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2018 DIGILAW 989 (CAL)

Karabi Naskar v. Tanusree Pratihar

2018-12-18

SABYASACHI BHATTACHARYYA

body2018
JUDGMENT : 1. The present challenge is directed against an order whereby the trial court, after remand, dismissed an application under Section 45 of the Evidence Act filed by the present petitioner on the ground that the document, with which the disputed document was sought to be compared, was not an admitted document. 2. The brief background of the case is as follows: The present petitioner claims by virtue of a deed of gift executed on September 27, 2008, while the opposite parties claim by virtue of a deed of gift by the same donor, who is the admitted original owner of the property, dated May 07, 2008. Three suits, filed by the parties between themselves, were directed to be heard analogously. One of the suits was filed by the present petitioner for partition of the suit property as well as declaration that the prior deed of gift executed in favour of the opposite parties was void, invalid and inoperative. 3. The opposite parties, on the other hand, filed two suits, one primarily for partition and the other seeking declaration of the opposite parties' title and consequential reliefs. 4. Upon analogous hearing and disposal of the suits, the matter went up in an appeal, when the appellate court remanded the matter to the trial court on the observation that the trial court ought to have framed an additional issue on the point whether both the deeds, executed by Janini Naskar (the admitted original owner), were genuine or not. The appellate court further held that the trial court ought to have disposed of the pending application under Section 45 of the Evidence Act filed by the present petitioner for examination of the left thumb impression (L.T.I.) of the donor on the deed of gift executed in favour of the present petitioner, which the petitioner claimed to be an admitted document. 5. Upon remand, the present petitioner moved the pending application for appointment of expert, under Section 45 of the Evidence Act, as per direction incorporation in the remand order by the appellate court. By the impugned order dated September 15, 2018, the trial court refused such prayer on the ground that the deed of gift executed in favour of the petitioner by Jamini Naskar was not an admitted document. 6. By the impugned order dated September 15, 2018, the trial court refused such prayer on the ground that the deed of gift executed in favour of the petitioner by Jamini Naskar was not an admitted document. 6. Learned counsel for the petitioner argues that the trial court, while coming to such finding, primarily relied on the lack of proper denial to the deed of gift executed in favour of the opposite parties in the written statement of the present petitioner in one of the suits of the opposite parties. However, it is pointed out by learned counsel for the petitioner that, in the petitioner’s suit, a specific declaration was sought as to the alleged deed of gift executed on May 07, 2008 and registered on May 09, 2008 in favour of the opposite parties, being void, invalid and inoperative. It is argued that since the three suits are being heard analogously, the averments and specific challenge pleaded in the petitioner’s suit ought to have been factored in while considering whether the petitioner had disputed the deed or not. 7. Learned counsel for the opposite parties, on the other hand, submits that the deed of the opposite parties was not objected to by the petitioner when the same was marked as an exhibit in the court below, while the suit was pending initially in the trial court. In such view of the matter, it cannot be said that the said deed was disputed at all, as rightly found by the trial court. 8. In this context, learned counsel for the opposite parties cites two judgments, reported respectively at (2003) 8 SCC 752 (R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple & Anr.) and (2010) 8 SCC 423 (Shalimar Chemical Works Limited vs. Surendra Oil and Dal Mills (Refineries) & Ors.) The basic proposition, which was laid down in the said judgments, was that the objections as to the mode of proof of a document had to be taken when the document was tendered for being marked as an exhibit. The question as to the admissibility of such evidence, however, could be raised even at a later juncture. The question as to the admissibility of such evidence, however, could be raised even at a later juncture. By placing reliance on such judgments, learned counsel for the opposite parties argues that as far as the mode of proof of the deed of gift in favour of the opposite parties was concerned, the same was not objected to by the petitioner at the point of time when the said document was marked as an exhibit. In view of absence of such objections, it does not lie in the mouth of the petitioner, it is argued, that the said document is disputed, irrespective of the pleadings. 9. It is further submitted by learned counsel for the opposite parties that the challenge to the deed of gift in favour of the opposite parties, thrown by the petitioner in the petitioner’s suit, was not a proper challenge as envisaged in Section 31 of the Specific Relief Act, 1963. By citing a Division Bench judgment of this Court, reported at (2008) 65 CHN 639 (Hamida Begum alias Alo Bibi vs. Umran Bibi & Ors.), it is argued, that it was laid down therein, inter alia, that Section 31 of the 1963 Act contemplates that cancellation of the disputed deed has to be sought by the plaintiff even if the plaintiff was not bound by the said deed. Since, in the present suit, the petitioner did not pray for cancellation but only a declaration as to the deed being void, invalid and inoperative, the same was not a proper challenge as contemplated in Section 45 of the Evidence Act to render a document disputed. 10. In such circumstance, learned counsel for the opposite parties argues that the learned judge was correct in coming to the finding arrived at in the impugned order. 11. Learned counsel for the opposite parties, by pointing out to the opposite parties’ written statement filed in Title Suit No. 16088 of 2014, in particular paragraph 9 thereof, submits that it was specifically averred by the opposite parties therein that the said Smt. Jamini Naskar “has not executed and registered any such Deed of Gift dated 27.09.2008 in favour of the plaintiffs”. It was further averred that the said deed of gift in question was a false and fictitious instrument. 12. It was further averred that the said deed of gift in question was a false and fictitious instrument. 12. Learned counsel for the petitioner, in reply, submits that the immediately succeeding sentence in paragraph 9 of the written statement of the opposite parties, indicated that the opposite parties made an alternative averment that even if there be any such deed of gift dated 27.09.2008, allegedly executed and registered by the said Smt. Jamini Naskar, allegedly in favour of the plaintiff, the said deed in question had no binding effect upon the opposite parties. 13. It is, thus, argued that such alternative argument diluted the challenge to the concerned deed of gift in favour of the petitioner. 14. After going through the materials on record and contentions of both sides, it appears that the proposition in contention in the present proceeding was not directly in contention in the two cited judgments of the Supreme Court. The primary consideration in the said two cited matters was as to the point of time at which an objection could be taken to admissibility of a piece of documentary evidence. It was held by the Hon’ble Supreme Court in both the said judgments that the omission to object becomes fatal as to mode of proof of a document, if not taken at the time of tendering such document in an evidence. Further, it was held that the question of admissibility of such evidence could be taken even at a later juncture. 15. The question here does not pertain merely to admissibility of evidence but as to whether the contents thereof were admitted or not. Hence, there is a marked distinction between the ratio laid down in the cited judgments and the present case and, as such, the two cited judgments are not applicable in the present case. 16. As regards the Division Bench judgment of this Court, cited on behalf of the opposite parties, the two questions which fell for consideration in the said judgment, were as follows: (i) Whether the suit filed by the respondents in the year 1991 was barred by limitation and (ii) Whether the defence in the suit for partition would be barred simply because the suit filed by the respondents taking self-same plea was liable to be dismissed on the ground of limitation. 17. 17. It was held by the Division Bench that simply because a particular relief in respect of a property had become barred by limitation, the right to such property was not extinguished. 18. In such context, the Division Bench, upon considering the contents of Section 31 of the Specific Relief Act, which was also quoted therein, observed that a combined reading of Section 31 of the Specific Relief Act and Section 27 of the Limitation Act made it abundantly clear that if a party admitted execution of a deed of transfer in favour of another, but claims that the said transaction is vitiated by fraud either as to the contents or as to the nature of the transaction, he was under obligation to file a suit under Section 31 of the Act for avoiding such transaction within the period of limitation provided in Article 59 of the Limitation Act and the period is three years and the time started running when the facts entitling the plaintiff to cancel to set aside the instrument first become known to him. 19. In this context, Section 31 of the Specific Relief Act, 1963 is required to be looked into. Such provision is quoted below: “31. When cancellation may be ordered. – (1) any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.” 20. From a reading of Section 31 of the Act of 1963, it is evident that the aggrieved person may sue to have the disputed document adjudged void or voidable. The rest of the sentence in Section 31(1) of the said Act stipulates that the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. The rest of the sentence in Section 31(1) of the said Act stipulates that the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. As such, a distinction can be drawn between what the plaintiff has to sue for and what remedy the Court can grant. It would suffice even as per the said Section, if the plaintiff sues for the document in question to be adjudged void or voidable. Upon being satisfied on the condition as stipulated therein, it would then be duty of the court to grant a relief in the form of delivering up and cancelling the said deed. Hence, on a meaningful reading of the said provision, it could not be argued that unless the plaintiff categorically sues for the document to be cancelled, the relief sought as regards being void and voidable, would not fall within the purview of Section 31 of the Act of 1963. In view of the facts, the argument advanced on behalf of the opposite parties as to the present petitioner having not challenged the execution of the deed of gift in favour of the opposite parties cannot hold good ground. 21. It is also trite that since three suits are being heard analogously, the pleadings in each of the suits can be seen as interchangeable with each other. As such, it does not lie in the mouth of the opposite parties to say that in a particular suit amongst those being heard analogously, if an application is made, the pleading only of the said suit could be looked into for deciding the application and not the pleading in the other suits. As such, the present petitioner having not specifically objected to the deed of the opposite parties, he same has to be labelled as a disputed document. It is more so, in view of the specific observations mode in the remand order of the appellate court as regards an additional issue being framed as to the veracity of such document. 22. However, what creates the utmost hindrance in accepting the argument of the petitioner is that the present opposite parties categorically denied the execution and registration of the deed of gift dated September 27, 2008 in favour of the plaintiff/petitioner in Title Suit No. 16088 of 2014. 22. However, what creates the utmost hindrance in accepting the argument of the petitioner is that the present opposite parties categorically denied the execution and registration of the deed of gift dated September 27, 2008 in favour of the plaintiff/petitioner in Title Suit No. 16088 of 2014. In view of such specific objection having been taken, the petitioner’s contention, that the gift deed allegedly executed in favour of the petitioner was admitted by the opposite parties, is demolished. In view of the specific objections raised in the pleading of one of the suits as to the execution of such document, it has to be necessarily said that the L.T.I. of the donor appearing in the said deed, which is the plinth of such execution, was implicitly also challenged by the opposite parties. In such scenario, the Court was correct in its conclusion of rejecting the application, if not on the grounds as observed made in the impugned order, at least on the ground that the document with which a comparison was sought, was not an admitted document. 23. However, the trial court, as it is rightly submitted on behalf of the petitioner, acted without jurisdiction in violation of the remand order of the appellate court in pre-deciding the additional issues, which have to be framed in terms of the remand order by considering the evidence of the contesting parties which were already on record and holding that none approached for adducing further evidence in the above subject matter. As such, the trial court ought to have given opportunity to both sides to adduce additional evidence. In the event of failure of the parties to so adduce, the court undoubtedly could proceed with the matter on the basis of evidence already on record. 24. As regards the application under Section 45 of the Evidence Act, this Court is of the view, as corroborated by the observations above, the document with which comparison was sought, was not an admitted document and, as such, the application under Section 45 of the Evidence Act, in its present form, should fail. However, for the ends of justice, another opportunity should be given to the petitioner to produce an admitted document for the purpose of such comparison, particularly to honour the finding of the appellate court while sending the matter on remand. 25. However, for the ends of justice, another opportunity should be given to the petitioner to produce an admitted document for the purpose of such comparison, particularly to honour the finding of the appellate court while sending the matter on remand. 25. In the circumstances, C.O. No. 4209 of 2018 is disposed of by modifying the impugned order to the extent that the present petitioner will be permitted to renew her prayer for appointment of an expert to examine the L.T.I. of Jamini Naskar in the deed of gift allegedly in favour of the opposite parties upon production of a further admitted document, apart from the deed in favour of the petitioner. 26. Such exercise has to be completed within one working month from this day. 27. In the event the petitioner can produce any admitted document, the petitioner can renew her prayer for appointment of expert within the aforesaid stipulated period. If an application is so made, the trial court will adjudicate the same upon giving hearing to both sides in accordance with law, without being influenced by any observation made in the present order or in the order impugned herein. 28. It is further made clear that the trial court, even after adjudication of the new application, if filed by the petitioner as indicated above, will proceed to frame additional issues as directed by the appellate court on remand and decide those as expeditiously as the business of the said court permits, without granting any unnecessary adjournment to either side. 29. Upon framing such additional issues, the trial court will give to both sides a short window of opportunity as the trial court deems fit for the adduction of further evidence in that regard if the parties so wished. 30. There will be no order as to costs. 31. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of all requisite formalities.