JUDGMENT Tapan Kumar Dutt, J. 1. This Court has heard the learned Advocates for the respective parties. The facts of the case, briefly, are as follows: The plaintiff-respondent filed a Suit being Title Suit No. 118 of 1990 in the Court of the learned Munsif at Raigunge against the defendants-appellants and their father Chandra Kanta Debsharma alias Sarkar. In such suit the plaintiff-respondent prayed for a declaration of his right, title and interest in the suit property and for a declaration that the deed of gift executed by the plaintiffs mother on 27.6.1988 and registered on 12.10.1988 in favour of the defendant Nos. 2 to 5 is illegal, not acted upon, void and not binding upon the plaintiff-respondent. The plaintiff-respondent also prayed for decree for perpetual injunction restraining the defendants-appellants from dispossessing the plaintiff from the suit property. 2. The said Suit was contested by the defendant No. 1 by filing a written statement. Defendant Nos. 2 to 5 are the sons of defendant No. 1. The learned Trial Court by his judgment and decree dated 31.3.1992 dismissed the said Suit upon finding inter alia that admittedly the suit property belonged to Laxmi Kanta Barman and on his death his wife Pramila Bala Roy and his two sons i.e. the plaintiff and his brother, Bejoy Barman, inherited the suit property in equal shares but Bejoy Barman died a bachelor. Thus, Pramila Bala Roy became the owner of 2/3rd share in the property left by Laxmi Kanta Barman. There is no dispute with regard to the fact that the plaintiff ultimately had 1/3rd share and Pramila Bala Barman had 2/3rd share in the property left by Laxmi Kanta Barman. The main question involved in the suit was with regard to the legality and validity of the said deed of gift dated 27.6.1988 (registered on 12.10.1988). The learned Trial Court found that the certified copy of the deed of gift was adduced in evidence as Exbt. 'B' and that the defendants-appellants had called for the original deed from the registration office concerned but the original deed was not produced by the said office. It was found by the learned Trial Court that D.Ws. 5 and 6 are the attesting witnesses to the deed and that the deed was executed by Pramila Bala though Pramila Bala was an illiterate lady. The learned Trial Court found from evidence of D.Ws. It was found by the learned Trial Court that D.Ws. 5 and 6 are the attesting witnesses to the deed and that the deed was executed by Pramila Bala though Pramila Bala was an illiterate lady. The learned Trial Court found from evidence of D.Ws. 5 and 6 that they had no animosity to either of the parties and that there is nothing to disbelieve them and that the said witnesses have deposed that the deed was read over and explained to Pramila Bala and in their presence Pramila Bala executed the gift deed. The learned Trial Court found that the said Pramila Bala was duly identified and the learned Trial Court was satisfied with regard to the execution of the deed. The plaintiff's allegation that the gift deed was vitiated by fraud and/or misrepresentation was not believed by the learned Trial Court and the learned Trial Court ultimately dismissed the Suit. The plaintiff has alleged that the defendant No. 1 (Chandra Kanta Debsharma alias Sarkar) had misrepresented to the said Pramila Bala that for the purpose of obtaining a bank loan, certain documents were required to be executed and under the cover of such misrepresentation, the defendant No. 1 ultimately got a gift deed executed by said Pramila Bala and such act on the part of the defendant No. 1 was a fraudulent act. This story did not find any favour with the learned Trial Court. 3. The plaintiff-respondent filed a Title Appeal No. 65 of 1992 challenging the JUDGMENT and decree passed by the learned Trial Court and such Title Appeal was placed before the learned Assistant District Judge, Uttar Dinajpur at Raigunge and ultimately, the said learned Lower Appellate Court by its JUDGMENT and decree dated 25.8.1993 allowed the said Title Appeal by setting aside the JUDGMENT and decreed passed by the learned Trial Court. The defendants have preferred the instant second appeal challenging the said JUDGMENT and decree of the learned Lower Appellate Court. During the pendency of the second appeal the defendant No. 1 died and since his sons (defendant Nos. 2 to 5) were already on record, the name of the defendant No. 1 has been deleted. The defendant Nos. 2 to 5 appellants have proceeded with the appeal. During the pendency of the second appeal the defendant No. 1 died and since his sons (defendant Nos. 2 to 5) were already on record, the name of the defendant No. 1 has been deleted. The defendant Nos. 2 to 5 appellants have proceeded with the appeal. The following substantial questions of law were formulated for the purpose of hearing the appeal: i) Whether or not the learned Lower Appellate Court committed an error in not coming to any finding with regard to the case of the plaintiff/respondent that the defendant No. 1 had obtained the deed of gift from the plaintiffs mother by way of misrepresentation and by way of committing fraud when the onus was upon the plaintiff to prove such allegations of misrepresentation and/or fraud. ii) Whether or not the learned Lower Appellate Court committed an error in holding that there is no reason to believe that the plaintiffs mother voluntarily gifted the suit property to the defendant Nos. 2 to 5 on the basis of surmises and conjectures as it appears that while coming to such finding that the learned Lower Appellate Court took into consideration the fact that the defendant No. 1's legally married wife and also defendant Nos. 2 to 5 cannot be believed to have allowed the defendant No. 1 to marry plaintiffs mother for the second time and that the alleged marriage of the defendant No. 1 and the plaintiffs mother and the execution and registration of the alleged deed of gift and the death of the plaintiffs mother took place within three years. iii) Whether or not the learned Lower Appellate Court erred in drawing adverse inference against the execution and registration of the alleged deed of gift as it could not be produced even when the Sub-Registration Office was summoned to that effect when the Xerox copy of the said deed of gift was adduced in evidence and the formal proof of the said deed of gift was alleged to have been waived by the other side. iv) Whether or not the Learned Lower Appellate Court committed an error in holding that the deed of gift in question cannot be said to have been acted upon in absence of evidence that the plaintiffs mother delivered possession of her share in the suit property to the defendant Nos. 2 to 5 on the face of recitals in the deed in question. 2 to 5 on the face of recitals in the deed in question. 4. The learned Lower Appellate Court was in agreement with the learned Trial Court to the effect that Pramila Bala had ultimately 2/3rd share and the plaintiff (Pramila's son) had 1/3rd share in the property left by Laxmi Kanta Barman. The learned Lower Appellate Court laid much emphasis on the point that there is no evidence to prove that Pramila Bala delivered possession of the suit property to the defendant Nos. 2 to 5. It appears from the records that there is hardly any scope to raise a dispute with regard to the execution of the said gift deed by which Pramila Bala had gifted the suit property to the defendant Nos. 2 to 5. 5. The learned Advocate for the respondent also does not dispute that the left thumb impressions appearing on the gift deed are that of Pramila Bala but his contention is, as is the case made out by the plaintiff, that such execution of the gift deed was made owing to the misrepresentation and the fraudulent act on the part of the defendant No. 1. It appears from the records that Pramila Bala died on 5.3.1990 and the gift deed was registered on 12.10.1988. The learned Lower Appellate Court came to the finding that Pramila Bala came to the house of D.W. 1 in the year 1988 and there was a love affair between Pramila Bala and the defendant No. 1. It further appears from the records that the defendant No. 1 was not a stranger to the family of Pramila Bala. The learned Lower Appellate Court took into consideration the fact that the defendant No. 1 had his wife namely, Snehalata Sarkar, and it is difficult to believe that Snehalata Sarkar will allow the defendant No. 1 to marry Pramila Bala since a case was made out by the defendants that the defendant No. 1 had ultimately married Pramila Bala. The learned Lower Appellate Court also considered the fact that Pramila Bala came to the house of the defendant No. 1 in 1988 and the gift deed was executed in 1988 and thereafter Pramila Bala died in 1990 and since so many things happened within a short span of three years, it is difficult to believe that Pramila Bala voluntarily gifted the suit property to the defendant Nos. 2 to 5. 6. 2 to 5. 6. This Court is of the view that laying much emphasis on the fact that such things happened within a span of three years for the purpose of finding out whether the gift deed is valid or not is not the right approach. The fact remains that the learned Lower Appellate Court has made a finding that love affair between Pramila Bala and defendant No. 1 began to develop from the time when Pramila Bala started to live in the house of the defendant No. 1. It is not unusual to make a gift when Pramila Bala was in love with defendant No. 1 as found by the learned Lower Appellate Court. Of course, the gift was made by Pramila Bala to the sons of the defendant No. 1. The other consideration which weighed with the learned Lower Appellate Court that Snehalata Sarkar could not have permitted the defendant No. 1 to marry Pramila Bala is also based on surmises and conjectures since it is not known exactly what kind of relationship existed between the defendant No. 1 and his wife. That apart, even if there was no legal marriage between the defendant No. 1 and Pramila Bala, there was no bar under the law for Pramila Bala to gift her property to the sons of the defendant No. 1. The plaintiff was required to prove whether the gift was vitiated by misrepresentation and/or fraud. The learned Lower Appellate Court also was not correct in laying much emphasis on the fact that the original gift deed was not produced in Court when the defendants-appellants had made attempt to call for such gift deed from the registration office but ultimately for no fault of the defendants-appellants, the said deed could not be produced. The learned Lower Appellate Court has found that a xerox copy of the gift deed was adduced in evidence but it has to be noted that such evidence was adduced without any objection being raised in this regard by the plaintiff. That apart, the defendants-appellants have filed an application under Order 41 Rule 27 of the Code of Civil Procedure in this Court for adducing additional evidence by way of producing the original gift deed in question in evidence. That apart, the defendants-appellants have filed an application under Order 41 Rule 27 of the Code of Civil Procedure in this Court for adducing additional evidence by way of producing the original gift deed in question in evidence. The learned Lower Appellate Court made a finding that L.T.I. of Pramila Bala has not been taken on the 2nd page and 3rd page of the deed of gift in question. It appears from the xerox copy of the original deed annexed to the application under Order 41 Rule 27 of the Code of Civil Procedure that the L.T.I. of Pramila Bala was obtained in all the pages of the gift deed. The learned Lower Appellate Court erred in drawing adverse inference from the fact that the original deed could not be produced in evidence by the defendants-appellants. 7. Learned Advocate for the defendants-appellants has rightly contended that the execution and registration of the gift deed cannot be disputed in the facts and circumstances of the case. He contended that the main story pleaded by the plaintiff-respondent was that the defendant No. 1 by misrepresentation and by an act of fraud had obtained the left thumb impression of the said Pramila Bala on the gift deed when Pramila Bala was told that the documents on which Pramila Bala put her L.T.Is. were documents for the purpose of obtaining bank loan. Learned Advocate for the defendants-appellants submits that there is nothing on record to suggest that Pramila Bala was in need of any money at the relevant point of time and, as such, there was no occasion for Pramila Bala to obtain any bank loan. The story of bank loan, according to the said learned Advocate, is a myth. Records reveal that there is nothing in evidence at all to prove, excepting the statement made by the plaintiff himself, that Pramila Bala had any occasion to obtain any bank loan. Learned Advocate for the defendants-appellants referred to the deed of gift where it has been mentioned that the donees will be entitled to record their names in the official records and go on enjoying the gifted property and the possession was given to the defendants-appellants by the said Pramila Bala. 8. He referred to the decision reported at (2007) 13 SCC 210 (Asokan vs. Lakshmikutty and Ors.). 8. He referred to the decision reported at (2007) 13 SCC 210 (Asokan vs. Lakshmikutty and Ors.). The Hon'ble Court in the said report observed that the Transfer of Property Act does not prescribe any particular mode of acceptance and it is the circumstances attending to the transaction which may be relevant for determining the question and there may be various means to prove acceptance of a gift. The Hon'ble Court held that the document may be handed over to a donee, which in a given situation may also amount to a valid acceptance. The Hon'ble Court further observed that even a silence may sometimes indicate acceptance and it is not necessary to prove any overt act in respect thereof as an express acceptance is not necessary for completing the transaction of gift. The Hon'ble Court relied upon another reported case in Paragraph-21 of the said reports wherein it was held that it is settled law that where the deed of gift itself recites that the donor has given possession of the properties gifted to the donee, such a recital is binding on the heirs of the donor and it is an admission binding on the donor and those claiming under him. 9. In the instant case this Court finds that the recitals in the gift deed indicate that the possession was handed over by Pramila Bala to the defendant Nos. 2 to 5 and the defendant Nos. 2 to 5 were given the right to record their names in the official records and go on enjoying the gifted property. 10. The said learned Advocate cited another decision reported at (2009) 6 SCC 160 (Abdul Rahim and Ors. vs. Sk. Abdul Zabar and Ors.). In the said reports the Hon'ble Court found that the deed of gift was a registered one and it contained a clear and unambiguous declaration of total divestment of property. The Hon'ble Court was pleased to observe that a registered document carries with it a presumption that it was validly executed and it is for the party questioning the genuineness of the transaction to show that in law the transaction was not valid. 11. The said learned Advocate cited another decision reported at (2000) 1 SCC 434 (Ishwar Dass Jain (Dead) through LRS. vs. Sohan Lal (Dead) by LRS.). 11. The said learned Advocate cited another decision reported at (2000) 1 SCC 434 (Ishwar Dass Jain (Dead) through LRS. vs. Sohan Lal (Dead) by LRS.). The Hon'ble Court was pleased to observe in the said reports that there is a presumption of the correctness of the endorsement made by the Sub-Registrar under section 58 of the Registration Act and it can be rebutted only by strong evidence to the contrary. Reference was made by the said learned Advocate to the decision reported at: AIR 1976 SC 163 (Afsar Shaikh and Anr. vs. Soleman Bibi & Ors.) wherein it was held that allegations like 'undue influence', 'fraud' or 'misrepresentation' are required to be separately pleaded, with specificity, particularity and precision and a general allegation is not sufficient. 12. In the instant case this Court finds that apart from a general allegation that the defendant No. 1 took Pramila Bala to a certain place for obtaining bank loan is devoid of any particulars. There is no disclosure of any reason as to why Pramila Bala wanted a bank loan and there is also no disclosure of any particulars of any attending circumstances under which Pramila Bala allegedly went with the defendant No. 1 for the purpose of obtaining any bank loan. 13. The said learned Advocate cited another decision reported at AIR 1967 SC 1395 (Kuppuswami Chettiar vs. A.S.P.A. Arumugam Chettiar and Anr.) where it was observed that a registered instrument releasing the right, title and interest of the releasor without consideration may operate as a transfer by way of gift, if the document clearly shows an intention to effect the transfer and is signed by or on behalf of the releasor and attested by at least two witnesses. The said learned Advocate cited another decision reported at 30 CWN 497 (Panchanan Sarkar vs. Rani Basanta Kumari Dasi) in support of his submission that where the evidence as to possession is conflicting the Courts may rely on the presumption that possession follows title. 14. In the instant case there is no dispute that Pramila Bala had 2/3rd share in the property left by Laxmi Kanta Barman and Pramila Bala has stated in the deed that she has given possession to the donees. 15. 14. In the instant case there is no dispute that Pramila Bala had 2/3rd share in the property left by Laxmi Kanta Barman and Pramila Bala has stated in the deed that she has given possession to the donees. 15. The said learned Advocate cited another decision reported at AIR 1965 SC 1008 (The Municipal Corporation of Greater Bombay vs. Lala Pandham and Ors.) in support of his contention that for the purpose of removing a lacuna in the evidence, this Court should allow the application under Order 41 Rule 27 of the Code of Civil Procedure. He cited another decision reported at AIR 1986 Cal 403 (M/s. Hindusthan Petroleum Corporation Ltd. vs. M/s. R.P. Agarwalla & Brothers (Pvt.) Ltd.) in support of his application under Order 41 Rule 27 of the Code of Civil Code. He cited another decision reported at AIR 2003 SC 4060 (Ganpat Mahadeo Gawand & Ors. vs. Shrinivas M. Pendse (Dead) by LRs. & Ors.) and relied upon the observation of the Hon'ble Court that once it is found that the gift was accepted and the truth of the contents of the gift deed was admitted, clinching evidence is required to establish that the donor still retained possession with him and the document was not acted upon. 16. Of course, in the instant case the plaintiff did not admit the gift in question but the fact remains that the plaintiff could not dispute that the gift deed was executed by Pramila Bala and it was also subsequently registered. The gift deed is in possession of the defendants. Therefore, Pramila Bala must have handed over the deed gift to the defendants after executing the same and having the same registered. The decision reported at (2007) 13 SCC 210 (Supra) and also the decision reported at (2009) 6 SCC 160 (supra) may be looked into in this regard. 17. Learned Advocate for the plaintiff-respondent contended that this Court should not interfere with the finding of fact made by the learned Lower Appellate Court and he referred to a decision reported at AIR 2011 SC 1340 (Ganeshi (D) through L.Rs. & Ors. vs. Ashok & Anr.) for such purpose. In the instant case this Court finds that the learned Lower Appellate Court took into consideration certain things which were not true. Learned Lower Appellate Court found that the L.T.Is. & Ors. vs. Ashok & Anr.) for such purpose. In the instant case this Court finds that the learned Lower Appellate Court took into consideration certain things which were not true. Learned Lower Appellate Court found that the L.T.Is. were missing on the 2nd and 3rd page of the deed of gift. This is not true since it appears from the Annexure to the application under Order 41 Rule 27 of the Code of Civil Procedure, as indicated above, that Pramila Bala had put her L.T.Is. on all the pages of the gift deed. The learned Lower Appellate Court made an adverse inference from the fact that the original deed could not be produced by the defendants. Unfortunately, the learned Lower Appellate Court omitted to notice the fact that Exbt. 'B' was marked as an Exbt. without any objection and formal proof of the same was waived. That apart, it appears from the application under Order 41 Rule 27 of the Code of Civil Procedure that the original gift deed was filed in connection with certain criminal proceeding which was pending at the relevant point of time and, thus, the original deed of gift could not be produced in evidence in the Suit. Learned Lower Appellate Court ignored the presumption which arose in case of registered document particularly when the D.Ws. 5 and 6 have deposed that the deed of gift was read over and explained to Pramila Bala and such evidence remained unshaken in spite of cross-examination. 18. Learned Advocate for the respondent submitted that on a previous occasion in 1971 the said defendant No. 1 had actively participated in getting some property of the said Pramila Bala and her sons to be sold to a third party and, thus, it shows that Pramila Bala was in need of money and the defendant No. 1 was acquainted with Pramila Bala since long. Here again, learned Advocate for the respondent could not show anything from the record to suggest that Pramila Bala was in need of money in 1971, so much so, that a bank loan would become necessary. But in any event, long time passed since 1971 before 1988 arrived. There is nothing on record to suggest that in the year 1988 Pramila Bala was in dire necessity to obtain a bank loan. But in any event, long time passed since 1971 before 1988 arrived. There is nothing on record to suggest that in the year 1988 Pramila Bala was in dire necessity to obtain a bank loan. The said learned Advocate referred to another JUDGMENT reported at AIR 1976 SC 163 (Afsar Shaikh & Anr. vs. Soleman Bibi & Ors.) in support of this submission that the Second Appeal is competent only on the ground of error in law and procedure and not on the ground of error of a question of fact. 19. In the present case learned Lower Appellate Court failed to appreciate the law as it stands. The principle of law laid down in (2007) 13 SCC 210 (Supra) and (2009) 6 SCC 160 (Supra) was not taken into consideration by the learned Lower Appellate Court while deciding the Title Appeal. The learned Lower Appellate Court laid too much emphasis on the question as to whether or not possession was delivered by Pramila Bala to the defendant Nos. 2 to 5 but in the decision reported at (2007) 13 SCC 210 (Supra), the Hon'ble Supreme Court was pleased to observe that handing over the document to the donee in a given situation may also amount to a valid acceptance. In (2009) 6 SCC 160 (Supra), the Hon'ble Supreme Court was pleased to observe that a registered document carries with it a presumption that it was validly executed. The learned Lower Appellate Court did not take into consideration such principle of law and, as such, it can be said that the learned Lower Appellate Court committed an error in law. 20. Learned Advocate for the respondent cited another decision reported at AIR 1963 SC 1203 (Mst. Kharbuja Kuer vs. Jangbahadur Rai & Ors.) and referred to Paragraph 6 of the said reports i.e. the portion which deals with the position of law with regard to the burden of proof in a case of pardahnashin lady. In the said reports the Hon'ble Supreme Court was pleased to observe that the burden of proof shall always rest upon the person who seeks to sustain the transaction entered into with a pardahnashin lady to establish that the document was entered into by her after clearly understanding the nature of transaction and it should be established that it was not only her physical act but also her mental act. The Hon'ble Supreme Court was further pleased to observe that the burden can be discharged not only by proving that the document was explained to her and that she understood but also by other evidence direct and circumstantial. Even if the aforesaid legal principle is applied to the facts of the instant case, it will be difficult to discard the gift deed as an invalid one for the simple reason that it will appear from the records, i.e. the evidence of D.Ws. 5 and 6, which remains unshaken, that the deed was read over and explained to Pramila Bala coupled with the finding of the learned Lower Appellate Court that Pramila Bala was in love with the defendant No. 1 at a certain stage of her life and, therefore, there is nothing; unusual for Pramila Bala to have executed a gift deed in favour of the sons of the defendant No. 1. The legality or otherwise of the alleged marriage between Pramila Bala and defendant No. 1 cannot affect the validity of the gift deed if it has been executed and registered in accordance with law. The plaintiff-respondent has failed to prove the allegation of fraud and/or misrepresentation - firstly, on the ground that it has failed to pass the test of specificity, particularity and precision in the pleadings and the plaintiff has also failed to adduce any proper evidence in support of the allegation of fraud and/or misrepresentation. 21. Learned Advocate for the respondent cited another decision reported at AIR 1994 Ori 113 (Sri Kishore Ray Thakur Bije vs. Smt. Basanti Kr. Das & Ors.) in support of his contention that unless a document is read over and explained to an illiterate lady when she was expected to execute, the said execution becomes vitiated and is not a valid one. 22. In view of the discussions already made above, no further discussion is necessary with regard to the said reports separately. 23. He cited another decision reported at (2008) 1 Cal. LT. 299 (HC) (Banibrata Das vs. The State of West Bengal & Ors.) in support of his contention that misrepresentation itself amounts to fraud and innocent misrepresentation may also give right to a party to claim relief against fraud. 23. He cited another decision reported at (2008) 1 Cal. LT. 299 (HC) (Banibrata Das vs. The State of West Bengal & Ors.) in support of his contention that misrepresentation itself amounts to fraud and innocent misrepresentation may also give right to a party to claim relief against fraud. As already discussed above, the plaintiff has failed to bring on record appropriate and proper pleadings in support of his general allegation of fraud and/or misrepresentation and has also not been able to adduce any particular and proper evidence in support of the general allegation. 24. In view of the discussions made above, this Court is of the view that the learned Lower Appellate Court committed an error in allowing the Title Appeal and setting aside the JUDGMENT and decree passed by the learned Trial Court. The defendants-appellants have made an application under Order 41 Rule 27 of the Code of Civil Procedure for adducing in evidence the original gift deed in question. In the facts and circumstances of the case, the application has to be allowed and is allowed. 25. The impugned JUDGMENT and decree passed by the learned Lower Appellate Court is set aside and the matter is remanded back to the learned Lower Appellate Court concerned to enable the defendants-appellants herein to produce the said original deed of gift in question in evidence with liberty to the plaintiff-respondent to cross-examine the defendants-appellants in this regard. In the event, the original deed of gift in question is produced in evidence by and on behalf of the defendants-appellants, the learned Lower Appellate Court shall take evidence on the same and thereafter dispose of the Title Appeal concerned in accordance with law keeping in mind the observations and/or findings made by this Court as indicated above. The learned Lower Appellate Court shall try to dispose of the Title Appeal after remand as expeditiously as possible. 26. The Appeal stands disposed of. 27. There will be no order as to costs. 28. The lower Court records be sent down to the learned Court concerned immediately. Urgent xerox certified copy of this JUDGMENT, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.