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2016 DIGILAW 771 (CAL)

Sushama Rani Roy Chowdhury v. Bani Roy

2016-09-29

ASHIS KUMAR CHAKRABORTY

body2016
Ashis Kumar Chakraborty, J. 1. The second appeal is against a judgment and decree of reversal dated November 24, 2009 passed by the learned District Judge, Malda in O.C. Appeal No. 34 of 2009 2. The appellant filed the suit being O.C. Suit No. 130 of 2006 against the respondents, before the learned Civil Judge (Junior Division) Malda, claiming a declaration that the deed of gift dated November 14, 2013 disclosing herself as the donor and the respondent no. 2 as donee in respect of the suit property is void and not binding upon her, declaration for title and possession of the suit property and a decree for permanent injunction restraining the respondents from transferring the suit property. The suit property involved in this appeal is a mango grove comprising 7.59 acres of land, at Khotian no. 262, Dag no. 276, P.S. Englishbazar district, Malda, the State of West Bengal. 3. In the present case, I consider it would be convenient to refer to the parties by their array in the trial Judge. 4. The case set out in the plaint shows that according to the plaintiff the suit property exclusively belongs to herself and her name has been and still is recorded in the revenue records. She is an illiterate lady, she can only sign her own name; her husband had died long time back leaving behind herself, three sons and three daughters. She had reared up all her children and all the three daughters are married. 5. The defendant no. 1 is the youngest daughter of the plaintiff, the defendant nos. 2 and 3 are the son and husband respectively of the defendant no. 1. The plaintiff claimed that on July 1, 2006 when she visited the resident of the defendant nos. 1 and 3, they told her that on November 14, 2003 she had executed a deed of gift transferring the entire suit property to the defendant no.2, they are going to transfer the suit property to a third party and asked her to leave their house. The plaintiff alleged that she never had any intention to execute any gift deed in respect of suit property in favour of anyone and she had not executed the said gift deed dated November 14, 2003. It was the further case of the plaintiff that she used to frequently visit the resident of the defendant nos. The plaintiff alleged that she never had any intention to execute any gift deed in respect of suit property in favour of anyone and she had not executed the said gift deed dated November 14, 2003. It was the further case of the plaintiff that she used to frequently visit the resident of the defendant nos. 1 and 3 and she expressed her desire that in order to avoid any future dispute in respect of the suit property amongst her children, she had decided to prepare a Will and requested the defendant nos. 1 and 3 prepare such Will. According to the plaintiff, the defendant nos. 1 and 3 told her that they would arrange for preparation of the Will and she should not discuss with any of her sons and other daughters with regard to such Will. Since the plaintiff was an illiterate lady, she reposed her trust and faith upon the defendant nos. 1 and 3 and entrusted all responsibilities on them for preparation of the said Will. She used to trust the defendant nos. 1 and 3 and there was no suspicion in her mind. The plaintiff further claimed that the defendant nos. 1 and 3 produced typed document on a stamp paper describing the same to be her Will, obtained her signature on the said document and further told her that the said document will be registered within two or three days and when the Registrar would come to their residence, she should tell him that she had executed the said document on her own volition. The plaintiff alleged that she had no intention to execute any deed of gift in respect of the suit property, in favour of the defendant no. 2 and she signed the document on November 14, 2003 but the contents of the said document were not read out or explained to herself. On these averments made in the plaint, the plaintiff claimed the aforementioned relief in the suit, against the defendant nos. 1 to 3. 6. The defendants contested the suit and they jointly filed their written statement denying all material allegations made in the plaint. They alleged that the plaintiff used to reside with them frequently, but she never expressed any intention to prepare any Will in respect of suit property. 1 to 3. 6. The defendants contested the suit and they jointly filed their written statement denying all material allegations made in the plaint. They alleged that the plaintiff used to reside with them frequently, but she never expressed any intention to prepare any Will in respect of suit property. They claimed that the plaintiff is a prudent and learned lady who had previously transferred her various properties to third parties; the defendant no. 1 respected the plaintiff as her mother who never had good relation with her three sons, she used to frequently reside with them when she had developed great affection for the defendant no. 2 and as such, she executed the deed of gift in favour of the defendant no. 2 a minor. The defendants further claimed that the plaintiff had on her own volition executed the said deed of gift dated November 14, 2003 in favour of the defendant no. 2 who was a minor and the said deed of gift was accepted by the defendant no. 1 as the mother of the defendant no. 2. According to the defendants that the plaintiff had herself gone to the advocate and obtained the said deed of gift being drafted and she executed the said deed of gift after understanding the contents thereof she admitted before the Registrar that she had executed the said deed on her own volition and obtained the same registered. The defendant nos. 1 and 2 further alleged that the said deed of gift was acted upon by the parties thereto, the plaintiff has relinquished her possession in respect of the suit property; the defendant no. 1 as the mother of the defendant no. 2 is in possession and control of the suit property and depositing the land revenue in respect of the suit property. 7. On the above pleadings, the learned trial Judge framed the following issues:- (1) Is the suit maintainable in its present form? (2) Has the plaintiff any cause of action to sue? (3) Is the deed of gift being No. 6446, dt. 14/11/03, registered on 17/11/03 executed in respect to suit property illegal and void? (4) Is the plaintiff entitled to get a decree as prayed for? (5) To what other relief/reliefs, if any, is the plaintiff entitled? 8. The parties to the suit adduced evidence before the learned trial Judge. (3) Is the deed of gift being No. 6446, dt. 14/11/03, registered on 17/11/03 executed in respect to suit property illegal and void? (4) Is the plaintiff entitled to get a decree as prayed for? (5) To what other relief/reliefs, if any, is the plaintiff entitled? 8. The parties to the suit adduced evidence before the learned trial Judge. On behalf of the plaintiff, she herself (as PW1), her elder son (PW2) and two other persons namely, Mazed Ali (PW3) and Khalil Sheik (PW4) adduced evidence. On behalf of the defendants, the defendant no. 1 herself (DW-1) Kausar Sk. (DW2), Prabir Kundu, the advocate who prepared a deed of gift (DW3), one of the attesting witnesses of the said deed of gift, namely, Md. Mozammel Hoque (DW4) and Sujit Pal (DW-5) adduced evidence. 9. On considering of the evidence adduced on behalf of the parties, the learned trial Judge found that when the plaintiff in her examination-in-chief had claimed to be an illiterate lady, she could only sign her name and that the contents of the said deed of gift were not read out or explained to her, the defendants did not adduce any cogent evidence to prove that the plaintiff was an educated person and she could read or write. The learned trial Judge found that even PW2, the elder son of the plaintiff also claimed the plaintiff to be illiterate and even that the defendant no. 1 in her evidence claimed that her mother was a truthful person and she always spoke the truth. On these findings the learned trial Judge held the plaintiff to be an illiterate lady. With regard to the execution of the said deed of gift the trial Judge found that the defendant no. 1 claimed that she was not present at the time of execution of the deed of gift by the plaintiff, she had no knowledge about the execution of the said deed of gift by the plaintiff and she did not even know Prabir Kundu, the advocate (PW-3) who had prepared the said deed of gift and got the said document registered. The learned trial Judge further found that while DW-3, the advocate claimed that the said deed of gift was executed at the residence of the plaintiff, in presence of the defendants, the only attesting witness Md. The learned trial Judge further found that while DW-3, the advocate claimed that the said deed of gift was executed at the residence of the plaintiff, in presence of the defendants, the only attesting witness Md. Mozammal Hoque (DW-4) deposed that the said document was executed at the chamber of DW3 advocate. On these findings the learned trial Judge disbelieved the case made out by the defendants that the plaintiff herself, on her own volition, obtained the said deed of gift being prepared through DW-3, Prabir Kundu or that the contents of the said deed of gift were at all read out or explained to the plaintiff 10. Considering the evidence adduced by the respective witnesses on behalf of the parties to the suit, the learned trial Judge further found that the said deed of gift did not conform to the compulsory requirement of “attestation” by at least two witnesses, as required under Section 123 of the Transfer of Property Act, read with the definition of the word ‘attested’ in Section 3 of the said Act because DW-4, who adduced evidence as the attesting witness of the deed of gift, clearly deposed in his cross-examination that the plaintiff did not execute the deed in his presence and he put the signature on the deed of gift as one, Ajit Das asked him to sign as witness in the deed and after doing so he left the chamber of DW-3 and does not know anything else. The learned trial Judge held that “attestation” in respect of the deed of gift was not duly proved and the deed of gift cannot be taken into evidence under Section 68 of the Evidence Act. 11. With the above findings, the learned trial Judge held that the evidence adduced by the respective witnesses of the defendants in the suit were full of contradiction. The learned trial Judge further held that the deed of gift has been proved to be void both ways, that is, as the execution and attestation could not be proved as per law by the defendants and they also failed to prove that the deed was actually read out or explained to the plaintiff who is an illiterate woman. The learned trial Judge further held that the deed of gift has been proved to be void both ways, that is, as the execution and attestation could not be proved as per law by the defendants and they also failed to prove that the deed was actually read out or explained to the plaintiff who is an illiterate woman. The learned trial Judge also held that the plaintiff could establish that she was a victim and misrepresentation as to the character of the deed and that the title and possession of the suit property never left the plaintiff. The learned trial Judge answered all above the issues framed in the suit in the affirmative, in favour of the plaintiff and decreed the suit. The learned trial Judge decreed that the deed of gift being No. 6446 dated November 14, 2003 registered on November 17, 2003 is illegal and void and not binding upon the plaintiff and also passed a decree declaring a declaration of the plaintiff in title and possession of the suit property. The learned trial further passed a decree for permanent injunction restraining the defendants from transferring the suit property to any person by way of sale or otherwise. 12. The defendants challenged the judgment and decree passed by the learned trial Judge by filing the appeal, being O.C Appeal no. 34 of 2009 before the learned District Judge, Malda. The learned District Judge, however, held that it is proved beyond doubt that the plaintiff executed the deed of gift. The learned District Judge further held that the defendant no. 1 had, before her marriage, transferred her share in the ancestral property to the plaintiff which was admitted by PW2 the elder son of the plaintiff. According to the learned first appellate Court, upon the collective evidence adduced by the parties it can safely be said that the plaintiff is a lady with full knowledge about the worldly affairs, her handwriting is very good and she is not an illiterate lady. According to the learned first appellate Court, upon the collective evidence adduced by the parties it can safely be said that the plaintiff is a lady with full knowledge about the worldly affairs, her handwriting is very good and she is not an illiterate lady. The learned first appellate Court further held that the plaintiff knows about her signature, there was an endorsement in the deed that the contents of the deed was read over and explained to the plaintiff and, as such, there is no scope but to hold that the deed of gift was executed by the plaintiff knowing fully well of the contents thereof, the deed of gift was written as per her instruction, she executed the same and placed it before the registering authority who was satisfied about the execution of the deed. The learned first appellate Court further held that there is no allegation against the registering authority about execution of the disputed deed as a deed of gift executed by the donee. The learned first appellate Court held that the plaintiff had filed the suit not as per her own will, but it was instituted at the instance of her sons. According to the learned first appellate Court, the plaintiff gifted the suit property to the defendant no. 2 on the ground that the defendant no. 1 had gifted her share in the ancestral house to her mother. The learned first appellate Court finally concluded that the trial Judge did not properly appreciate the evidence, facts and circumstances, the entire disputed deed of gift and wrongly came to a conclusion that the plaintiff was illiterate and the deed of gift is illegal and void and not binding upon the plaintiff. Thus, by the judgment and decree dated November 24, 2009 the learned first appellate Court set aside the judgment and decree passed by the learned trial Judge and dismissed the suit filed by the plaintiff. 13. As stated above, it is the judgment and decree for dismissal of the suit filed passed by the learned first appellate Court which is challenged in the present second appeal. At the time on admission of the second appeal, on April 9, 2010 the Division Bench of this Court framed the following four substantial questions of law. 13. As stated above, it is the judgment and decree for dismissal of the suit filed passed by the learned first appellate Court which is challenged in the present second appeal. At the time on admission of the second appeal, on April 9, 2010 the Division Bench of this Court framed the following four substantial questions of law. (a) Whether the learned Court of Appeal below committed substantial error of law in reversing the judgment and decree passed by the Trial Judge by totally overlooking the fact that in this case, the attestation by Ajit Das has not been proved by DW- 4, the other attesting witness? (b) Whether the learned Court of Appeal below committed substantial error of law in reversing the finding recorded by the Trial Judge on the question of believing the testimony of DW- 3 without giving any sufficient reason? (c) Whether the learned Court of Appeal below committed substantial error of law in holding that previously DW-1 gifted the property in favour of the plaintiff by totally overlooking the fact that the same was a sale deed and not a deed of gift? (d) Whether the learned Court of Appeal below committed substantial error of law in overlooking the evidence of DW-4 that it was the plaintiff, who herself read the deed of gift and then, put her signature and thus, the finding of the learned Court of Appeal that she was illiterate was on the face of it erroneous? 14. Mr. Partha Pratim Roy, learned advocate appearing for the plaintiff submitted that in the present case the finding of the learned first appellate Court that the plaintiff is a lady with full knowledge about the worldly affairs and she is not an illiterate lady is vitiated by patent error and perversity. He urged that the not only in the plaint, but also in her examination-in-chief filed through affidavit evidence, the plaintiff has categorically stated herself to be an illiterate person and she can only sign her name, but in cross-examination no question, not even a suggestion was put to the plaintiff on behalf of the defendants to dispute her assertions that she is an illiterate lady and she could only sign her name. Placing the evidence of the plaintiff PW-1 both in examination-in-chief and cross-examination, Mr. Placing the evidence of the plaintiff PW-1 both in examination-in-chief and cross-examination, Mr. Roy further submitted that when it was the case of the plaintiff that she was made to put her signature on the document dated November 14, 2003 to be her will and that the contents of the said document was not read out or explained to herself once again, no question, not even a suggestion was put to the plaintiff during her cross-examination to dispute her said statements. 15. Mr. Roy strenuously contended that when the plaintiff in her pleading and oral evidence substantiated that she was an illiterate lady, it was for the defendant nos. 1 to 3 to prove that the plaintiff had executed the said deed of gift out of her free will and after the contents of the said deed read over and explained to the plaintiff, but from the evidence on record it is evident that the defendants failed to discharge such onus. In support of his contention, Mr. Roy relied on the decisions of the Division Bench of this Court in the cases of Sonia Parshini vs. Sheikh Moula Baksha reported in AIR 1955 Cal 17 and Kartick Prasad Gorai vs. Neami Prasad Gorai reported in AIR 1998 Cal 278 and decision of a learned Single Judge of this Court in the case of Amina Bewa & Ors vs. Tahir Sk. & Ors. reported in (2001)2 Cal LT 361 (HC), the learned first appellate Court committed an error of law in interfering with the judgment passed by the learned trial Judge. He urged that in view of evidence adduced by the respective parties which was considered by the learned trial Judge in detail. He strenuously contended that the finding of the learned first appellate Court that the plaintiff was a lady with full knowledge about the worldly affairs, she is not an illiterate lady, she knew the contents of the Gift Deed and the contents of the deed was read over and explained to her and that the deed was written as per instruction are all perverse. 16. Mr. Roy further submitted that the defendant no. 16. Mr. Roy further submitted that the defendant no. 1, as (DW- 1) in her deposition stated that she knows nothing about the execution of the said deed and that she does not even know Prabir Kundu (DW- 3), but the latter who allegedly prepared the deed dated November 14, 2003 (Ext“A”) said that the deed was executed in presence of the defendant no. 1 (DW-1). According to him, when there was severe inconsistency in the evidence of DW- 3 who alleged that the said deed was executed at the residence of the plaintiff, whereas the DW- 4, one of the attesting witnesses to the said deed stated in his evidence that the said deed was executed at the chamber of DW-3, the learned first appellate Court committed a further error of law of in reversing the findings recorded in the judgment of the learned trial Judge, on believing the testimony of DW-3, that too without giving any sufficient reason. 17. Mr. Roy next contended that the alleged deed of gift (Ext-“A”) bears the signatures of two alleged witnesses, namely, Ajit Das and Md. Mozammal Haque, out of them only Md. Mazammal Haque alone adduced evidence as DW4, but he did not state that Ajit Das had signed the document in his presence and, therefore, the learned trial Judge rightly held that the attestation of the gift deed was not proved under Section 68 of the Evidence Act. On the basis of the above submission Mr. Roy contended that both the first and second substantial questions of law framed in the second appeal should be answered in favour of the plaintiff appellant and the second appeal should be allowed by this Court. 18. However, Mr. Jiban Ratan Chatterjee, learned senior advocate appearing for the defendants in the suit sought to support the judgment and decree passed by the learned first appellate Court on the ground that the suit filed by the plaintiff was not maintainable in law as the plaintiff did not claim any relief for setting aside of the impugned deed of gift and the plaintiff had not paid ad valorem court fees in terms of Section 7(iv)( c) of the West Bengal Court Fees Act and the plaintiff had valued the suit and paid court fee of Rs. 100/- only for relief of declaration. In this regard, Mr. 100/- only for relief of declaration. In this regard, Mr. Chatterjee relied on the decision of the Supreme Court in the case of Suhrid Singh vs. Randhir Singh and Ors. reported in (2010)12 SCC 112 and an unreported decision dated August 06, 2013 passed by a learned Single Judge of this Court in C.O. No. 1062 of 2013 (Sova Rani Dutta vs. Sri Ashis Kumar Dutta & Anr.). 19. It was further contended that apart from the impugned deed of gift the plaintiff had executed other deeds for transferring several of her properties in favour of the third parties and, therefore, it is evident that she was an educated lady. According to Mr. Chatterjee, the plaintiff and the defendant no. 2 have great affection towards each other to the extent that the latter used to call the plaintiff as “mother” and the plaintiff executed the impugned gift deed in favour of the defendant no. 2 out of her love and affection to the defendant no. 2. Relying on the decision of a learned Single Judge of this Court in the case Balai Chandra Parui vs. Smt. Durga Bala Dasi and Ors. reported in AIR 2004 Cal 276 he further contended that it is settled law that a gift deed executed by a widow who was educated and when the contents of the deed was explained to her, registration of the deed of gift, under the Registration Act, 1908, renders a gift of immovable property complete and subsequently, the donor cannot assail the said deed of gift. He also referred to the Single Bench decision of the Orissa High Court in the case of Smt. Sanjukta Ray vs. Bimelendu Mohanti reported in AIR 1997 Ori 131 and submitted that when there is a specific recital in the deed of gift regarding handing over of possession of the property by the donor to the donee, presumption arises that the possession has been handed over to the donee. It was last contended on behalf of the defendants that the case made out by the plaintiff that she had asked the defendant nos. 1 and 3 to prepare a Will on her behalf, in respect of the suit property is devoid of any merit, as she disclosed no documentary evidence calling upon the defendants to make over the original Will to herself. 20. In his reply, Mr. 1 and 3 to prepare a Will on her behalf, in respect of the suit property is devoid of any merit, as she disclosed no documentary evidence calling upon the defendants to make over the original Will to herself. 20. In his reply, Mr. Roy on behalf of the plaintiff raised serious objection to the first contention of the defendants with regard to the maintainability of the suit on the ground of absence of any prayer of cancellation of the impugned deed of gift and on account of any requirement of payment of ad valorem court fees. He strenuously urged that not only the said contentions raised by the defendants are devoid of any merit, but in any event, in the absence of any cross-objection of the defendants against the judgment and decree passed by the learned first appellate Court the defendants are not entitled to urge the said contention in the present second appeal. On this ground, as also otherwise he submitted that the decision of the Supreme Court in the case of Suhrid Singh (supra) and the unreported decision of a learned /Single Judge of this Court dated August 06, 2013 in the case of Sova Rani Dutta (supra) cited by the defendants have no application in this case. 21. He further submitted that the contention of the defendants that the plaintiff is an educated lady is ex-facie contrary to the evidence adduced by the parties to the suit and no document was proved by the defendants to substantiate that the plaintiff had executed any other deed to prove that she is not an illiterate lady nor the plaintiff, during her cross-examination, was confronted with any other deed executed by herself in respect of any immovable property to prove that she is not an illiterate lady. According to Mr. Roy, admittedly the defendant no. 2 did not appear before the learned trial Judge to adduce any evidence to claim that he himself and the plaintiff have great affection towards each other or that he used to call the plaintiff has “mother”. He next contended that the impugned deed of gift reflects the signature of the defendant no. 1 towards acceptance the gift of the immovable property on behalf of her minor son, the defendant no.2, but the defendant no. He next contended that the impugned deed of gift reflects the signature of the defendant no. 1 towards acceptance the gift of the immovable property on behalf of her minor son, the defendant no.2, but the defendant no. 1 herself in her cross-examination stated that she has no knowledge anything about either the execution or registration of the impugned deed of gift and, as such, the defendants cannot contend that in order to accept the gift on behalf of her minor son, the defendant no. 1 had put her signature on the impugned deed of gift either at the time of its execution or at the time of its registration. He strenuously urged that further in the instant case, the impugned deed of gift does not record delivery of possession of the property in question by the plaintiff to any of the defendant nos. 1 and 2, but the defendants have also failed to substantiate as to when and how the plaintiff delivered possession of the property to the defendant no. 1. Drawing the attention of the Court to the land revenue records proved and exhibited by the plaintiff, Mr. Roy further submitted that the plaintiff is still paying taxes and revenue in respect of the property in question and she is still possessing the said property. Thus, according Mr. Roy, neither the decision of the learned Single Judge of this Court in the case of Balai Chandra Parui (supra) nor the decision of the Orissa High Court in the case of Sanjukta Ray (supra) has any manner of the application in the present case. 22. I have considered all the materials on record and the submissions of both Mr. Partha Pratim Roy and Mr. Jiban Ratan Chatterjee, learned counsel appearing for the respective parties. 23. So far as the argument advanced on behalf of the defendants in this second appeal, with regard to the maintain-abilities of the suit in the absence of any relief being claimed by the plaintiff for setting aside of the said deed of gift and payment of court fees, I am unable to convince myself to entertain such contention. This is because from the memorandum of appeal filed before the learned first appellate Court, against the judgment and decree passed by the learned trial Judge it is evident that the defendants did not raise such contention before the learned first appellate Court. This is because from the memorandum of appeal filed before the learned first appellate Court, against the judgment and decree passed by the learned trial Judge it is evident that the defendants did not raise such contention before the learned first appellate Court. Further, against the judgment and decree passed by the learned first appellate Court, the defendants have not filed any cross-objection before this Court pressing the said ground. For all these reasons, neither the decision of the Supreme Court in the case of Suhrid Singh (supra) nor the unreported decision of a learned Single Judge of this Court in the case of Sova Rani Dutta (supra) cited on behalf of the defendants respondents have no application in the present case. 24. With regard to the first question of law raised in this appeal, as per Section 123 of the Transfer of Property Act, 1882 a valid gift of an 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. The word “attested” in relation to an instrument under Section 3 of the Act of 1882, means attested by two or more witnesses, each of whom has seen the executant sign or affix his mark to the instrument or has received from the executant a personal acknowledgement of his signature or mark and each of whom has signed the instrument in the presence of the executantly, but it shall not be necessary that more than one of such witnesses shall have been present at the same time. 25. In her examination-in-chief the plaintiff did not admit that she had signed the deed of gift (Ext-“A”) in presence of any witness and in her cross-examination she denied to know any of witnesses to the said document Ajit Kumar Das or Mohd. Hussain and on behalf of the defendants respondents no suggestion was put to the plaintiff that she put her signature on the said document in presence of any one of the witness Ajit Kumar Das and Mohd. Hussain or any of them put their respective signature in her presence. Even the defendant no. 1 in her evidence did not allege that the plaintiff put her signature in front of any of the two witnesses, whose signature appear on the impugned document. Hussain or any of them put their respective signature in her presence. Even the defendant no. 1 in her evidence did not allege that the plaintiff put her signature in front of any of the two witnesses, whose signature appear on the impugned document. Further, PW-3, Prabir Kundu the deed writer, did not adduce evidence that either the plaintiff put her signature in presence of any of the two witnesses named in the impugned document. Although PW-4, in his examination-in-chief alleged that the plaintiff put her signature on the impugned document in presence of himself and the other witness Ajit Das, but in cross-examination he stated that he signed the deed as per the instruction of Ajit Das and the latter is not a witness in the deed. Considering all these evidence in detail, the learned trial Judge held that attestation in respect of the deed has not been duly proved and the deed of gift cannot be taken into evidence under Section 68 of the Evidence Act and this was one of the grounds for the learned trial Judge to hold that the deed of gift to be void and to decree the suit. However, the learned first appellate Court set aside the judgment and decree passed by the learned trial Judge, without finding any infirmity with the said finding of the learned trial Judge. For all these reasons, I accept the contention of the plaintiff that the learned District Judge fell in an error of law to reverse the finding of the learned trial Judge that attestation in respect of the deed of gift has not been proved and the deed of gift cannot be taken into evidence under Section 68 of the Evidence Act. Therefore, the first substantial question of law framed in the second appeal is answered in favour of the plaintiff appellant. 26. In the plaint, as well as in her examination-in-chief the plaintiff categorically stated that she is an illiterate lady, she cannot read or write, she can only put her signature. She further stated in her pleading and examination-in-chief that the defendant nos. 26. In the plaint, as well as in her examination-in-chief the plaintiff categorically stated that she is an illiterate lady, she cannot read or write, she can only put her signature. She further stated in her pleading and examination-in-chief that the defendant nos. 1 and 3 without explaining the document to her, took her signature on some stamp paper and with the help of their known persons on November 14, 2003, as if the same was her will and the said defendants also told her that the said Will shall be registered after some days later and they advised her that when the Registrar will ask her, then she has to say that she has donee and put her signature on the stamp and demi paper according to her will. The plaintiff also asserted in her pleading and examination-in-chief that she had no intention to execute any deed of gift in favour of the defendant no. 2 either on November 14, 2003 or November 17, 2003 or on any other day. In her cross-examination, the plaintiff asserted that she is not educated, she can only write her name, she cannot read whatever is written in her affidavit of evidence in examination-in-chief or in her plaint and it was her advocate who had prepared the same as per her instruction and the contents of both the plaint and her affidavit-in-chief were read out and explained to her. In her cross-examination the plaintiff reiterated that she had put her signature on the impugned document in good faith as per the instruction her daughter of the defendant no. 1, who did not explain to her what was written in the impugned document and she has not executed any deed of gift in favour of her daughter or her husband or her child. She also denied to know either Prabir Kundu or any one named Ajit Kumar Das or Mohd. Hussain. From the cross-examination of the plaintiff it is clear that no question, not even a suggestion was put to her on behalf of the defendants disputing her statement that she is an illiterate lady who can only write her name, that she had put her signature on the impugned document as the defendant no. 1 daughter asked her to do so, but the defendant no. 1 did not explain to her what was written in the impugned document. 1 daughter asked her to do so, but the defendant no. 1 did not explain to her what was written in the impugned document. During cross-examination the plaintiff the defendants did not put any question, far less any suggestion that the plaintiff herself approached Prabir Kundu (DW-3) to prepare the impugned deed or for registration thereof or that she had put her signature on the impugned deed after she herself read the contents of the same or that the contents of the impugned document was read over or explained to her by Prabir Kundu (DW-3). Not even a suggestion was put to the plaintiff, during her cross-examination that the defendant no. 1 had accepted either the gift of the property in question or possession thereof on behalf of her minor son, the defendant no. 2. 27. Now, in her examination-in-chief the defendant no. 1, who alone adduced evidence on behalf of the defendants, stated that on November 14, 2003 the advocate Prabir Kundu informed her mother and herself to attend his chamber at 4 P.M. and accordingly, she herself along with her mother, went to the house of that Advocate, where the Commissioner visited and asked her mother about the nature of the Deed which is going to be registered and she stated that as per her advice, the Gift Deed has been executed by herself and after that the Commissioner took L.T.I. and signature of her mother on the Deed and the Registration Documents which the Commissioner brought with him. However, in her cross-examination the defendant no. 1 stated that she does not know Prabir Kundu, she has not ever met Prabir Kundu face to face and she has no knowledge about the execution of the impugned gift deed. The defendant even did not say when did she put her signature or the said deed of gift to accept the gift on behalf of her minor son, the defendant no. 2. 28. In the above background, when Prabir Kundu, the advocate (DW-3) deposed that he read out the deed to the plaintiff at her residence, in presence of the defendant no. 2. 28. In the above background, when Prabir Kundu, the advocate (DW-3) deposed that he read out the deed to the plaintiff at her residence, in presence of the defendant no. 1 the learned trial Judge held that there is no cogent evidence to prove that the deed was read out or explained to the plaintiff and that the entire deposition of DW-3, is doubtful and not corroborated by any other witness and his evidence that he read out and explained the deed to the plaintiff cannot be accepted. This finding of the learned trial Judge on detailed discussion of the evidence on record was based on sound reasoning and the learned counsel appearing for the defendant could not point out any infirmity in such finding. 29. In the present case, in spite of the uncontroverted evidence of the plaintiff that she is an illiterate lady, who can only write her name and she had put her signature on the impugned document as the defendant no. 1 daughter asked her to do so, but the defendant no. 1 did not explain to her what was written in the impugned document and the admission of the defendant no. 1 that the plaintiff, her mother is a good person and also truthful , the learned first appellate Court by ignoring all the material evidence on record held that the plaintiff is not illiterate and the contents of the impugned deed was read over and explained to her by DW-3 Prabir Kumar Kundu, the lawyer. The learned first appellate Court, however, without disclosing any reason reversed the finding recorded by the learned trial Judge after detailed consideration of the evidence adduced by the respective witnesses, that the deposition of DW-3 is doubtful and not corroborated and his evidence that he read out and explained the deed to the plaintiff cannot be accepted . Thus, the second substantial question of law is answered in the affirmative. 30. After considering the evidence adduced by the witnesses of the respective parties, as discussed above, it is proved beyond doubt that the plaintiff proved herself to be an illiterate lady. Thus, the second substantial question of law is answered in the affirmative. 30. After considering the evidence adduced by the witnesses of the respective parties, as discussed above, it is proved beyond doubt that the plaintiff proved herself to be an illiterate lady. As held by the Division Bench of this Court in the case of Sonia Parshini (supra) and the Single Bench decision of this Court in the case of Amena Bewa (supra), when it was proved that the plaintiff was an illiterate lady, the onus lay heavily on the defendants to prove that the document dated December 14, 2003 being (Ext-“A”) was, in fact, read out to the plaintiff and she understood the contents of the same. In the case of Sonia Parshini (supra), the Division Bench of this Court held that and omnibus finding to the effect that the appellant was a ‘woman of the world’, a phrase not easy to understand and one arrived without real basis in evidence – cannot possibly take, the place of proof of the essential fact that she comprehended the terms of the Kobala by which she purported to have parted with all that she possessed and in the absence of satisfactory evidence to establish that the Kobala was read out to her so that she was enabled to understand the contents of the document, the Kobala was invalid and not binding on the appellant. Even in the case of Kartick Prasad Gorai (supra) cited by the plaintiff, the Division Bench of this Court although the protection given to a ‘pardanashi’ woman as regards execution of a deed is not available to an illiterate man who has sufficient experience of dealing with property even then in case of a deed executed by such a person, the fact that the contents of the deed were read over and explained to the executant must be proved by the person who wants to take advantage of such deeds (para-21). However, in the present case, it was proved beyond doubt that the defendants failed to discharge such onus. 31. Further, one of the grounds mentioned by the learned first appellate Court to hold that the plaintiff had executed the impugned deed of gift was that the defendant no. 2 had gifted her share in the ancestral house to the defendant no. 1. However, what the defendant no. 31. Further, one of the grounds mentioned by the learned first appellate Court to hold that the plaintiff had executed the impugned deed of gift was that the defendant no. 2 had gifted her share in the ancestral house to the defendant no. 1. However, what the defendant no. 1 had alleged in her examination-in-chief before the learned trial Judge was that she had executed a sale deed transferring her share in the ancestral property to the plaintiff. Therefore, the third substantial question of law framed in this appeal is answered by holding that the learned first appellate Court committed a substantial error of law by overlooking the fact that it was only by a sale deed and not by a deed of gift that the defendant no. 1 had transferred her share in the ancestral property to the plaintiff. 32. When according the defendant no. 1 herself she did not know anything about the execution or registration of the deed in question, there is no scope to accept her case that she had accepted the gift on behalf of the defendant no. 2, her minor son, by putting her signature on the impugned deed of gift, before the registering authority as appears from the impugned deed, being Ext.-“A” of the proceeding. 33. It is settled law that when there is a registered deed of conveyance or deed of gift or other documents, the presumption is that the said conveyance or the deed or the document was executed as per the requirement of law, but such presumption is always a rebuttable presumption. In the facts of the case at hand, when the impugned deed of gift (Ext.-“A”) mentions that the defendant no. 1 had put her signature to accept the said gift on behalf of the minor son before the registering authority, but when the defendant no. 1 herself in her cross-examination stated that she was not present at the time of either execution or registration of the impugned deed of gift, there is no scope to hold that the impugned deed of gift was accepted on behalf of the defendant no. 2 who was a minor at the relevant point of time. In the absence of proof of acceptance of the alleged gift on behalf of the defendant in this case, there was no valid gift of the property in question by the plaintiff to the defendant no. 2 who was a minor at the relevant point of time. In the absence of proof of acceptance of the alleged gift on behalf of the defendant in this case, there was no valid gift of the property in question by the plaintiff to the defendant no. 2 as required under Section 122 of the Transfer of Property Act. Further and in any event, when the plaintiff in her plaint, as well as in her evidence categorically asserted not to have executed the impugned deed of gift, no question, not even a suggestion was put to her in cross-examination that alleged commissioner or anyone else from the concerned registering office visited her to enquire anything about the execution of the impugned deed of gift. Even the said Prabir Kumar Kundu (DW-3) in his evidence did not state that the concerned officer of the registering authority had any occasion to ask the plaintiff about execution of the deed of gift by herself. Even the commissioner who allegedly appeared before the plaintiff for registration of impugned deed of gift was not summoned by the defendants to prove execution and registration of the deed of gift (Ext-“A”) by the plaintiff. 34. For all the above reasons, the findings of the learned first appellate Court that the plaintiff signed the impugned deed of gift knowing fully well the contents of the deed and the same was read over and explained to her, she placed the said deed before the registering authority who was satisfied about the deed of gift to be as per her own voluntary execution and in the instant case, the identification and enquiry about execution of the deed was complete, amount to a patent error of law and perversity, as well. 35. In the instant case, there is no mention in the impugned deed of gift (Ext-“A”) that possession of the property in question was delivered by the plaintiff to the defendant nos. 1 or 2 and as already discussed above the defendants have failed to prove delivery of possession of the property by the plaintiff to any of them. Thus, none of the said decisions cited by the defendants, in the cases of Balai Chandra Parui (supra) or Sanjukta Ray (supra) has any application in this case. 36. 1 or 2 and as already discussed above the defendants have failed to prove delivery of possession of the property by the plaintiff to any of them. Thus, none of the said decisions cited by the defendants, in the cases of Balai Chandra Parui (supra) or Sanjukta Ray (supra) has any application in this case. 36. For all the above reasons, I am constrained to hold that the impugned decision of the learned District Judge to set aside the judgment and decree passed by the learned trial Judge and declare that the deed of gift executed by the plaintiff in favour of the defendant no. 2 is a valid and legal deed of gift, is vitiated by patent error of law, which cannot be sustained. 37. In view of the above decisions with regard to the first, second and third substantial questions of law and the above contentions raised on behalf of the defendants, I find that the fourth substantial question of law framed by the Division Bench has become redundant and there is no necessity to deal with the said question of law. 38. For all the foregoing reasons, the appeal, being SAT No. 55 of 210 filed by the plaintiff stands allowed. The judgment and decree dated November 24, 2009 passed by the learned District Judge, Malda in O.C. Appeal No. 34 of 2009 stands set aside and the judgment and decree dated May 25, 2009 passed by the learned trial Judge in O.C. Suit No. 130 of 2006 is restored. 39. The Department is directed to forthwith send down the lower Courts’ record to the learned Court below. 40. However, there shall be no order as to costs. 41. Let urgent certified server copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.