deed of gift cannot be doubted. So it can be said that the deed of gift was executed by the donor and the genuineness of the said deed of gift cannot be doubted. (24) Considering the evidence on record facts and circumstances of this case and judging the case on the anvil of probabilities I am constrained to hold that the plaintiffs have failed to prove that deed of gift in question in respect of the suit property was obtained by defendant by exercising fraud upon the deceased and that the deceased did not execute the said deed voluntarily and that he had no physical and mental condition to execute such deed and to understand the contents of the said deed and that the said deed is not valid deed. To the contrary, it is established that the said deed of gift was executed by the deceased father of the parties Rakhal Chandra Das voluntarily and he executed the said deed out of his free will understanding the import of the said deed of gift. I am constrained to hold that the Learned Trial Court has rightly held in proper appreciation of the evidence on record and facts and circumstances of the case that the plaintiffs failed to prove that the said deed of gift is false and illegal and the same is not binding upon the heirs of Rakhal Chandra Das and the plaintiffs could not prove the case and they were not entitled to get decree as prayed for and the Learned Trial Court rightly dismissed the suit. (25) To the contrary, Learned First Appellate Court has not appreciated the evidence correctly. Learned First Appellate Court has wrongly held that execution of the impugned deed of gift has been effectively challenged by the plaintiffs and he has misplaced the onus of proof upon the defendant. (26) Learned First Appellate Court considered the matter as to execution of Will by the deceased which is not pleaded in the plaint quite illegally as it is settled law that the party cannot travel beyond his pleadings and evidence relating to the matter which is not pleaded in the pleading cannot be considered. The deed of gift was produced at the time of cross-examination of P.W.3 who admitted the said deed of gift. The deed of gift was produced at the time of cross-examination of P.W.3 who admitted the said deed of gift. It must be held that the Learned First Appellate Court substantially erred in law in allowing the appeal on a misconception of law inasmuch as the court of appeal below has committed error of law in writing the judgment of reversal without meeting the circumstances taken into account by the Trial Court in favour of the defendant/appellant. Learned First Appellate Court also committed substantial error in law in allowing the appeal on a misconception of law inasmuch as there cannot be any presumption in the case of gift to a son although made during the donors illness and a few days before his death and the nature of illness and mental conditions were not proved by the plaintiffs/respondents by producing cogent evidence. The judgment and order of the Learned First Appellate Court are thus not sustainable in law and the same are liable to be set aside and the appeal has to be allowed. (27) Memo of appeal is sufficiently stamped. (28) The appeal is allowed on contest. The judgment and decree passed by the Learned First Appellate Court in Title Appeal No. 57 of 1996 are hereby set aside and those of the Learned Trial Court are restored. In the circumstances, I make no order as to costs. Urgent xerox certified copy, if applied for, be given to the parties as expeditiously as possible.