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2017 DIGILAW 285 (CAL)

Pratima Guchait v. Nirupam Guchait

2017-03-14

ASHA ARORA, JYOTIRMAY BHATTACHARYA

body2017
JUDGMENT : Jyotirmay Bhattacharya, J. This second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Fast Track Court, Chandernagore on 12th November, 2014 in Title Appeal No. 79 of 2011 reversing the judgment and decree dated 7th March, 2011 passed by the learned Civil Judge (Junior Division), 2nd Court, Chandernagore, Hooghly in Title Suit No. 108 of 2008 at the instance of the plaintiffs/appellants. 2. Let us now consider the merit of the appeal to find out as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure or not. 3. Here is the case where we find that the plaintiffs have filed a suit for declaration of their title in the suit property after setting aside the deed of gift executed by Birendra Nath Guchait in favour of the defendants on the ground that the said deed of gift was procured by the defendants from the said Birendra Nath Guchait by way of misrepresentation. The parties are closely related to each other. Defendants are the sons of Birendra Nath Guchait. Plaintiff no.1 is the widow of the predeceased son of Birendra Nath Guchait. Plaintiff nos. 2 and 3 are the son and daughter of the predeceased son of Birendra Nath Guchait. The legal heirs of the predeceased son of Birendra Nath Guchait filed this suit against the surviving sons of Birendra Nath Guchait. 4. The defendants contested the said suit by filing written statement denying the allegations made out by the plaintiffs in the plaint. Parties led evidence in support of their respective claims. 5. Learned Trial Judge after considering the pleadings of the parties and their evidence came to the conclusion that the deed of gift was not executed by Birendra Nath Guchait in favour of the defendants voluntarily and spontaneously. The learned Trial Judge, thus, held that the said deed of gift was procured by the dones by misrepresentation caused to have been done upon their father. Thus, the learned Trial Judge declared that the said deed of gift is void and collusive and the same has not been acted upon. Plaintiffs' one-fifth share in the suit property was declared by the learned Trial Judge. 6. Thus, the learned Trial Judge declared that the said deed of gift is void and collusive and the same has not been acted upon. Plaintiffs' one-fifth share in the suit property was declared by the learned Trial Judge. 6. Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Judge, the defendants preferred an appeal before the learned first Appellate Court. Learned first Appellate Court reversed the said judgment and decree of the learned Trial Judge by holding, inter alia, that the pleadings regarding execution of the deed of gift by the donor under misrepresentation and/or fraud having not been pleaded specifically and such pleading having not been made out in conformity with the provision contained in Order 6, Rule 4 of the Code of Civil Procedure, the learned Trial Court ought to have held that the evidence of fraud and/or misrepresentation led by defendants cannot be relied upon in view of the evasive pleading made out in the plaint. 7. The findings of the learned first Appellate Court regarding admissibility of the deed of gift in the absence of examining both the attesting witnesses, have also been challenged in this appeal. 8. Learned first Appellate Court held that in view of the provision contained in Section 68 of the Indian Evidence Act, 1872, a deed which is required to be attested can be admitted into evidence if the attestation of the said document is duly proved at least by one witness. 9. Here is the case, where we find that one of the attesting witnesses was examined at the instance of the defendants and execution of the deed of gift by Birendra Nath Guchait was duly proved by the said attesting witness. Thus, the learned first Appellate Court held that there was no irregularity and/or illegality in the process of admitting the deed of gift into evidence. 10. Learned first Appellate Court also recorded that the donor was a literate person and he consciously executed the said deed of gift after going through the contents thereof. It was recorded in the judgment that the deed of gift was executed on a particular date and the same was presented for registration on the subsequent date. Even the deficit stamp duty was also paid on another subsequent date. It was recorded in the judgment that the deed of gift was executed on a particular date and the same was presented for registration on the subsequent date. Even the deficit stamp duty was also paid on another subsequent date. Since execution and registration of the said deed of gift was not completed in one sitting, learned first Appellate Court disbelieved the plaintiffs' claim that the said deed of gift was caused to have been executed by the donor under the influence of the donees. 11. Sitting in this jurisdiction, we do not like to disturb such findings of fact which was arrived at by the final court of facts, particularly when we do not find any perversity in such findings of the learned first Appellate Court. 12. Learned advocate appearing for the plaintiffs/appellants submits before us that the deed of gift has not been proved by the defendants in accordance with law and as such, the said document ought not to have been admitted into evidence. He has relied upon the provision contained in Section 68 of the Indian Evidence Act, 1872. 13. We cannot agree with such submission of the learned advocate appearing for the plaintiffs/appellants because of the proviso added to Section 68 of the Indian Evidence Act. The proviso added to Section 68 of the said Act makes it abundantly clear that in case, execution of the document by the donor is not specifically denied, proof of execution of such document by examining the attesting witness is not necessary. Only exception is the Will. 14. Section 123 of the Transfer of Property Act provides that registration of the deed of gift, irrespective of valuation of the gifted property, is compulsory. Execution of the deed of gift is required to be attested by at least two attesting witnesses. Here we find that execution of the deed of gift by the donor was attested by two attesting witnesses. Though as per the proviso added to Section 68 of the Indian Evidence Act, no attesting witness was required to be examined for proving the said document as execution of the deed of gift is not denied in the instant case, but still then, the defendants examined one of the attesting witnesses who proved not only execution of the said document by the donor, but due attestation thereof by the attesting witness. As such, we hold that there was no illegality on the part of the court below in admitting the said document into evidence. 15. We also concur with the findings of the learned first Appellate Court that at the time of execution of the said document, Birendra Nath Guchait was physically fit and/or mentally alert as he also executed another deed for selling his another property during the contemporary period and conscious execution of the said deed by Birendra Nath Guchait has not been challenged in the suit. 16. As such, we do not find involvement of any substantial question of law in this second appeal for which the appeal is required to be admitted for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure. We, thus, decline to admit this appeal. The appeal, thus, stands dismissed.