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2015 DIGILAW 1214 (GAU)

Dambaru Dhar Medhi v. Chakradhar Medhi

2015-09-19

A.K.GOSWAMI

body2015
JUDGMENT : 1. Heard Mr. K.R. Surana, learned counsel for the appellant. Also heard Mr. N. Haque, learned counsel appearing for the respondents. 2. This appeal is presented against the judgment and decree dated 28.09.2005, passed by the learned District Judge, Barpeta, in Title Appeal No. 6 of 2002, confirming the judgment and decree dated 03.06.2002 passed by the learned Civil Judge, Senior Division, Barpeta, in Title Suit No. 9 of 1995, whereby the suit was partly decreed. 3. The case of the plaintiff is that the plaintiff, Dambarudhar Medhi and defendant No. 1, Chakradhar Medhi are sons of Bhuban Chandra Medhi. Defendant No. 2 is the wife of defendant No. 1 and defendant Nos. 3 to 7 are sons of defendant Nos. 1 and 2. Bhuban Chandra Medhi died on 05.08.1991, when he was about 100 years old leaving behind the property as described in Schedule-A to the plaint. Plaintiff is the younger son of Bhuban Chandra Medhi. The plaintiff, in connection with his service, was not residing in his family house but he kept constant touch with his father and other members of the family and took care of Bhuban Chandra Medhi during his lifetime. Bhuban Chandra Medhi was a literate person and he could write his name. It is alleged that with a view to deprive the plaintiff, the defendants got Chitha mutation on 18.12.1985 in respect of land measuring 3 Bigha 3 Lecha of land by a registered batowara. Chitha mutation was obtained on 19.12.90 by the defendant No. 2 on the basis of a gift deed in respect of 1 Bigha 4 Katha 15 Lecha. Bhuban Chandra Medhi did not execute gift deed No. 1931/85, dated 21.11.85, in favour of the defendant No. 2 by putting thumb impression on the gift deed. Another gift deed, being gift deed No. 1932/85, was allegedly executed by Bhuban Chandra Medhi in favour of defendant Nos. 3 to 7 in respect of 16 Bigha 2 Katha 3 Lecha of land by putting thumb impression. 4. The defendants filed written statement denying the allegations. It was pleaded that in the year 1982 or so, Bhuban Chandra Medhi had sustained serious injury in his right hand and was rendered incapable to write. The defendants had taken care of Bhuban Chandra Medhi and he had become dependent on the defendants. 4. The defendants filed written statement denying the allegations. It was pleaded that in the year 1982 or so, Bhuban Chandra Medhi had sustained serious injury in his right hand and was rendered incapable to write. The defendants had taken care of Bhuban Chandra Medhi and he had become dependent on the defendants. Due to love and affection, in sound mind and health and without being influenced from any quarter, the gift deeds had been executed. It was stated that the plaintiff, after being employed, did not look after and help his father and, perhaps, because of that Bhuban Chandra Medhi was not happy with him. 5. The plaintiff examined three witnesses and the defendants’ side examined four witnesses. The gift deeds were exhibited as Ext.-‘Kha’ and ‘Ga’. The learned courts below, on consideration of the materials on record, including the evidence of DW2, Jogendra Nath Roy, the scribe, Tarini Kanta Roy and Golok Deka, the attesting witnesses, DW3 and DW4, respectively, held that the execution of the gift deeds were duly proved. Accordingly, the learned trial Court dismissed the suit in respect of the prayer made for declaration of the gift deeds as forged and illegal and inoperative in law. However, based on Ext.-‘ka’, it was held that the plaintiff has right, title and interest over an area of 3 Bigha 3 Lecha of land under Schedule-‘A’. 6. The appeal was admitted to be heard by an order dated 09.08.2006 on the following substantial question of law: “Whether the findings arrived at by the learned Courts below suffer from perversity in upholding the legality and validity of both Ext. “Kha’ and Ext.’Ga’ those being the gift deeds executed by late Bhuban Chandra Medhi without deciding whether the defendants received actual physical possession of the suit land from Late Medhi and though the defendants/respondents No. 2 to 7 failed to prove both these Ext. ‘Kha’ and Ext.’Ga’.” 7. Mr. Surana, learned counsel for the plaintiff/appellant has submitted that the gift deeds were manifestly forged as Bhuban Chandra Medhi was a literate person and there would have been no occasion for him to put thumb impression in the gift deeds and thumb impression was deliberately put so that signature of Bhuban Chandra Medhi cannot be compared with admitted signature of Bhuban Chandra Medhi. It is submitted that there is no reason as to why the father of the plaintiff would have deprived him of the properties belonging to him as he had always taken care of his father. It is submitted by him that the defendants failed to prove that thumb impression had necessarily to be given because of infirmity of Bhuban Chandra Medhi and, therefore, the learned courts below were not correct in holding that the gift deeds were proved in accordance with law. 8. Mr. N. Haque, learned counsel for the defendants/respondents, on the other hand, has submitted that as a result of injury sustained by Bhuban Chandra Medhi in a dacoity committed at his house, he was unable to do any work with his right hand. The scribe and the attesting witnesses having deposed in categorical terms that the donor put his thumb impression in their presence, the defendants had discharged the burden of establishing that the gift deeds were validly executed. It is submitted by him that the plaintiff did not examine any other relatives or neighbourhood witnesses to demonstrate that the donor was not incapacitated in any matter in his right hand and was still in a position to put his signature. Merely because the donor had put thumb impression, in view of the categorical evidence of the defendants as to why thumb impression had been put, execution of the gift deeds cannot be held to be not proved. It is submitted by Mr. Haque that as both the courts below had concurrently held that the execution of the gift deeds have been proved in accordance with law, no interference is called for in this Second Appeal. He further submits that the evidence on record amply demonstrates that the gift was duly accepted by the donee. 9. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 10. Section 122 of the Transfer of Property Act, 1882 (for short, ‘T.P. Act’), defines gift as transfer of certain existing movable or immovable property made voluntarily and without consideration by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee and such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before the acceptance, the gift is void. 11. If the donee dies before the acceptance, the gift is void. 11. Section 123 of the T.P. Act provides that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument, signed by or on behalf of the donor and attested by at least two witnesses. 12. In the instant case, the scribe and the attesting witnesses have been examined as DW2, DW3 and DW4. DW2 stated that he knew both the attesting witnesses and that he also knew Bhuban Chandra Medhi from before. Bhuban Chandra Medhi had put his thumb impression after he read out the gift deed. He deposed that Bhuban Chandra Medhi could not put his signature though he was literate because he had sustained injuries in his right hand. DW3 also deposed that he had known Bhuban Chandra Medhi from before. He had also deposed that Bhuban Chandra Medhi could not put his signature because of the injuries sustained by him due to assault by dacoits. He also stated in categorical terms that the donor had put his thumb impression in his presence and Bhuban Chandra Medhi had called him to be his witness. He denied the suggestion that Bhuban Chandra Medhi and Sashibala were his relatives. Similarly, DW4 also deposed that he had known Bhuban Chandra Medhi since childhood and that Bhuban Chandra Medhi had suffered injury as dacoits had assaulted him when a dacoity was committed in his house. He deposed that Bhuban Chandra Medhi had put his thumb impression in his presence and that the defendants had taken possession of the gifted property. 13. PW1, in his evidence had stated that his father had expired at the age of 90 years. It is to be noted that in the plaint it was stated that his father had expired at the age of 100 years. In his cross-examination he had admitted that a dacoity was committed in the house of his father in which his father had sustained injury on his right hand. He had denied the suggestion that after the injury, his father was unable to put his signature. 14. The plaintiff did not examine any other witness to substantiate that Bhuban Chandra Medhi, who was an old man of 90/100 years, had not sustained such injury as would have incapacitated him from putting signature. He had denied the suggestion that after the injury, his father was unable to put his signature. 14. The plaintiff did not examine any other witness to substantiate that Bhuban Chandra Medhi, who was an old man of 90/100 years, had not sustained such injury as would have incapacitated him from putting signature. DW1 in her evidence had stated that after the assault, made by the dacoits, her father was unable to work with his right hand. The dacoity had taken place 3/4 years prior to the execution of the gift deeds. The evidence of DW1 regarding her father-in-law being unable to do work with his right hand had gone un-assailed. 15. In Shanti Budhiya Vesta Patel and Others vs. Nirmala Jayprakash Tiwari and Others, AIR 2010 SC 2132 , the Apex Court had held that a registered document has a lot of sanctity attached to it and this sanctity cannot be allowed to be lost without following proper procedure. The appellants before the Apex Court having failed to furnish full and precise particulars with regard to the alleged fraud as required under law, the appeal was dismissed. 16. The argument of Mr. Surana that the gift deeds must be held to be forged documents on the ground that the donor had allegedly put his thumb impression instead of appending his signature as he was a literate man, cannot be accepted in view of the overwhelming evidence on record indicating as to why the donor had to put thumb impression. The gift deeds were duly proved by examining the scribe and the attesting witnesses and there is no material on record from the plaintiff’s side to even arouse any suspicion that the donor did not suffer from any disability in his right hand. 17. In view of the above discussion, I find no merit in this appeal and, accordingly, the same is dismissed. Substantial question of law is answered against the appellant. No cost. 18. Registry will send back the records.