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2012 DIGILAW 921 (CAL)

Asesh Kumar Seth v. Ashim Kumar Seth

2012-10-04

TARUN KUMAR GUPTA

body2012
Judgment Tarun Kumar Gupra, J. 1. This second appeal is directed against judgment and decree dated 29th January, 2000 passed in O.C. Appeal No.49 of 1997 by learned Additional District Judge, Malda reversing the judgment and decree dated 30th April, 1997 passed by learned Assistant District Judge, Malda in O.C. suit No.167 of 1993. 2. The respondent as plaintiff filed said suit for declaration of a deed of gift relating to ‘ka’ schedule property as void with an alternative prayer for partition. His case, in short, is that ‘ka’ schedule property originally belonged to one Pran Mohan Das, father of Brajabala who was grand mother of the parties of the suit. It is further case that on death of Pran Mohan Das suit property devolved upon his heirs namely Balaram and Kanai whose names were recorded in C.S.R.O.R. As per last wish of Pran Mohan Das they gifted the suit property to Brajabala as a dowry in her marriage. Brajabala died while his son Brojesh, the father of the parties, was only one year old and thereafter Brojesh was brought up in his maternal uncle’s house. Brojesh was the owner of the ‘ka’ schedule property as only heir of Brajabal. After death of Brojesh in 1981 the suit property devolved upon his three sons namely Asesh (defendant No.1), Asim (plaintiff), Adhir (defendant No.2), daughter Ashoka (defendant No.3) and wife Bimala each having 1/5th share therein. At the time of drawing up a family settlement in 1981 it came out that the suit property was wrongly recorded in R.S.R.O.R. in the name of their mother Bimalabala. Taking advantage of said wrong entry in the record of right Bimalabala executed one deed of gift being No. 7127 in favour of Adhir (defendant No.2) on 20.07.1993. Said deed was also vitiated by fraud and undue influence. At the relevant time Bimalabala was not also physically and mentally fit to execute said deed of gift. Bimalabala had only 1/5th share in said suit property being one of the legal heirs of her husband Brojesh. It is further case that no partition was effected in between the co-sharers and hence the plaintiff is entitled to get a decree for declaration that the aforesaid deed of gift was void and not binding upon him and in the alternative a decree of partition. 3. It is further case that no partition was effected in between the co-sharers and hence the plaintiff is entitled to get a decree for declaration that the aforesaid deed of gift was void and not binding upon him and in the alternative a decree of partition. 3. The defendants contested the suit by filing a joint written statement denying material allegations of the plaint and contending inter alia that the ‘ka’ schedule property belonged to their mother Bimalabala in whose name it was correctly recorded in the R. S. record of right as well as in the L. R. record of right and that she voluntarily executed the deed of gift in favour of defendant No.2 Adhir within the knowledge of the plaintiff and that the suit was liable to be dismissed with cost. 4. Learned Trial Court framed several issues and after contested hearing dismissed the suit by observing that the plaintiff failed to establish that his father Brojesh was the owner of the suit property or that Bimalabala was not the owner of the same or that the impugned deed of gift was vitiated by fraud and/or undue influence. 5. However, in the appeal preferred by the respondent plaintiff learned Lower Appellate Court allowed the same by setting aside the judgment and decree of learned Trial Court by observing that Bimalabala had not 16 annas share in the suit property and as such had no authority to gift the same to her son Adhir (defendant No.2) and that the impugned deed of gift was also vitiated by coercion and fraud. 6. The appeal was heard on the following substantial question of law. (1) Whether learned Lower Appellate Court substantially erred in law by observing that Bimalabala had not 16 annas title to the suit property when in one hand she was found to be exercising all the rights of a lawful owner being in possession of the same which reflected in R.S.R.O.R. and the subsequent record of right when, on the other hand, plaintiff failed to adduce any convincing evidence to show that the suit property legally transferred to Brajabala or that Brajabala and thereafter her son Brojesh owned and possessed the same. (2) Whether learned Lower Appellate Court substantially erred in law by holding that the impugned deed of gift dated 20.07.1993 through deed No.7127 executed by Bimalabala in favour of defendant No.2 Adhir vitiated by fraud and undue influence in the absence of specific pleadings as well as evidence to that effect. 7. Both sides admitted that suit property originally belonged to Pran Mohan Das and that on his death (long before C.S. operation) the same devolved upon Balaram and Kanai whose names were recorded in C.S.R.O.R. It was the specific case of the respondent plaintiff that as per wish of Pran Mohan Das since deceased Balaram and Kanai gifted the suit property to Brajabala as dowry in her marriage through an unregistered document. No such written document came before the Court on the plea that it was lost. No evidence was put forward to show that the value of the suit property was too low to require registration for transfer of title to Brajabala. Apart from that no document whatsoever could be filed to show exercise of right of ownership either by Brajabala or by her son Brojesh over the suit property. On the other hand, Ext.B series shows settlement of suit land in favour of Bimalabala showing payment of rents. It was also argued that Balaram and Kanai settled suit land to Bimala orally in terms of Section 117 of the Transfer of Property Act and that since long Bimala continued to possess the same on payment of rent and by cultivation through Bargadars. Admittedly, both R.S.R.O.R. and L.R.R.O.R. stood in the name of Bimalabala, the mother of the parties. 8. Mr. Debotosh Khan, learned counsel for the respondent plaintiff referred case laws reported in AIR 1997 Supreme Court page 2181 (State of Himachal Pradesh vs. Keshav Ram and others) and 1989 (1) CLJ page 447 (Amulya Ratan Ghorai vs. Secretary of Sri Sri Ram Krishna Paramahansa Sebak) to impress upon this Court that entry in the revenue record cannot form any basis of title. The above proposition of law is not disputed. But those entries in the record of rights have presumptive value of correctness until rebutted. Admittedly, those entries in the record of rights shows possession and the same by itself can neither create nor extinguish any title. The above proposition of law is not disputed. But those entries in the record of rights have presumptive value of correctness until rebutted. Admittedly, those entries in the record of rights shows possession and the same by itself can neither create nor extinguish any title. But when a person is found to be in possession of the property for long on payment of rent and the successive record of rights were standing in his name then it has to be presumed that ownership followed said title in absence of any document of title of any other person over said land. I have already stated that the plaintiff has miserably failed to produce any document whatsoever to show either title or possession over the suit property either by Brajabala on the alleged strength of unregistered deed of gift or by her son Brojesh being her heir and legal representative. It appears from Ext.B series that rents were paid by Bimala and that sometimes those payments were made by her husband Brojesh. As Brojesh himself tendered those payments it is palpable that Brojesh was aware about ownership of said property by Bimala. Learned Lower Appellate Court failed to take note of these facts in their proper perspective. As a result, he came to a palpable wrong decision that Brojesh was the original owner of the suit property through her mother Brajabala and that Bimalabala was not 16 annas’ owner of the same. 9. It is true that one draft of family settlement relating to suit property and other properties bearing signature of mother Bimalabala and three sons was produced, but it did not bear the signature of defendant No.3 Ashoka and it was not also acted upon. Under these circumstances this document by itself can neither create title in favour of Brojesh through Brajabala nor can extinguish the title in favour of Bimalabala which was backed by convincing documents showing long possession of the suit property by her on payment of rents. 10. Another facet of the plaintiff’s case is that deed of gift dated 20.07.1993 executed by Bimalabala in favour of defendant No.2 Adhir being deed No.7127 was vitiated by fraud and undue influence as Bimalabala was very ill at that time. 10. Another facet of the plaintiff’s case is that deed of gift dated 20.07.1993 executed by Bimalabala in favour of defendant No.2 Adhir being deed No.7127 was vitiated by fraud and undue influence as Bimalabala was very ill at that time. It is a settled principle of law that the person alleging fraud and/or undue influence in the matter of execution of a registered document has to prove the same by producing cogent evidence. In this connection learned counsel for the respondent plaintiff submits that no specific issue on this score was framed by learned Trial Court and as such the finding of learned Trial Court that the impugned deed was not vitiated by fraud and/or undue influence was not sustainable in law. Admittedly, plaintiff has made an allegation of fraud and undue influence in the matter of execution of the impugned deed of gift being No.7127 dated 20.07.1993. There was denial of the same by the defendants in their written statement. Both the parties adduced evidence, both oral and documentary, on that score. When parties knew their respective cases and led evidence in support of the same then it matters little whether a specific issue was framed or not. As such, non-framing of a specific issue had no bearing in this case. learned Trial Court meticulously examined the evidence, both oral and documentary, adduced by the parties on this score and came to a finding of fact that the impugned deed No.7127 dated 20.07.1993 executed by Bimalabala in favour of defendant No.2 Adhir was not vitiated by fraud or undue influence, and that Bimalabala was in a position to execute the document after knowing its contents. On scrutiny of the materials on record it appears that learned Trial Court took note of execution of as many as four deed of gifts by Bimalabala on the same date i.e., 20.07.1993 and that one of the deeds of gifts namely deed No.7128 (Ext.A2) was executed by Bimalabala in favour of present respondent/plaintiff Ashim Kumar Seth by way of gifting some amount of land. Curiously enough no allegation was made about those other deeds by stating that Bimalabala was not physically and mentally fit to execute those other deeds of gifts. Curiously enough no allegation was made about those other deeds by stating that Bimalabala was not physically and mentally fit to execute those other deeds of gifts. During argument learned counsel for the respondent plaintiff submits that the deed writer (D.W.2) deposed that the deed was written at the registry office and that one attesting witness (D.W.3) deposed that the deed was written at the Puratoni house of Bimalabala and these contradictions proved that it was a collusive deed vitiated by fraud and undue influence. It appears that learned Lower Appellate Court only on this ground held that the impugned deed of gift was vitiated by fraud and undue influence. It appears from the evidence of the deed writer (D.W.2) that he stated that without perusing the deed it was not possible for him to give any answer about those deeds written by him and later on he deposed from memory that those deeds were written in the registry office. As such, much reliance should not be placed on said evidence of the deed writer (D.W.2). Even if it is accepted that there is some discrepancy to that effect even then said discrepancy alone cannot establish that impugned deed of gift was vitiated by fraud and undue influence. 11. In view of the discussions as made above, I am of opinion that the learned Lower Appellate Court substantially erred in law by reversing the well reasoned judgment of learned Trial Court without applying correct legal tests. 12. As a result, the appeal is hereby allowed on contest. 13. The impugned judgment and decree of learned Lower Appellate Court are hereby set aside by restoring the judgment and decree of learned Trial Court. 14. However, I pass no order as to costs. 15. Send down Lower Court records along with a copy of this judgment to the Lower Court at the earliest. 16. Urgent photostat certified copy of this judgment be supplied to the learned counsel of the party/parties, if applied for.