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Gauhati High Court · body

2015 DIGILAW 249 (GAU)

Mala Baruah Neog v. Dipali Baruah and Ors.

2015-03-02

N.CHAUDHURY

body2015
1. The judgment and decree dated 13.7.2006 passed by the learned Additional District Judge, Nagaon in Title Suit No. 64 of 2001 has been called in question in the present first appeal. The suit was decreed by the learned trial court in entirety. The principal defendant No.1, who had been contesting the suit all along became aggrieved thereby and has preferred this first appeal. 2. The case of the plaintiff was that one Dinai Christian (Burmij) was original owner of land measuring 4 katha 11 lechas covered by Dag No. 314 and 315 of periodic patta No.153 situated at Kachalukhowa Kissam under Nagaon town along with a house standing thereon. He gifted whole of the land to his wife Joymoni Christian by a registered gift deed in the year 1951. The donee Joymoni Christian on turn sold 1 katha of land out of the entire land to one Sri Nath Khan and retained 3 katha, 11 lechas under her title and possession. She died leaving behind two sons, Mikhail Burmij and Babul Burmij and one daughter Smt. Bhagya Borua who got married to one Khagen Baruah, a Hindu. The other son Mikhail Burmij also in the year 1987 unmarried and according to the plaintiff, thus, he became the sole owner of 3 katha, 11 lechas of land as Bhagya Borua became a Hindu and so did not inherit any right, title and interest to the ancestral land. Bhagya Borua died leaving behind three daughters, namely, Mala, Dipali and Seema and one son, Naba Borua. Naba Borua died unmarried, thus, three daughters, Mala, Dipali and Seema became her legal heirs. This Mala is none other than the principal defendant No.1 in this case whereas, the other two daughters, Dipali and Seema became Plaintiff Nos. 2 and 3 along with Babul Burmij as plaintiff No.1. The plaintiff stated that out of love and affection at the time the suit was instituted, Naba Borua was living and he was arraigned as Plaintiff No. 4 therein. He subsequently, having died during pendency of the suit, his name was struck out and the suit was maintained by the three plaintiffs, namely, plaintiff Nos. 1,2 and 3. It was the case of the plaintiff that out of love and affection plaintiff No.1 gifted 1 katha of land to defendant No.1, Mala on 18.12.1996 and handed over the possession. He subsequently, having died during pendency of the suit, his name was struck out and the suit was maintained by the three plaintiffs, namely, plaintiff Nos. 1,2 and 3. It was the case of the plaintiff that out of love and affection plaintiff No.1 gifted 1 katha of land to defendant No.1, Mala on 18.12.1996 and handed over the possession. The other land measuring 2 kathas, 11 lechas was jointly owned and possessed by plaintiffs at that time when Babul Burmij, Plaintiff No.1 intended to make gift of the remaining 2 katha, 11 lechas of land in favour of Dipali and Seema, Plaintiff Nos. 2 and 3. He engaged defendant No.1, Mala to make necessary preparation, But defendant No.1 fraudulently prepared the gift deed in her own name and got the same executed by plaintiff No.1 on 5.1.2000. The possession remained jointly with the plaintiffs as Mala was married to one Manju Neog another Hindu and was living in Nagaon in her matrimonial house. But subsequently, when she wanted to get the possession, the dispute between the parties started which necessitated filing of the Title Suit for declaration that subsequent gift deed No.61 of 2000 executed on 5.1.2000 was never executed by plaintiff No.1 and it being a fraudulent one no title flew to the principal defendant No.1. It was also prayed that joint title of plaintiffs be declared on the whole of 2 kathas, 11 lechas described in Scheduled-A and B to the plaint. 3. On being summoned defendant No.1 appeared and submitted written statement and contested the suit. In para 19 of the written statement defendant stated her own facts. According to her, Bhagya Baruah did not have any share in the property and after her death the offspring of Bhagya Baruah were given shelter by plaintiff No.1, Babul Burmij. But since Babul Burmij was unmarried and there was none to look after him, it is the defendant No.1 who used to always look after him. Under such circumstances out of his love and affection, Babul Burmij initially gifted 1 katha of land to her on 5.1.2000 by registered gift deed No. 61 of 2000. The defendant No.1 emphatically stated that this gift deed was not only executed by plaintiff No. 1 but he subsequently also gave a declaration that he had made gift in favour of defendant No. 1. The defendant No.1 emphatically stated that this gift deed was not only executed by plaintiff No. 1 but he subsequently also gave a declaration that he had made gift in favour of defendant No. 1. With these submissions, defendant No.1 prayed that the suit be dismissed. 4. On the rival contention of the parties, the learned trial court framed as many as six issues and the same are quoted below : (i) Whether there is any cause of action for the suit? (ii) Whether the suit is maintainable in its present form? (iii) Whether the suit is barred by Section 34 of the Specific Relief Act? (iv) Whether the deed No.61 dated 5.1.2000 is void, inoperative and vitiated by fraud and mis-representation and the same is liable to be cancelled or not? (v) Whether the plaintiff are entitled for a decree of right, title and interest and possession over the suit land? (vi) To what relief, reliefs parties are entitle to? Plaintiffs examined three witnesses including plaintiff No.2 (Seema Baruah) whereas defendant No.1 examined five witnesses including herself and two attesting witnesses of the gift deed dated 5.1.2000 in question, 5. The learned trial court after consideration of the materials on record found that Exhibit-1 Zamabandi was of periodic patta No.147 whereas exhibit-2 was the subsequent patta No.143, Exhibit-3 is the gift deed executed on 19.9.1951 by Dinai Christian in favour of his wife Joymoni Christian, Exhibit-4 is the gift deed dated 18.12.1996 admittedly executed by plaintiff No.1 in favour of defendant No.1 with respect to 1 katha of land, Exhibit-5 is the disputed deed No. 61 of 2000 whereby there is recital of gift by plaintiff No.1 in favor of defendant No. 1. It is this deed which has been sought to be adjudged void, inoperative and fraudulent. Exhibit-6 is the certificate given by doctor, Exhibit-7 is the revenue receipts and Exhibit-8 is the Municipal Tax receipt. It is also to be noted here that Exhibit-5 which has been sought to be adjudged to be illegal, inoperative and vitiated was allegedly executed by plaintiff in presence of two attesting witnesses, namely, Badan Bairagi and Anil Das. One Cheniram Kakoti was the scribe of the deed but none of these witnesses were examined by plaintiffs' side. It is also to be noted here that Exhibit-5 which has been sought to be adjudged to be illegal, inoperative and vitiated was allegedly executed by plaintiff in presence of two attesting witnesses, namely, Badan Bairagi and Anil Das. One Cheniram Kakoti was the scribe of the deed but none of these witnesses were examined by plaintiffs' side. It is also to be noted that Plaintiff No.1 who is the donor of the disputed gift deed died on 20.1.2003 during pendency of the suit and consequently, his name was struck off from the plaint by order dated 21.7.2003. The plaintiff No.1 therefore, could not enter into the witness box to prove the allegation he labeled in regard to unintentional execution due to fraud by defendant No.1. 6. The defendants on the other side examined five witnesses. These five witnesses include the defendant No.1, the scribe of the Exhibit-5, Chenaram Kakoti (DW-2) one attesting witnesses Badan Bairagi (DW-3), one Mofizuddin Ahmed, the scribe of Exhibit-K as DW-4. Witness of that deed, i.e., Exhibit-K as DW-5. Thus it is clear that attesting witness of the disputed gift deed dated 5.1.2000 were examined as DWs-2 and 3. 7. The learned trial court while deciding issue Nos. 3 and 4 appears to have presumed Exhibit-K to be basic deed for consideration of the suit As pointed out above, it is the Exhibit-5 gift deed dated 5.1.2000 which has been sought by plaintiffs to be illegal, inoperative, void and fraudulent. Defendants exhibited Exhibit-K which is the copy of Deed No.149, exhibited on 11.9.2001. This is a subsequent declaration made by plaintiff No.1 supporting his earlier act of gift made in Exhibit-5. The scribe of Exhbit-K was Mofizuddin. He was examined as PW-4 and he said nothing about the gift deed, Exhibit-5. Whatever, he deposed was in regard to Exhibit-K declaration. On the other hand, attesting witness of Exhbit-5 was examined as DW 3 and he stated that the plaintiff No.1 executed the gift deed in their presence and they thereafter subscribed their respective hands as witnesses and scribe to the deed. 8. The learned trial court laid much emphasis on the evidence of PW-3, Mofizuddin and that Mofizuddin did not see the Executant to sign the document. But by saying this witness really did make any statement about the context of the document in Exhibit-5. 8. The learned trial court laid much emphasis on the evidence of PW-3, Mofizuddin and that Mofizuddin did not see the Executant to sign the document. But by saying this witness really did make any statement about the context of the document in Exhibit-5. With these findings, the learned trial court held that the Exhbit-5 gift deed was void, inoperative and vitiated by fraud and misrepresentation. This judgment was passed on 13.7.2006 which has been brought under challenge in the first appeal. 9. I have heard Mr. S. Sharma, learned counsel for the appellant and Mr. A. Sharif, learned counsel for the respondents. I have perused the deposition of 6 PWs and 5 DWs along with relevant document including Exhbit-5 and Exhibit-K. 10. In the plaint the basic contention of the plaintiff is that land originally belonged to one Denai Christian. He during his lifetime executed gift deed on 19.9.1951 in favour of his wife Joymoni Christian and thereafter she sold 1 katha of land to one Sri Nath Khan and thus balance of 3 katha, 11 lechas of land remained under her possession and title. She was a Christian and on her death properties must have devolved on her children in the absence of husband in equal share by applicant of section-37 of the Indian Succession Act, 1925. Out of these three legal heirs of Joymoni Christian, her son Mikhail Burmij died unmarried and so on his death the other two legal heirs Babul Burmij and Bhagya Barua became the owners. Even if Bhagya Barua became Hindu in that event also no provision of law has been shown by the learned counsel for the respondents to the effect that she would forfeit her right, title and interest to the property already devolved on her. After the death of Bhagya Barua she was survived by three daughters, Defendant No.1, plaintiff Nos. 2 and 3 and one Naba Barua. This Naba Barua died during pendency of the suit as unmarried and so the title had devolved in equal share on her three daughters with regard to above. So far as other half of the property is concerned it devolved on Babul Burmij and admittedly he made gift of 1 katha of land in favour of one Mala Barua by registered gift deed No.3207 dated 18.12.1996. Thus, he was left with at least 15.5 lechas of land under his title. So far as other half of the property is concerned it devolved on Babul Burmij and admittedly he made gift of 1 katha of land in favour of one Mala Barua by registered gift deed No.3207 dated 18.12.1996. Thus, he was left with at least 15.5 lechas of land under his title. It is the case of the plaintiffs that plaintiff No.1 actually wanted to make gift of the balance land of 2 katha 11 lechas in favour of other two daughters of Bhagya Barua who are plaintiff Nos. 2 and 3 herein. But here defendant No.1 perpetrated fraud on the plaintiff No.1 and got the same executed in her favour with respect to 2 katha, 11 lechas of land. Having made this allegation, plaintiff did not survive to come to the witness box to prove his intention. This being the position, the trial court was left with only Exhbit-5 and its attesting witness. The intention of plaintiffs being a matter of his mind would have been divulged by him alone. 11. Gift deed within the meaning of section 123 of the Transfer of Property Act has to be done by an instrument and attested by at least two witnesses. A perusal of Exhbit-5 shows that three persons including Chenaram Kakoti scribe, one Badan Bairagi and Anil Das were the other two witnesses of the deed. Section 68 of the Evidence Act requires that a deed, which by law is required to be attested, cannot be admissible in the evidence unless at least one of the attesting witness, if alive, is examined. Here Badan Bairagi an being attesting witness was examined as DW-3 by defendant and so Exhibit-5 document became admissible in evidence. Scribe of the document, namely, Chenaram Kakoti was examined as DW-2. I have perused his deposition. Chenaram Kakoti deposed that Exhibit-5 gift deed was written in Sub-Registry of the office of Nagaon. He was known to Babul Burmij since childhood. Babul Burmij came to his house with request to write the deed. After writing the deed he read it out to him and necessary facts were furnished by Babul himself. Exhibit-C is that deed and Exhibit-C(1) Exhibit-C(2), Exhibit-C(3) and Exhibit-C(4) are the signatures of the writer. He further stated that Badan Bairagi and Anil Das remained present in the witness box while the same was prepared. Babul Burmij gave his signature in his presence, PW-2 emphatically claimed. Exhibit-C is that deed and Exhibit-C(1) Exhibit-C(2), Exhibit-C(3) and Exhibit-C(4) are the signatures of the writer. He further stated that Badan Bairagi and Anil Das remained present in the witness box while the same was prepared. Babul Burmij gave his signature in his presence, PW-2 emphatically claimed. He also said that it is he who identified the doner at the time of registration. So that way, DW-2 was not only a scribe but also identifier of Exhibit-C (Exhibit-5 gift deed) This witness was cross-examined at length by plaintiffs' side. But it does not appear that he could be discredited or shaken insofar as vital aspect of execution is concerned. Badan Bairagi who is one of the two attesting witnesses of the gift deed came to the witness box as DW-3. He said that he knows scribe Chenaram kakoti as well as witness Anil Das as all of them are scribes in the office of the Sub-Registry, Nagaon. They also claimed to know Babul Burmij who is the referee of National level football. DW-3 claimed to have signed Exhibit-C which is a gift deed and was written by Chenaram KaKoti. It was written in the working place of the advocate and thereafter read it to Babul Burmij who affixed his signature in presence of the witness. The signature of Babul Burmij was exhibited by this witness. So from perusal of the deposition Of DWS-2 and 3, it appears that they were witness to the gift deed in question which has been challenged as fraudulent and void instrument. But in the words of the scribe and the attesting witnesses, after the deed was written it was read out to the donor and having understood the contents thereof the donor had affixed his signature to the deed. Once this part of the deposition of DWs-2 and 3 is believable than the subsequent story of the plaintiffs that plaintiff No.1 had signed the document without understanding the purport thereof became incredible. Moreover, Executant of an instrument by a deed in writing cannot subsequently resile from the same by way of oral evidence and in this case, the person who has claimed to have been defrauded, no longer survived and did not come to the witness box. Virtually there is no evidence in regard to the effect that plaintiff No.1 had no intention to execute the gift deed. Virtually there is no evidence in regard to the effect that plaintiff No.1 had no intention to execute the gift deed. So far as execution of the gift deed is concerned, it appears to be an admitted fact on the face of the plaint which itself shows that Exhibit-C deed was signed by plaintiff No.1 without understanding the purport thereon. Even if this statement is taken at the face value, then what is admitted is the execution of the deed. Once execution of the deed is admitted and it is claimed that he did it under wrong notion in that event burden will heavily fall on the plaintiffs to prove such lack of will. There is no iota of evidence to say that plaintiff No.1 had expressed his intention to that effect to any of the witnesses who were examined. DW-2 and 3 have stated on the other hand that after preparation of the gift deed it was read out to the donor (plaintiff No.1) and thereafter he gave his signature in presence of the witnesses and the witnesses gave their signature thereafter. Statements by DW-2 and 3 that the document was read out to the donor after its preparation has not been questioned in course of cross-examination. That statement has gone unrebutted in the evidence. In the absence of cross-examination this part of examination-in-chief assumes much importance. The learned trial court does not appear to have taken note of this part of evidence of PWs-2 and 3 which incidentally happened to be most crucial part for determination of the suit of present nature where execution of deed is admitted but intention of the execution is denied. 12. Having noted as aforesaid, there is no doubt that a gift deed was executed by plaintiff No.1 on 5.1.2000. This gift deed, in the version of DWs-2 and 3 was prepared in the office of Sub-Registrar at Nagaon and thereafter it was read over to the plaintiff No.1 in presence of witnesses. These witnesses had seen the plaintiff No.1 while giving signature on the document vide Exhibit-C. DW-3 was present when DW-2 had read out the document to plaintiff No.1 before execution. This part of the event is something which can be seen and which can be heard. These witnesses had seen the plaintiff No.1 while giving signature on the document vide Exhibit-C. DW-3 was present when DW-2 had read out the document to plaintiff No.1 before execution. This part of the event is something which can be seen and which can be heard. Under section 60 of the Evidence Act a fact which can be seen or a fact which can be heard can be proved by examining such a witness who would have deposed to have seen or heard such facts to happen. Herein this case there is averment as to reading out of documents to the plaintiff No.1 and thereby plaintiff No.1 gave his signature on this document. This part was witnessed by DWs-2 and 3 and heard by DW-3 when read over by DW-2. So uncontroverted oral evidence on record is sufficient to hold that such a fact has been duly proved within the meaning of section-60 of the Indian Evidence Act, 1872. Having so found it is to be held that the learned trial court fell in error in not appreciating the evidence of DWss-2 and 3 and not perusing Exhbit-5 and K in proper perspective. 13. The judgment is accordingly set aside and the suit of the plaintiff is hereby dismissed. 14. No order as to cost. Send down the records after preparation of the decree.