Research › Search › Judgment

Calcutta High Court · body

2015 DIGILAW 489 (CAL)

Adhir Kumar Pramanik v. Sudhir Kumar Pramanik

2015-06-16

DEBI PROSAD DEY, JYOTIRMAY BHATTACHARYA

body2015
JUDGMENT: Jyotirmay Bhattacharya, J. This second appeal is directed against a judgement of affirmance passed by the learned first appellate court in a suit for partition at the instance of the defendant no.1/appellant. The learned Trial Judge decreed the plaintiffs’ suit for partition in preliminary form declaring that the plaintiffs have 3/4th share in the suit property. Parties were directed to make amicable partition of the suit property within sixty days from the date of the judgement failing which the plaintiffs were given liberty to effect partition through advocate commissioner to be appointed by the court on the prayer of the plaintiffs. The defendant no.1/appellant felt aggrieved as the learned Trial Judge refused to recognise the share of the said defendant which he allegedly acquired in the suit property by way of registered deed of gift executed by his mother. However, acquisition of interest in the suit property by the defendant no.1 by way of inheritance through his father was neither denied by the plaintiffs nor the court has turned down such claim of the defendant no.1. The learned Trial Judge while refusing to recognise the claim of the defendant no.1 for acquiring the mother’s interest in the suit property by way of registered deed of gift executed by his mother held that the suit property was not the subject matter of gift being Exhibit-‘A’. Thus the learned Trial Judge held that no part of the suit property was gifted by the mother in favour of the defendant no.1. The defendant no.1 preferred an appeal before the learned first appellate court. In connection with the said appeal, the said defendant filed an application under Order 41 Rule 27 of the Code of Civil Procedure for bringing another sale deed on record to show that all the brothers while transferring a joint property belonging to them admitted in the said registered deed of transfer about the execution of the deed of gift by the mother in favour of one of the brothers. The defendant no.1 thus claimed that when execution of the deed of gift by the mother and bequeath of some share of the mother in favour of one of her sons were accepted by the brothers in the said transfer deed, the plaintiffs cannot dispute the title of the defendant no.1 in respect of the mother’s share which he got from the mother through the undisputed deed of gift. Thus, the defendant no.1/appellant claims that execution of the deed of gift by his mother cannot be disputed. The defendant no.1/appellant thus prayed for reversal of the impugned judgement. The learned appeal court dismissed the said appeal by rejecting the defendant’s said application under Order 41 Rule 27 of the Code of Civil Procedure by holding inter alia that since despite knowledge of the said deed of gift, the said defendant did not produce and/or prove the said document in course of trial of the suit, the said defendant cannot be allowed to prove the said document in appeal by way of additional evidence. The learned appeal court also held that even the said deed of gift through which the defendant no.1 was claiming interest in the suit property from his mother has not been duly proved in accordance with the provision contained in Section 68 of the Indian Evidence Act. Accordingly, the learned appeal court held that the defendant no.1 has failed to prove that he has acquired any interest of his mother in respect of the suit property by virtue of the deed of gift executed by his mother. The learned appeal court thus dismissed the said appeal. Being aggrieved and dissatisfied with the said judgement and decree of the learned first appellate court, the instant second appeal is directed. Let us now consider as to how far the learned first appellate court was justified in dismissing the said appeal in the facts of the instant case. Though we cannot support the findings of the learned first appellate court regarding dismissal of the defendant’s application under Order 41 Rule 27 of the Code of Civil Procedure as the deed of gift, in our view, is a vital piece of document which ultimately will decide the extent of interest of the parties in the suit property. As such, even if such a document cannot be allowed to be produced by way of additional evidence under Order 41 Rule 27(1)(a) or (aa), but still then the court could have allowed such document to be produced by way of additional evidence in view of the provision contained in Order 41 Rule 27 sub-rule (b) of the Code of Civil Procedure. However, we find that even by allowing the said application of the defendant no.1, the ultimate conclusion which was arrived at by the learned first appellate court cannot be reversed as it has been rightly held by the learned first appellate court that execution of the deed of gift has not been duly proved by the defendant no.1 in accordance with the provision contained in Section 68 of the Indian Evidence Act, 1872. Mr. Basu, learned advocate appearing for the appellant has drawn our attention to the proviso added to Section 68 of the Indian Evidence Act and submits that since the execution of the deed of gift is not disputed, the defendant no.1/appellant was not required to prove the due execution of such registered deed of gift by the mother by bringing the attesting witness in the Box. We cannot agree with such contention of Mr. Basu, as we find that the conscious execution of the deed of gift by the mother was not admitted by the plaintiffs; rather conscious execution of such deed of gift by the mother was seriously disputed by them. The plaintiffs contended that the mother was not physically fit and mentally alert at the time of execution of the said deed of gift. Thus, we hold that since the conscious execution of the deed of gift by the mother was not admitted by the plaintiffs, the exemption from examining the attesting witness which is granted in the proviso to Section 68 of the Indian Evidence Act cannot be applied in the facts of the instant case. Accordingly, we hold that the learned first appellate court did not commit any illegality in dismissing the said appeal by holding that the execution of the deed of gift by the mother was not duly proved by the defendant no.1/appellant in accordance with the provision under Section 68 of the Indian Evidence Act. We do not find involvement of any substantial question of law in this second appeal. Accordingly, the instant appeal need not be admitted for hearing under Order XLI Rule 11 of the Code of Civil Procedure. The appeal thus stands dismissed.