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2013 DIGILAW 39 (CAL)

Ranu Bhandari v. Nilima Das

2013-01-24

TAPEN SEN

body2013
JUDGMENT : Tapen Sen, J. This Appeal arises out of the Judgment and Decree dated 20.12.2007 passed by Sri Surjendu Biswas, Addl. District Judge, 3rd Court at Alipore, Dist. 24 parganas in Title Appeal No. 273 of 1999 reversing the Judgment and Decree dated 13.8.1999 passed by Sri S.K. Halder, learned Civil Judge, Sr. Division, 6th Court at Alipore in Title Suit No. 75 of 1995. 2. Title Suit No. 75 of 1995 was filed by the Appellant/Plaintiff, Renu Bhandari against Krishna Chandra Das, her father praying for a Decree of Eviction evicting him from the Suit property as well as a Decree for Damages @ Rs. 50/- per Diem w.e.f. 1.10.1995 till he was evicted. She also prayed for a Decree for costs, injunction etc. According to the Plaintiff/Appellant, the suit property was gifted to her by her father, the Defendant (being the predecessor-in-interest of the Respondents herein), by a registered Deed of Gift dated 14.9.1992. She got delivery of khas possession but, was however requested by the Defendant that till he was able to make alternative arrangements, his wife and his unmarried daughter be allowed to live in the suit premises. He however told her that he would be making alternative arrangements shortly. The Plaintiff gave details regarding the gift by stating that she had rendered financial help to the defendant and his wife towards their maintenance since he had no source of income. Moreover, the Defendant, his wife and his son were entangled in a murder case and at that time, the Plaintiff had paid all litigation costs and therefore, the Defendant, out of gratitude, gifted the suit property to the Plaintiff. The Plaintiff, upon being requested by the Defendant as above, allowed him to live in the suit premises along with his wife and unmarried daughter for a period of 6 months on the assurance given by him that he would make alternative arrangements for his residence. Accordingly, the defendant started living in the suit premises on leave and licence basis but without paying any licence fee to the Plaintiff from September, 1992 and he was allowed to live on till March, 1993. Accordingly, the defendant started living in the suit premises on leave and licence basis but without paying any licence fee to the Plaintiff from September, 1992 and he was allowed to live on till March, 1993. On the expiry of March, 1993, the Plaintiff asked the defendant to stand by his commitments and deliver vacant possession of the suit premises to the Plaintiff by shifting elsewhere but the defendant requested her for some more time and therefore, the Plaintiff again allowed him to stay on for a further period of 6 months on the assurance that by September, 1993 he will vacate the suit premises and would not request for any further extension. The Plaintiff/Appellant stated that since the defendant was her father, she, out of pity, allowed him to live in the suit premises along with his wife and unmarried daughter on leave and licence without any licence fee upto September 1993. After the expiry of 30.9.1993, when the Plaintiff asked the defendant to shift and give delivery of possession, the Plaintiff, to her surprise, again wanted some more time. 3. The Plaintiff, realising the ill motive of the defendant, revoked the licence on 1.10.1993 and asked him to vacate the suit premises. The defendant however, did not vacate and therefore, continued to occupy the premises as a trespasser w.e.f. 1.10.1993. The Plaintiff/Appellant therefore, filed the aforesaid Title Suit on 5.9.1995 praying for a Decree of Eviction as stated above. 4. The defendant contested the Suit and denied all allegations made in the plaint. He contended, inter alia, that the Suit premises is a three-storied building and that the entire 2nd floor consisting of two rooms, Varanda one "Thakur ghar" and roof are occupied by the Defendant. The ground floor and the 1st floor are under occupation of tenants. He also contended that the plaintiff had no possession in the suit building. He also denied that the suit property was gifted to the plaintiff. The defendant further contended that the plaintiff, being his married daughter and taking advantage of his old age, had obtained the Deed of Gift beyond his will. He was not aware about the execution of the said Deed of Gift, which was fraudulent and was obtained by suppressing material facts. According to him, the said Deed of Gift was executed without his knowledge and consent. He was not aware about the execution of the said Deed of Gift, which was fraudulent and was obtained by suppressing material facts. According to him, the said Deed of Gift was executed without his knowledge and consent. He denied that he had ever promised to vacate the premises or that the plaintiff had rendered any financial help to him in meeting litigation costs. He contended that the first wife of his son had committed suicide because of which, there was the said litigation. At the relevant time, his son was an inspector in the Peerless General Finance and Investment Company and used to earn enough money. His son had borne the entire litigation costs. The criminal case had ended sometime in the month of May 1988 and the defendant and his family members had been acquitted. It was further contended that he had never taken any financial help from the plaintiff. His further contention was that the allegation that he was allowed to live in the suit premises with his wife and unmarried daughter for 6 months, was not true at all. According to him, he was occupying his portion of the suit building by his own right as owner of the building and not as a trespasser. The Title Suit was not maintainable and the defendant also contended that he had cancelled the Deed of Gift dated 14.9.1992 by virtue of a Deed of Cancellation dated 1.4.1997. The defendant further contended that his signature and those of his wife and daughter on the Deed of Gift were made on the understanding that the document was a Power of Attorney and that on the date when the said Deed was executed, his son was seriously ill and had come from Ranchi and had signed the Deed on the request of the Plaintiff without going through the contents of the document. The defendant's contention in short, was that he had not executed any Deed of Gift and that he had not gifted the suit premises to the plaintiff. 5. The learned Civil Judge, Sr. Division Decreed the Suit in favour of the Appellant by his judgment dated 13.8.1999. While dealing with the said judgment, it is noticed that Ram Gopal Bhandari, the husband of the Plaintiff was examined as PW 1. 5. The learned Civil Judge, Sr. Division Decreed the Suit in favour of the Appellant by his judgment dated 13.8.1999. While dealing with the said judgment, it is noticed that Ram Gopal Bhandari, the husband of the Plaintiff was examined as PW 1. From his evidence, it appeared to the learned Court that the suit property, previously known as 40/1, Ram Kamal Street, had subsequently been renumbered as Premises No. 40/1B Ram Kamal Street According to his evidence, the suit property initially belonged to the defendant but on the strength of the Deed of Gift executed on 14.9.1992, the plaintiff became the owner in respect of the said building together with the suit premises and delivery of khas possession of the suit property was also given to the plaintiff partly directly and partly, through tenant. According to PW 1, the defendant had signed the Deed of Gift. His wife and daughter had also signed the said Deed of Gift as confirming parties. The suit property had been mutated in her name and she paid taxes in respect of the suit property and had also paid gift tax. He also stated that the plaintiff used to render financial assistance to the defendant as maintenance of the family. It was his contention that the defendant and his family members got involved in a criminal case due to the unnatural death of the wife of his son and the plaintiff therefore, used to pay money to the defendant for proceeding with the case. As a mark of gratitude, the defendant had gifted the property to the plaintiff. He repeated whatever was said in the plaint regarding the defendant being allowed to continue in the suit premises for sometime on the assurance that he would vacate the premises but, having not done so, the plaintiff revoked the licence and filed the Suit. Krishna Chandra Das, the defendant, was examined as DW 1. He was the defendant and had denied the contentions of the plaintiff with regard to the Deed of Gift etc. His contention, as a witness, inter alia, was that he had subsequently executed a Deed of Cancellation cancelling the Deed of Gift. He had however admitted that the plaintiff had given him sufficient money when the criminal case was going on against him. DW 2 is Sudipta Kumar Das alias Bablu. His contention, as a witness, inter alia, was that he had subsequently executed a Deed of Cancellation cancelling the Deed of Gift. He had however admitted that the plaintiff had given him sufficient money when the criminal case was going on against him. DW 2 is Sudipta Kumar Das alias Bablu. He is the son of the defendant and from his evidence, it appeared to the learned Trial Court that his parents, his unmarried sister and he, were occupying the entire suit house except the portion which was under the occupation of the tenants. He had deposed that his father did not execute the Deed of Gift and that he had not received any financial help with regard to the criminal case. He further contended that on 14.9.1992 he had come back from Ranchi while he was suffering from malaria and on the same day, the plaintiff had produced a typed Deed saying that it was a Power of Attorney and requested him to sign thereon. According to him, he signed the said document without going through the contents thereof. Nilima Das, the wife of the defendant and mother of the plaintiff, was examined as DW 3. She has stated that the suit property initially belonged to her father-in-law and on his death, the property had devolved upon her husband, the defendant, by inheritance. She had stated that the plaintiff managed to obtain their signatures on a Deed saying that the same was a Power of Attorney. The plaintiff and her husband told her to execute the said Power of Attorney so that they could manage the suit property at the time of disturbance in the family. She therefore signed on the Deed thinking it to be a Power of Attorney. She also stated that her husband i.e. the defendant, executed the Deed of Cancellation when he came to learn about the Deed of Gift. Goutam Dutta, a practicing advocate has been examined as DW 6. He conducted the Sessions Case before the learned Addl. Sessions Judge, 1st Court at Alipore in the year 1987 on behalf of Krishna Chandra Das, Sudipta Das, Nilima Das and Susmita Das. He has stated that the defendant and his family members were all accused in the Criminal Case under section 306 of the Indian Penal Code but they had been acquitted subsequently. Sessions Judge, 1st Court at Alipore in the year 1987 on behalf of Krishna Chandra Das, Sudipta Das, Nilima Das and Susmita Das. He has stated that the defendant and his family members were all accused in the Criminal Case under section 306 of the Indian Penal Code but they had been acquitted subsequently. The learned Trial Court, after having considered the evidences as above, proceeded to deal with the case by observing that "the moot question that arises for my consideration and decision is whether the suit property belonged to the Defendant or whether the Defendant executed the Deed of Gift in favour of the Plaintiff in respect of the suit building or whether the said Deed of Gift was duly accepted and acted upon or whether the Defendant delivered the possession of the suit building to the Plaintiff or whether the Defendant executed the Deed of Gift on his own accord or whether the Plaintiff managed to obtain the signature of the Defendant family members as confirming parties or whether the Defendant and the confirming parties signed the alleged Deed of Gift assuming the same as a Power of Attorney or whether the Plaintiff has acquired right, title and interest over the suit property on the basis of the Deed of Gift or whether the Plaintiff gave permission to the Defendant and his family members to reside in the suit premises under her leave ad licence without any licence fee or whether the Defendant has been residing along with his family members in a portion of the suit building as of right or whether the alleged licence granted in favour of the Defendant by the Plaintiff was duly revoked or whether the Defendant has been occupying the suit premises as Trespasser." [Quoted from pages 16 to 17 of the Paper book] The learned Trial Court ultimately Decreed the Suit on contest and passed a Decree in favour of the Plaintiff for recovery of possession in respect of the suit premises against the Defendant and accordingly, directed him to quit, vacate and deliver khas possession of the suit premises in her favour within two months from the date of the Order failing which, she (the Plaintiff) was given liberty to put the Decree into execution. The Trial Court also passed a Decree for mesne profits @ Rs. The Trial Court also passed a Decree for mesne profits @ Rs. 30/- per diem w.e.f. the date of filing of the Suit till recovery of possession of the suit premises with a rider, that the mesne profits shall be determined in a separate proceeding on payment of adequate court fees. 5. Being aggrieved, the Respondents/Defendants filed an Appeal before the ld. Addl. District Judge, 3rd Court, Alipore and by a judgment dated 20.12.2007, the said Title Appeal No. 274 of 1999 was allowed on contest and the judgment of the Trial Court referred to above, was set aside. It is against the aforementioned judgment that this appeal has been preferred by the Plaintiff. 6. During the course of submissions, the learned Counsel for the Appellant framed the following questions of law. The same are stated as follows: I. Whether the Learned Judge of the Court of appeal below committed a Substantial error of law by not applying the proper legal tests to decide the Case of the present nature ? II. Whether the Judgement of the Court of appeal was vitiated by not considering the reasonings of the Learned Trial Court while reversing the judgment and Decree ? III. Whether the judgement of the Learned Judge of the Court of appeal below was perverse due to non-consideration of the voluminous materials on record regarding the genuineness of the Deed of Gift in question and ignoring the material evidences in connection therewith ? 7. As against the aforesaid questions of law framed by the Appellants, the Respondents also framed the following substantial question of law:- Whether the learned Judge of the Courts below committed a substantial error of law in not considering the principle that the concept of Gift is diametrically opposed to the presence of consideration, as admitted by PW 1 ? 8. Having considered the rival submissions of the parties, this Court would like to first take notice of the fact that the original Deed of Gift (Exhibit-1) was filed on behalf of the Plaintiff. There is another aspect and it is the letter of attornment which was sent by the Defendant on 23.9.1992 to one Shanti Bhusan Majumdar, a tenant asking him to pay rent in respect of his tenanted portion to the Plaintiff. There is another aspect and it is the letter of attornment which was sent by the Defendant on 23.9.1992 to one Shanti Bhusan Majumdar, a tenant asking him to pay rent in respect of his tenanted portion to the Plaintiff. The Trial Court also considered the fact that DW 5 (Sushila Devi) was one of the tenants in the suit house and in cross-examination, she had stated that she had been paying rent to the Defendant but "at present" she was not paying rent of her tenanted portion. She further stated and admitted the fact that the Plaintiff had filed a Title Suit in which she had filed an Affidavit making a statement that she had paid rent to the Plaintiff. The Trial Court also considered the fact that the said DW 5 had filed an Application under Section 17 (2) of the W.B.P.T. Act in Title Suit No. 57 of 1996 and that the said application was disposed of by Order No. 14 dated 2.7.1997 clearly indicating that the said DW 5 paid rent to the Plaintiff. Under the circumstances the learned Trial Court came to the conclusion that the Plaintiff collected rent from DW 5 in the capacity of the owner of the suit building. 9. The learned Trial Court also duly considered the fact that the Defendant had sent letters to other tenants in the same building asking them to pay rent and that the Plaintiff duly collected rent from those tenants and therefore, it was apparent, that she had acted on the strength of the Deed of Gift. 10. The Learned Trial Court also considered the Municipal Tax Receipt (Exhibit-2) which indicated that municipal taxes were assessed in the name of the Plaintiff. The Calcutta Municipal Assessment Book (Exhibit-3) indicated that the name of the Plaintiff had been recorded in the said Assessment Book qua the said suit building. 11. In fact, a Gift tax was also shown to the learned Trial judge vide Exhibit-4 which clearly indicated that the Plaintiff had paid gift tax in respect of the suit building and therefore, it was only proper to assume that she had acted after acceptance of the Deed of Gift. The learned trial Judge therefore came to the conclusion that the Deed of Gift was an accepted document which stood admitted/established. 12. The learned trial Judge therefore came to the conclusion that the Deed of Gift was an accepted document which stood admitted/established. 12. The learned Trial Judge also took into consideration the case of the Plaintiff to the effect that after execution of the Deed of Gift, the Defendant had requested her to permit him to reside in the suit premises with his family members for 6 months and that she had allowed him to do so as a licensee, but without any licence fee. The Plaintiff had also made out a case that after expiry of the said period of 6 months, she had again allowed the Defendant to reside in the suit premises with his family members for the next 6 months without licence fee but the Defendant did not vacate the suit premises and as such, she revoked the licence. The husband of the Plaintiff was examined as PW 1. Apart from corroborating what was mentioned in the plaint, he stood the severity of cross-examination in such a manner that the learned Trial Judge was unable to doubt his testimony and consequently, he found that the plaintiff had proved, by oral evidence, that the Defendant was allowed to reside with his family members in the suit premises as a licensee under the plaintiff, but without any licence fee. 13. Apart from the aforesaid, the learned trial Judge also considered the letter dated 22.9.1993 (Exhibit-11) which was written by the Defendant himself and which was addressed to the plaintiff seeking permission from her to occupy one room in the suit premises. 14. It was under the aforementioned circumstances that the learned Trial Judge Decreed the Suit on contest. 15. The learned 1st Appellate Court however proceeded to adjudicate the Appeal, after merely observing, "so the only question of determination whether the defendant executed and registered the Deed of Gift on 14.9.1992 in favour of the Plaintiff and whether the Plaintiff has acquired title in the suit property on the basis of the Deed of Gift dated 14.9.1992 (Exhibit-1)" (Quoted See Page 45 of the Paper Book). 16. In the opinion of this Court, the very approach of the Appellate Court in reversing the Judgment of the Trial Court was erroneous and casual. 16. In the opinion of this Court, the very approach of the Appellate Court in reversing the Judgment of the Trial Court was erroneous and casual. In this context, I would like to deal with the three questions that were framed by the learned Counsel for the Appellant during the course of arguments which have been recorded in para-6 above. However, for the convenience of all, this Court would like to answer these questions at this stage itself and then proceed to give reasons in support of those answers. They are as follows:- I. Whether the Learned Judge of the Court of appeal below committed a Substantial error of law by not applying the proper legal tests to decide the Case of the present nature ? Ans. Yes. The learned Court of Appeal below did commit an error of law, quite substantial in nature, inasmuch as it did not apply proper legal tests which were relevant to be taken into consideration for purposes of deciding case. II. Whether the Judgement of the Court of appeal was vitiated by not considering the reasonings of the Learned Trial Court while reversing the judgment and Decree ? Ans. Yes. The Judgment of the learned Lower Appellate Court is vitiated because it hardly bothered to consider the reasoning given by the learned Trial Court. III. Whether the judgement of the Learned Judge of the Court of appeal below was perverse due to non-consideration of the voluminous materials on record regarding the genuineness of the Deed of Gift in question and ignoring the material evidences in connection therewith ? Ans. Yes. The Judgment of the learned Lower Appellate Court was not at all proper inasmuch as it did not consider the materials that were brought on record and specially, those which proved that the Deed of Gift was genuine in nature. 17. In order to support the answers given by this Court, we have to deal with the fact that admittedly, the property in question became a subject matter of a contested Deed of Gift which was marked as Exhibit-1. The case of the Defendant was that he had not gifted the property and that the Plaintiff/Appellant had obtained his signature on a representation that he was signing a Power of Attorney. This particular aspect of the case cannot be believed. The case of the Defendant was that he had not gifted the property and that the Plaintiff/Appellant had obtained his signature on a representation that he was signing a Power of Attorney. This particular aspect of the case cannot be believed. Ram Gopal Bhandari (PW 1) had stated in his cross-examination that the Plaintiff used to pay money for the maintenance of her father's family. In this context, the submissions on behalf of the Defendants were that the Plaintiff used to give financial assistance for the maintenance of the family as well as in connection with the Sessions Case and therefore, in lieu of such a consideration, the Defendant executed the Deed of Gift. DW 1, appearing on behalf of the Defendants, had admitted in his cross-examination-in-chief that the plaintiff used to give financial assistance for the maintenance of the family. Therefore the fact that financial assistance was given by the plaintiff to the defendant and his family is admitted. It is therefore manifest that the presumption applied by the learned Trial Court to the effect that the defendant executed the Deed of Gift out of his love of affection as well as upon receiving financial assistance from the plaintiff, was a presumption that cannot be said to have been "drawn out of the Hat". Consequently, the conclusion of the trial Court to the effect that the Deed of Gift must be deemed to be void was rightly not accepted by the trial court because "financial assistance" rendered by the plaintiff to the defendant could not have been equated with "consideration money" as was submitted by the learned Counsel of the Defendants. 18. Admittedly, the Defendant is the father of the Plaintiff/Appellant herein. The Defendant and/or his submissions before the trial Court were sufficient to indicate that financial assistance was readily accepted by him. The Defendant went a step further by issuing a letter of attornment which indicated that he specifically told his tenants and requested them that payment of rent should be made to his daughter, namely, the plaintiff. Exhibit 10 clearly shows that he mentioned about the execution of the Deed of Gift and that letter of Attornment (Exhibit-10) dated 23.9.1992 was addressed to one S.B.Majumdar, one of the tenants, stating that the Defendant had executed the Deed of Gift with his full knowledge and consent and had gifted the suit building to his daughter, the plaintiff. Exhibit 10 clearly shows that he mentioned about the execution of the Deed of Gift and that letter of Attornment (Exhibit-10) dated 23.9.1992 was addressed to one S.B.Majumdar, one of the tenants, stating that the Defendant had executed the Deed of Gift with his full knowledge and consent and had gifted the suit building to his daughter, the plaintiff. The said letter reads as follows:- From:- Sri Krishna Chandra Das, Calcutta- 23. 40/1, Ram Kamal Street, To Dated: 23-9-92 Sri Santu Bhusan Mazumder, 40/1, Ram Kamal Street, Calcutta- 23. Dear Sir, You are tenant under me in respect of a portion of the Three Stored Building at premises No. 40/1, Ram Kamal Street, Calcutta- 23, fully described in the schedule hereunder and hereinafter referred to as "The Tenanted Premises" at a monthly rental of Rs. 300/- payable according to English Calendar year. Hetherto I have been realising rent from you in respect of the tenanted premises. By Registered Deed of Gift I have Gifted the Three stored Building at premises No. 40/1, Ram Kamal Street, Calcutta- 23. To my daughter Smt. Ranu Bhandary, w/o Sri Ram Gopal Bhandary, of 1/A, Pitember Sarkar Lane, Calcutta-23. By vurture of aforesaid Deed of Gift said Smt. Ranu Bhandary has become the absolute owner of the aforesaid building and accordingly she has become your land lady in respect of the tenanted premises. You are, therefore, requested to accept the said Smt. Ranu Bhandary as your land lady and to pay the monthly rental of the tenanted premises to the said Smt. Ranu Bhandary, your land lady from the month of Oct. 1992. She will grant you receipt acknowledging payment of Rent from you. SCHEDULE : All that one room, kitchen, bath-cum-privy in the first floor of the three stored building at premises No. 40/1, Ram Kamal Street, Calcutta- 23. Together with common use of Tap Water. Yours faithfully, Krishna Chandra Das" (Quoted - SIC) 19. The above document clinches the issue. No arguments of the defendant to the effect that the Deed of Gift was void or that he had been led to believe that he had signed on an alleged Power of Attorney or that such a Deed of Gift has no value, are all arguments that must be rejected outright. The lower Appellate Court did not even bother to deal with these issues. The lower Appellate Court did not even bother to deal with these issues. He proceeded purely on assumptions without considering the voluminous materials of record. 20. Under the circumstances, this Court refuses to accept the submissions of the learned Counsel for the Respondents that both the learned Courts below did not consider the principle that a concept of Gift cannot be accepted because there was presence of consideration as was stated by the PW 1. This has already been explained in Para-17, supra herein. 21. Considering the aforementioned facts and circumstances, this Court allows the Appeal and as a consequence, the Judgment delivered by the lower Appellate Court in Title Appeal No. 273 of 1999 is set aside. The judgment delivered in Title Suit No. 75 of 1995 passed on 13th August, 1999 is accordingly upheld and confirmed and as a consequence, the Appellant gets a Decree on contest, as against the defendants, and also gets a Decree for recovery of possession in respect of the suit premises. The respondents/defendants are accordingly directed to comply with the Order and Decree passed by the learned Trial Court on 13th August, 1999 stated above. There shall however, be no Order as to Costs. Let the Lower Court Records be sent down forthwith. Upon appropriate Applications being made, urgent photostat Certified copy of this Judgment, be given/issued expeditiously subject to usual terms and conditions.