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2015 DIGILAW 851 (CAL)

Sushil Kumar Gayen v. Janjali Gayen

2015-10-06

ASHIS KUMAR CHAKRABORTY

body2015
Judgment : Ashis Kumar Chakraborty, J. This second appeal is preferred by the plaintiffs-appellants against the judgment and decree dated April 22, 1996 passed by the learned Assistant District Judge, Diamond Harbour in Title Appeal No. 77 of 1994, affirming the judgment dated February 25, 1994 and the decree dated April 19, 1994 passed by the learned Subordinate Judge, First Court of Diamond Harbour dismissing the Title Suit No. 149 of 1992. The plaintiffs filed the title suit, claiming a declaration of their title in respect of the suit property, measuring about 46 decimals of land at plot nos. 5801 and 2881, under Khatian Nos. 2940 and 2622, respectively of Mouza Kautala, under P.S. Raidighi within the District of South 24 Parganas, (hereinafter called “the suit property) and a decree for permanent injunction against the defendant. For convenience, the parties are hereinafter referred to by their array in the trial Court. As per the plaint case, the father of the plaintiffs, Gopal Gayen (hereinafter referred to as “Gopal”), by a deed of gift dated June 06, 1986, transferred the suit property to them, they accepted the said gift and obtained possession of the suit property from Gopal. The plaintiffs further claimed to be in adverse possession of the suit property. The plaintiffs alleged that the defendant has no title in respect of the suit property nor is she in possession of the suit property but, the defendant had been threatening them to disturb their right, title and possession in respect of the suit property. The defendant contested the title suit. In the written statement, the defendant claimed to be the wife of the eldest brother of the plaintiffs Anil, who deserted her and married another lady. The defendant further claimed that her father-in-law, Gopal executed and registered a deed of gift on July 18, 1986 and transferred the suit property together with some other plots of land to her. After acceptance of the said gift from Gopal, the suit property together with some other plots of land are in her possession by cultivation in khas. She has converted a portion of the suit property from agricultural land to non-agricultural land. The defendant specifically disputed the execution of the said deed of gift dated June 06, 1986 by Gopal in favour of the plaintiffs. She has converted a portion of the suit property from agricultural land to non-agricultural land. The defendant specifically disputed the execution of the said deed of gift dated June 06, 1986 by Gopal in favour of the plaintiffs. The defendant further alleged that in the year 1987, Gopal in collusion with his sons filed a suit against her, in the Diamond Harbour Court, which was renumbered as Title Suit No. 58 of 1992 and challenged the said deed of gift executed in her favour on July 18, 1986.. She contested the said suit; in his judgment dated May 25, 1992 passed in the said Title Suit No. 58 of 1992 the learned Additional Munsif, Diamond Harbour held that in his evidence, Gopal, admitted to have executed the said deed of gift in her favour, and that he subsequently, purchased a portion of the gifted land from her for valuable consideration and that the remaining portion of the land (which includes the suit property in this case) is in her possession. The defendant further alleged that the deed of gift dated June 06, 1986 relied upon by the plaintiffs is fictitious, the said deed of gift had neither been duly attested nor was the same accepted by the plaintiffs and said gift was never acted upon. Considering the pleadings of the respective parties, various issues were framed by the learned trial Judge, including, if the plaintiffs have any right, title and interest over the suit land, and if the plaintiffs are entitled to get the decrees as prayed for. In the suit, the plaintiff no. 1 adduced evidence, as PW-1, for himself and the plaintiff no. 2. Apart from the plaintiff no. 1, the writer of the deed of gift dated June 06, 1986, adduced evidence as PW-2 and a neighbour of the plaintiffs adduced evidence as PW-3. The defendant herself adduced evidence as DW-1, one of the attesting witnesses of the deed of gift executed by Gopal in favour of the defendant, adduced evidence as DW-2 and the labourer who cultivates the suit property adduced evidence as DW-3. The deed of gift dated June 06, 1986 executed by Gopal, relied upon by the plaintiffs was marked as Exbt.-“3”, the deed of gift dated July 18, 1986 also executed by Gopal, relied upon by the defendant was marked (Exbt.-“A”). The deed of gift dated June 06, 1986 executed by Gopal, relied upon by the plaintiffs was marked as Exbt.-“3”, the deed of gift dated July 18, 1986 also executed by Gopal, relied upon by the defendant was marked (Exbt.-“A”). The certified copies of the judgment and decree both dated May 25, 1992 passed by the learned Second Court of the Additional Munsif, Diamond Harbour, in Title Suit No. 58 of 1992 was marked as Exbts.- “F” and “G”, respectively. After considering the oral and documentary evidence adduced by the plaintiffs and the defendant respectively, the learned trial Judge held that the plaintiffs could not substantiate to be in possession of the suit property and that in the said judgment dated May 25, 1992 passed by the learned Second Court of the Additional Munsif, Diamond Harbour, in the said Title Suit No. 58 of 1992 filed by Gopal, (Exbt. “F”) the deed of gift executed by Gopal in favour of the defendant was held to be a genuine and valid deed of gift and that the said deed of gift was duly executed, attested and acted upon by Gopal, by delivery of possession of the suit property to the defendant. The learned trial Judge further held that Gopal, having executed both the deeds of gift, Exbt. “A” and Exbt.- “3”, being still alive and the plaintiffs still being in the joint mess of Gopal, Gopal should have come to the Court to tell the truth but he did not come to adduce evidence on behalf of the plaintiffs. The learned trial Judge further held though the deed of gift relied upon the plaintiffs Exbt.- “3”, stands prior to the deed of gift of the defendant Exbt.-“A”, but Exbt.-“3” was not attested and acted upon and the plaintiffs could not get possession of the suit property by virtue of the said deed of gift. With these findings, the learned trial Judge dismissed the title suit. The plaintiffs challenged the judgment and decree passed by the learned trial Judge before the learned Assistant District Judge, Diamond Harbour. The learned first appellate Court did not interfere with the findings or decision of the learned trial Judge and affirmed the trial Court judgment and decree. With these findings, the learned trial Judge dismissed the title suit. The plaintiffs challenged the judgment and decree passed by the learned trial Judge before the learned Assistant District Judge, Diamond Harbour. The learned first appellate Court did not interfere with the findings or decision of the learned trial Judge and affirmed the trial Court judgment and decree. The learned first appellate Court held that the appellants plaintiffs could not establish that they obtained possession of the suit property, Gopal did not disclose the execution of the deed of gift Exbt.-“3” in favour of the plaintiffs in the said Title Suit No. 58 of 1992 and considering the materials on record and the dual role of donor, that is, Gopal, it cannot be said that Exbt.-“3” was ever acted upon. The learned first appellate Court also held that although in the recital of the gift deed dated June 06, 1986 (Exbt.-“3”) it is mentioned that with the execution of the said gift deed, Gopal made over possession of the suit property to the plaintiffs being the donees but, the plaintiffs could not substantiate that they ever obtained possession of the suit property from Gopal and from the evidence adduced by the defendant herself and her two other witnesses, DW-2 and DW-3, as also from the judgment dated May 25, 1992 passed by the learned Additional Munsif, Diamond Harbour, in the said Title Suit No. 58 of 1992, Exbt.-“F” it is evident that it is the defendant who is in possession of the suit property and the said deed of gift executed by Gopal in favour of the defendant, that is, Exbt.-“A” was declared to be a valid gift executed by Gopal. The learned first appellate Court further held that the evidence of PW-2, the writer of the deed of gift, Exbt.-“A” did not fulfil the test of evidence of a witness to prove a document and that there is no explanation as to why in the gift deed in favour of the plaintiffs (Exbt.- “3”) Gopal reserved to himself that all records and title shall remain with him and he shall make over the same to the plaintiffs donees as and when they require. According to the learned first appellate Court, the said statement in the deed of gift being, Exbt.-”3”, substantiates that the plaintiffs are to depend upon the discretion of Gopal, in the matter of possession and disposition of the suit property and it cannot be said that Gopal, the donor, transferred the suit property to the plaintiffs. At the time of admission of the second appeal on April 15, 1997, no substantial question of law was framed and at the commencement of hearing of the appeal, this Court framed the following substantial question of law: “Whether both the learned Courts below substantially erred in law in dismissing the suit filed by the appellants seeking declaration and permanent injunction on the basis of the deed of gift being Exbt.-“3” of the proceeding on the ground that the said deed of gift has not been duly attested and acted upon and the plaintiff could not get possession of the suit property by virtue of the said deed of gift.” Mr. Sarkar appearing for the appellants placed Sections 122 and 123 of the Transfer of Property Act, 1882 and submitted that from the definition of “Gift” it is evident, that a “gift” in order to be valid has to be accepted by the donee and in the instant case, the acceptance of the gift of the suit property by the plaintiffs is evidenced by the statements made in the gift deed, dated June 06, 1986 (Exbt.-“3”), to the effect that possession of the property was made over by the donor, Gopal to the plaintiffs and as such the impugned judgments passed by both the learned Courts below that the said gift was not accepted and acted upon by the plaintiffs are vitiated by a patent error of law. In support of his contention, Mr. Sarkar relied on the decision of the Supreme Court in the case of Asokan vs. Lakshmikutty and ors. reported in (2007) 13 SCC 210 , the decision of a Division Bench of the Madras High Court in the case of Kamakshi Ammal- vs.-Rajalakshmi and Ors. reported in AIR 1995 Mad 415 , and the decision of a learned Single Judge of the Orissa High Court in the case of Smt. Sanjukta Ray – vs- Bimelendu Mohanty and Ors. reported in AIR 1997 Ori 131 . reported in AIR 1995 Mad 415 , and the decision of a learned Single Judge of the Orissa High Court in the case of Smt. Sanjukta Ray – vs- Bimelendu Mohanty and Ors. reported in AIR 1997 Ori 131 . He cited the decision of the Supreme Court in the case of Renikuntla Rajamma -vs. -K. Sarwanamma reported in (2014) 9 SCC 445 and submitted that delivery of possession of the subject matter of the gift to the donee is not an essential condition under Section 122 of the Transfer of Property Act. Relying on the decision of the Supreme Court in the case of Brij Raj Singh (Dead) by Lrs. and Ors.- vs.- Sewak Ram and Anr. reported in (1999) 4 SCC 331 Mr. Sarkar contended in the instant case, when the deed of gift in favour of the plaintiffs, Exbt.-“3” was registered under the Registration Act and the PW-2 proved his signatures in the said gift deed in two different capacities, that is, as a writer of the gift deed, as also as an attesting witness, the validly of the deed of gift executed by Gopal in favour of the plaintiffs was proved and the finding of both the learned Courts below that the said deed of gift, Exbt.- “3”, was not attested is vitiated by an error of law. He next cited the decision of the Supreme Court in the case of Pentakota Satyananrayana and Ors. vs. Pentakota Seetharatnam and Ors. reported in AIR 2005 SC 4362 where, the Supreme Court held that an endorsement by sub-registrar that executant has acknowledged execution before him amounts to attestation. He further cited the decision of the Supreme Court in the case of Surendra Kumar -vs.-Nathulal and Anr. reported in (2001) 5 SCC 46 and submitted that in the instant case, since the donor, that is, Gopal did not deny the execution of the deed of gift in favour of the plaintiffs by him, in view of the Proviso to Section 68 of the Evidence Act, 1872 there was no necessity of any of the witnesses of the said deed of gift being examined in the instant case. According to Mr. According to Mr. Sarkar, when the execution of the deed of gift, Exbt.- “3”, in favour of the plaintiffs was not denied by Gopal, there was no necessity of any witness adducing any evidence, still the plaintiffs proved execution of the said deed of gift through PW-2, both as the writer of the deed, as also as the attesting witness, but the learned Courts below committed an error of law in holding that the said deed of gift in favour of the plaintiffs, Exbt.-“3” was not duly attested. For all these reasons, according to Mr. Sarkar the impugned judgments and decrees passed by both the learned Courts below, dismissing the suit filed by the plaintiffs, is vitiated by error of law and liable to be set aside in this second appeal. In support of such contention, he cited the decision of the Supreme Court in the case of Surendra Kumar- vs- Nathulal and another reported in (2001) 5 SCC 46 . However, Mr. Hiranmoy Bhattacharya, learned Advocate, appearing for the defendant submitted that none of the impugned judgments and decrees passed by the learned Courts below is vitiated by any error of law. He submitted that in the written statement, the defendant had specifically denied the execution of the deed of gift dated June 06, 1986, by Gopal in favour of the plaintiffs. He further submitted that both the plaintiffs and the defendant claimed their title to the suit property through Gopal, who is the donor in both the deeds of gift but, the plaintiffs did not call the Gopal to prove the validly of deed of gift dated June 06, 1986 allegedly executed in their favour. According to Mr. Bhattacharya, from the evidence on record of this case, it is evident that Gopal, being the donor of the gift dated July 18, 1986 (Exbt.- “A”) in favour of the defendant, had challenged the said deed of gift by filing the said Title Suit No. 58 of 1992 and by the said judgment dated May 25, 1992 (Exbt.-“F”), the learned Second Court of the Additional Munsif, Diamond Harbour held that the said deed of gift to be valid and the defendant no. 1 in the said title suit, being the defendant in this case, obtained possession of the suit property on the basis of the said deed of gift. 1 in the said title suit, being the defendant in this case, obtained possession of the suit property on the basis of the said deed of gift. He submitted that DW-2, who was one of the witnesses in the deed of gift in favour of the defendant (Exbt.- “A”), adduced evidence before the trial Court, and proved execution of the said deed of gift by Gopal. Mr. Bhattacharya contended that one of the essential conditions of a valid gift under Section 122 of the Transfer of Property Act is that the gift must be accepted by or on behalf of the donee but, in the instant case, neither in the deed of gift dated June 06, 1986 (Exbt.-3) there is any endorsement of the plaintiffs donees, signifying their acceptance of the gift nor the plaintiffs could substantiate in their evidence that they ever obtained possession of the suit property from Gopal on the strength of the said deed of gift. He further contended that from the said judgment dated May 25, 1992 (Exbt.- “F”), it is evident that the hearing in the said Title Suit No. 58 of 1992 was concluded before the learned Additional Munsif, Diamond Harbour on May 18, 1992 and thereafter, Gopal caused the instant suit being filed by the plaintiffs on May 22, 1992. He strenuously urged that it is not only proved by Exbt.-“F”, that is, the said judgment dated May 25, 1992 passed in Title Suit No. 58 of 1992, but the defendant through her evidence before the learned trial Judge also substantiated to have received and continued in possession of the suit property after acceptance of the said deed of gift, Exbt.-“A”. Even the DW-2 and DW-3, who were also cross-examined in detail by the learned advocate of the plaintiffs, also proved that the defendant is in possession of the suit property. Citing the Division Bench decision of this Court in the case Akbar Ali Molla-vs.-Sonargaon Housing Co-operative Society Ltd. reported in 2001 WBLR (Cal) 805, Mr. Bhattacharya further contended that when the defendant in this case proved her title over the suit property by virtue of Exbt.-“A”, she has the presumption in her favour that possession of the suit property went with her title. Bhattacharya further contended that when the defendant in this case proved her title over the suit property by virtue of Exbt.-“A”, she has the presumption in her favour that possession of the suit property went with her title. He further cited the decision of the Supreme Court in the case of Binapani Paul-vs- Pratima Ghosh reported in (2007) 6 SCC 100 and submitted since in the plaint, the plaintiffs also claimed to be in adverse possession of the suit property, they accepted the title of the defendant in respect of the suit property. His last contention was that since the plaintiffs are not in possession of the suit property and they did not claim any relief for recovery of possession of the suit property, the suit was barred by the Proviso to Section 34 of the Specific Relief Act, 1963. Relying on the decision of the Supreme Court in the case of Santosh Hazari -vs-Purushottam Tiwari reported in (2001) 3 SCC 179 , he contended that since the bar of the Proviso to Section 34 of the Specific Relief Act, 1963 goes to the root of the matter with regard to the maintainability of the suit, the defendant is entitled to urge such point in the second appeal. After Mr. Bhattacharya concluded his submission, Mr. Sarkar did not make any further submission in reply and submitted that the grounds of his challenge to the impugned judgments and decrees passed by the learned Courts below are only those as already argued by him in his opening submission. I have considered the pleadings of the parties before the learned trial Court, the material evidence on record, as also the submissions made on behalf of both the plaintiffs and the defendant. One of the grounds urged on behalf of the plaintiffs to challenge the impugned judgments passed by the learned Courts below is that when, it is in the deed of gift dated June 06, 1986 (Exbt.-“3”) that the donor-Gopal handed over possession of the suit property to the plaintiffs, the findings of the learned Courts below that the said deed of gift was not accepted by the plaintiffs and the same was not acted upon is vitiated by patent error of law. The essential conditions, laid down in Sections 122 and 123 of the Transfer of Property Act for a valid gift in respect of an immovable property are as follows: (i) the donor must be the owner of the property, (ii) the donor must transfer the property to the done voluntarily and without consideration, (iii) the gift must be accepted by or on behalf of the done, during the lifetime of the donor and while he is still capable of giving, and (iv) the transfer must be effected by a registered document, signed by or on behalf of the donor and attested by at least two witnesses. In the instant case, both the deeds of gift Exbts.-“A” and “3”, in favour of the plaintiffs and the defendant, respectively are registered deeds of gift, executed by the same donor, Gopal. The subject matter of the deed of gift in Exbt. “3” is the suit property and the subject matter of the deed of gift in Exbt.- “A” is the suit property together with some other plots of land. In the said Title Suit No. 58 of 1992, Gopal himself challenged the validity of the gift deed Exbt.-“A”, executed by himself in favour of the defendant in this case, as the same being vitiated by fraud. By the judgment dated May 25, 1992, that is, Exbt.-“F”, the learned Additional Munsif, Diamond Harbour held that Gopal, in his evidence in the said suit admitted to have executed the said deed of gift and delivered possession of the entire subject matter of the said gift to the donee defendant and the said deed of gift was valid. From the said judgment dated May 25, 1992 it is evident that hearing of the said Title Suit No. 58 of 1992 was concluded on May 18, 1992. The plaintiffs in this case being in joint mess with Gopal, filed their suit on May 22, 1992, they claimed their title in respect of the suit property on the strength of the deed of gift executed in their favour by Gopal, that is, Exbt.-“3” but, they did not challenge the validity of the deed of gift executed by Gopal, that is, Exbt.-“A” in favour of the defendant. Now, in the said Title Suit No. 58 of 1992 filed by Gopal himself , the defendant had proved her title and possession over the suit property, by her acceptance of the gift executed by Gopal in her favour and she has once again through her own evidence, as also the evidence of DW-2 (one of the attesting witnesses) and DW-3 (the person who cultivates her land) proved before the trial Judge, the execution of the deed of gift, Exbt.- “A”, her acceptance of the said gift by obtaining and continuing in khas possession of the suit property by cultivation. On the other hand, although the plaintiffs, in their plaint claimed to have accepted the gift of the suit property by Gopal in their favour but, in their evidence adduced through PW-1, PW-2 and PW-3 miserably failed to have proved their acceptance the said gift or having obtained possession of the suit property from Gopal. Thus, although in the registered gift deed Exbt.- “3”, it is mentioned that the donor Gopal had made over possession of the property to the plaintiffs which gives rise to a presumption in their favour but, in this case, the defendant though her positive evidence rebutted such presumption and proved her title and possession, in respect of the suit property by accepting the deed of gift deed Exbt.- “A” , executed by Gopal. Even, Mr. Sarkar appearing for the plaintiffs did not contend that in their evidence the plaintiffs have proved either their possession of the suit property or their acceptance of the gift by Gopal. It is settled law that there is a presumption that a registered document is a valid document in the eye of law but, such presumption is rebuttable and the onus of proof would be on a person who leads evidence to rebut the presumption. It is settled law that there is a presumption that a registered document is a valid document in the eye of law but, such presumption is rebuttable and the onus of proof would be on a person who leads evidence to rebut the presumption. Even in paragraph 23 the case of Asokan (supra), the Supreme Court and the Division Bench of the Madras High Court and the learned Single Judge of the Orissa High Court, in the said cases of Kamakshi Ammal (supra) and Sanjukta Ray (supra) have held that when in a deed of gift, it is mentioned that the donor handed over possession of the property and the donee had accepted the same, there is a presumption of the execution of gift by donor and acceptance of the gift by the donee, but the same is a rebuttable presumption. In the instant case, when the plaintiffs failed to prove their acceptance of the said deed of gift, Exbt.- “3”, executed by Gopal, the defendant through overwhelming evidence, not only proved the execution of the deed of gift, that is, Exbt.-“A” in her favour by Gopal, but also, her acceptance of the said gift and her continued possession of the suit property. For all these reasons, I find no infirmity in the findings of the learned Courts below that the deed of gift relied upon by the plaintiffs, being Ext.- “3”, was not accepted by the plaintiffs and the said deed of gift was not acted upon. So far as the decision of the Supreme Court in the case of Renikuntala Rajamma (supra) cited on behalf of the plaintiffs, in the said case, execution of the gift deed by the donor and acceptance of the gift by the donee was admitted. The validity of the gift deed was challenged only on the ground that the donor had retained possession of the gifted property during her lifetime, when the Supreme Court held that delivery of possession of the gifted property by the donor to the donee is not essential for validity of the gift. In the instant case, the plaintiffs could not prove acceptance of the gift by Gopal in their favour, by any mode whatsoever. Thus, the said decision Renikuntala Rajamma (supra) has no application in this case. In the instant case, the plaintiffs could not prove acceptance of the gift by Gopal in their favour, by any mode whatsoever. Thus, the said decision Renikuntala Rajamma (supra) has no application in this case. With regard to contention of the plaintiffs that they have proved the execution of the deed of gift Exbt.-“3” by Gopal, through PW-2, who was not only the writer of the deed of gift, but also one of the attesting witnesses, I find substance in the submission of Mr. Sarkar. From the Exbt.- “A” it is evident that PW-2, Biswanath Halder had put his signature on the said deed of gift by Gopal in favour of the plaintiffs, both as a witness and also as the writer of the deed. In his evidence, PW-2 proved preparation of gift deed Exbt.-“3” and execution thereof by Gopal in presence of himself and the other two witnesses, Mrinal Kanti Maity and Shyamapada Maity. Thus, the plaintiffs had proved the execution and attestation of the deed of gift, Exbt.-“3” in accordance with the provisions contained in Section 68 of the Evidence Act, 1872 and the findings of the learned Courts below that the said deed of gift, Exbt.-“3”, was not duly attested cannot be sustained. Since the plaintiffs proved attestation of the deed of gift, Exbt.-“3”, it is not necessary to deal with the decisions of the Supreme Court in the cases of Pentakota Satyanarayana (supra) and Brij Raj Singh (supra) relied on behalf of the plaintiffs when the facts of those cases were different. However, in view of the above finding I have already arrived at that the plaintiffs have not accepted the deed of gift dated June 06, 1986 (Exbt.-“3”) and the said deed of gift was not acted upon, mere proof of execution of the said deed of gift by the attesting witness (PW-2) shall not affect the impugned decisions of the learned Courts below rejecting the relief claimed by the plaintiffs in the suit. Further, as rightly submitted by Mr. Bhattacharya by placing reliance on the decision of the Supreme Court in the case of Binapani Paul (supra), once in their plaint plaintiffs claimed their title to the suit property on the basis of their adverse possession for more than twelve years, they admitted the title of the defendant in respect of the suit property. Bhattacharya by placing reliance on the decision of the Supreme Court in the case of Binapani Paul (supra), once in their plaint plaintiffs claimed their title to the suit property on the basis of their adverse possession for more than twelve years, they admitted the title of the defendant in respect of the suit property. However, in their evidence the plaintiffs failed to have at all ever obtained possession of the suit property. I also find substance in the submission of Mr. Bhattacharya that in the suit the plaintiffs claimed declaration of their title in respect of the suit property but, from the material evidence of the case, it is evident that the defendant is in possession of the suit property and the plaintiffs claimed no relief for recovery of possession of the suit property and as such the suit was barred by the proviso to Section 34 of the Specific Relief Act, 1963 and as held by the Supreme Court in the case of Santosh Hazari (supra) such question going root of matter can be considered in the second appeal. For all the foregoing reasons, I find no merit in the appeal and the same stands rejected. The judgment and decree dated April 22, 1996 passed by the learned Assistant District Judge, Diamond Harbour in Title Appeal No. 77 of 1994 is affirmed. Let, the decree drawn up expeditiously and the lower Courts’ records be forthwith sent down. Considering the circumstances of the case, there will be no order as to costs. Urgent certified photostat copy of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.