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2016 DIGILAW 1050 (CAL)

Kakali Ghosh v. Madan Mohan Ghosh

2016-12-20

ASHIS KUMAR CHAKRABORTY

body2016
JUDGMENT : ASHIS KUMAR CHAKRABORTY, J. 1. The present revisional application at the instance of the plaintiff in Title Suit No. 133 of 2015, pending before the Court of the learned Civil Judge, Senior Division, Sealdah is directed against the orders dated August 5, 2016 and September 6, 2016 passed by the learned Court below. By the first impugned order dated August 5, 2016 the learned Court below rejected the application filed by the plaintiff-petitioner praying for, expunging the registered deed of gift dated July 4, 2015 (hereinafter referred to as "the said deed of gift") executed by the defendant-opposite party no.1, in favour of the defendant-opposite party no.2, as Exhibit "A" from the list of exhibits of the suit. By the second impugned order dated September 6, 2016 the learned Court below rejected, the application filed by the plaintiff petitioner under Section 151 of the Code of Civil Procedure, 1908 praying for, recalling of the first impugned order dated August 05, 2016 and further directing closure of the cross-examination of the defendant no. 1 opposite party. 2. So far as the challenge against the first impugned order dated August 5, 2016 the same raises a question of law that whether in view of the proviso to Section 68 of the Evidence Act, 1872 if the execution of a registered deed of gift is admitted by the donour himself the same can be exhibited in a suit, in the absence of any evidence being adduced by any of the attesting witnesses. In the present case, the plaintiff-petitioner in her suit claimed a declaration that the said deed of gift executed by the defendant-opposite party no.1 transferring of a portion of his property situate at premises no. 12/1, Ganguli Para Lane, Kolkata is void, invalid and inoperative and not binding upon her and liable to be cancelled. In the plaint it is the case of the plaintiff-petitioner that at the time of execution of the said deed of gift the defendant-opposite party no.1 was suffering from parkinson, neuroepileptic, renal disorder dease, hiper tension and he also has a pacemaker. The said deed of gift is duly registered under the Registration Act, 1908 witnessed by two witnesses. In the plaint it is the case of the plaintiff-petitioner that at the time of execution of the said deed of gift the defendant-opposite party no.1 was suffering from parkinson, neuroepileptic, renal disorder dease, hiper tension and he also has a pacemaker. The said deed of gift is duly registered under the Registration Act, 1908 witnessed by two witnesses. At the trial of the suit, the defendant-opposite party no.1 adduced evidence in his examination in chief by way of affidavit evidence, he proved his signature on the said deed of gift and also stated that he has himself executed the said deed of gift. Thereafter, the said deed of gift was tendered and exhibited as Exhibit- "A" of the suit, without any objection being raised on behalf of the plaintiff-petitioner. On September 6, 2016 the plaintiff-petitioner moved an application praying for, before the learned Court below praying for, expunging of the said registered deed of gift from the list of exhibits in the suit. By the order dated August 5, 2016 the learned Court below held that in view of the proviso to Section 68 of the Evidence Act, in the present case when the defendant-opposite party no.1 admitted the execution of the said registered deed of gift, the absence of any of the two witnesses shall not stand in the way of the same being proved and being marked as an exhibit. Thus, as mentioned earlier, by the first impugned order dated August 5, 2016 the learned Court below rejected the application filed by the plaintiff-petitioner for expunging the said registered deed of gift from the list of exhibits in the suit. 3. Mr. Sukanta Chakraborty, learned advocate appearing for the petitioner in the present revisional application strenuously contended that as per, Section 123 of the Transfer of Property Act, a deed of gift in respect of an immovable property is not only required to be registered under the Registration Act, 1908, but the same has to be attested by at least two witnesses. According to him, as per Section 68 of the Evidence Act a deed of gift in respect of an immovable property, unless being proved by anyone of the two attesting witnesses, the same cannot be proved or exhibited in the suit. According to him, as per Section 68 of the Evidence Act a deed of gift in respect of an immovable property, unless being proved by anyone of the two attesting witnesses, the same cannot be proved or exhibited in the suit. He strenuously contended that when the execution of the said deed of gift is not proved by any of the two witnesses mentioned therein, the learned Court below fell into an error of law in exhibiting the said deed of gift as an exhibit. He also contended that in the present case when the said deed of gift could not be exhibited, the learned Court below committed a further patent error of law in not allowing the application filed by the plaintiff-petitioner for expunging the said registered deed of gift from the list of exhibits in the suit. According to Mr. Chakraborty, on the above grounds already urged on behalf of the plaintiff petitioner, even the second impugned order dated September 06, 2016 is also vitiated by failure of exercise of jurisdiction by the learned Court. He also contended that the plaintiff-petitioner bona fide prayed for adjournment of the further cross-examination of the defendant-opposite party no.1, but the learned Court below fell into an error in rejecting such prayer of the plaintiff-petitioner and concluding the cross-examination of the defendant-opposite party resulting in the plaintiff petitioner suffering injustice. 4. However, Mr. Sourav Sen, learned advocate appearing for the opposite parties vehemently urged that the present revisional application has no merit. According to him, with the incorporation of the proviso to Section 68 of the Evidence Act, when the said deed of gift is duly registered under the Registration Act, 1908 and the execution of the same is not disputed by the plaintiff petitioner proviso a registered deed of gift the execution of which is not the same could be proved and exhibited by the donor himself by admitting the execution thereof. He strenuously contended in the present case, the learned Court below committed no error of law either in exhibiting the said deed of gift as Exhibit- "A" of the suit or in passing any of the impugned orders calling for any interference by this Court. In support of his contentions, Mr. He strenuously contended in the present case, the learned Court below committed no error of law either in exhibiting the said deed of gift as Exhibit- "A" of the suit or in passing any of the impugned orders calling for any interference by this Court. In support of his contentions, Mr. Sen relied on the judgment delivered by Subhra Kamal Mukherjee, J. (as His Lordship then was) in the case of Kumaresh Majumder v. Binapani Sarkar & Ors., reported in 2001(2) CHN 496 . Mr. Sen further submitted that the plaintiff-petitioner obtained sufficient opportunity to cross-examine the defendant-opposite party no.1 and even on September 6, 2016 after rejecting the application for recalling of the order dated August 05, 2016, the learned Court below granted opportunity to the plaintiff-petitioner to cross-examine the defendant-opposite party no.1, but the learned advocate of the plaintiff petitioner avoided to cross examine the defendant no. 1. He submitted that in the facts of the present case the second impugned order dated September 6, 2016 suffers from no infirmity and this Court should not entertain the challenge to the second impugned order. 5. I have considered the facts of the present case and the arguments advanced by the learned counsel appearing for the respective parties. Since the decision in the present case with regard to the challenge thrown to both the impugned orders dated August 5, 2016 and September 06, 2016 is dependant on the scope and purport of Section 68 of the Evidence Act, the same is set out herein below :- "Proof of execution of document required by law to be attested : If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied". 6. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied". 6. The above proviso to Section 68 of the Evidence Act was incorporated by Section 2 of the Indian Evidence (Amendment) Act, 1926. A bare reading of the proviso to Section 68 of the Evidence Act shows that the rigor of the section has been relaxed to some extent and it is, therefore, not required to call an attesting witness, except in a case of a Will, unless the execution of the registered document itself is specifically denied. This view is fortified by the decision of the Supreme Court in the case of Khushalchand Swarup Chand Zabak Jain v. Sureshchandra Kanhaiyalal Kochar @ Anr., reported in 1995 supp. (2) SCC 36, as well the said decision of this Court in the case of Kumaresh Majumder (supra). In this case, from a reading of paragraph 19 of the plaint in the suit it is clear that the plaintiff-petitioner has not disputed the execution of the said deed of gift by the defendant-opposite party no.1. She has alleged that at the time of execution of the said deed of gift the defendant-opposite party no.1 was suffering from various diseases. Therefore, I am of the view that in the facts of the present case, the learned Court below was right to hold that when the said deed of gift is a registered instrument and the defendant-opposite party no.1 executant himself admitted to have executed the same, the execution of the said deed of gift was duly proved even in the absence of any of the two witnesses and the same was correctly marked as an exhibit. Accordingly, I do not find any merit in the challenge either against the first impugned order dated August 5, 2016 refusing to expunge the said deed of gift, marked an Exhibit- "A" of the suit, from the list of exhibits or the second impugned order dated September 06, 2016. 7. Further, the portion of the second impugned order dated September 6, 2016 directing conclusion of the cross-examination of the defendant opposite party no. 7. Further, the portion of the second impugned order dated September 6, 2016 directing conclusion of the cross-examination of the defendant opposite party no. 1, I find that the plaintiff-petitioner was aware that the suit was fixed for further cross-examination of the defendant-opposite party no.1, who is admittedly an octogenarian person. When the application of the plaintiff-petitioner for expunging the said registered deed of gift from the list of exhibits was rejected no valid or substantial reason could be made out by the plaintiff-petitioner for not cross-examining the defendant-opposite party no.1. In these facts, I am unable to find any infirmity even in the second impugned order dated September 6, 2016 passed by the learned Court below refusing the prayer of the plaintiff petitioner to adjourn the cross-examination of the defendant opposite party no. 1 and directing his cross-examination to be concluded. 8. For all the foregoing reasons, the revisional application, being CO 4229 of 2016 stands rejected. However, there shall be no order as to costs. Urgent certified copy of the judgment, if applied for, be urgently made available to the petitioner, subject to compliance with all requisite formalities. Revisional application rejected.