NEMAI CHANDRA DEY (DEAD) THROUGH LRS v. APRIL 19

In this connection there is a contention raised by the appellants that the plaintiff has executed a number of documents by way of sale deeds. The plaintiff, according to the appellants was, in fact, literate, though a pardahnashin lady. The first defendant has a case that it was a suit which was laid on the strength of the influence wielded by the nephew of the plaintiffs- sister in whose house the plaintiff was staying for some time. The scribe has been examined as a witness. The attesting witness has been examined. In this case, no doubt, the plaintiff has given evidence that she executed the gift deeds in question on the basis of her being under the impression that power of attorney was executed. There were other items of evidence which were before the Court also. This Court is of the view that the interest of justice do require a remand to the first appellate Court in the nature of the order which has been passed by the Courts.

Accordingly, the impugned judgments will stand set aside. The appeals are allowed and the case is remanded back to the first appellate Court. [Paras 14 & 15][1082-E-H; 1083-A-D Santosh Hazari v. Purushottam (2001) 3 SCC 179 : [2001] 1 SCR 948 – relied on. Madhukar and Others v. Sangram and Others (2001) 4 SCC 756 : [2001] 3 SCR 138; Mst. Kharbuja Kuer v. Jangbahadur Rai and Others AIR 1963 1203 : [1963] 1 SCR 456 - referred to. Case Law Reference [2001] 3 SCR 138 [2001] 1 SCR 948 [1963] 1 SCR 456 referred to relied on referred to Para 6 Para 6 Para 14 CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.14699- 14701 of 2015. From the Judgment and Order dated 12.12.2013 of the High Court of Calcutta in S.A.T. No.40 of 2013 and Order dated 25.03.2014 in S.A.T. No.40 of 2013 with C.A.N. No.12727 of 2013. Joydeep Mazumdar, Rabindra Narayan Dutta, Rohit Dutta, Priyata Chakraborty, Ms. Shalini Kaul, Advs. For the Appellants.

Shaffi Mather, Siddhartha Chowdhury, Amit Pawan, Hassan Zubair Waris, Ms. Shivangi, Aakarsh, Abhishek Amritanshu, Advs. for the Respondents. The Judgment of the Court was delivered by K. M. JOSEPH, J. (1) This is yet another case where contrary to the vision of the founding fathers, non-adherence to the principles governing the exercise of power by the first appellate Court has driven the parties to the highest Court. The principles entrenched in Order XLI Rule 31 of the Code of Civil Procedure, 1908, which has been the subject matter of catena of decisions of this Court, lay down the manner in which an appeal in a civil suit must be considered by the Appellate court. A further appeal to the High Court lies only on substantial questions of law. Therefore, the law contemplates that a party aggrieved by the decision of the trial Court gets full opportunity to have his grievance investigated by the first Appellate Court which is expected to reappreciate the evidence and consider the matter unless it be that it purports to invoke the power under Order XLI Rule 11.

(2) The plaintiff in this case was wife of the uncle of the first defendant. Both the original plaintiff and the first defendant have passed away. The lis is at present being taken forward by their legal representatives. This suit was one filed by the plaintiff seeking inter alia declaration of two documents which are styled as gift deeds dated 29.07.1990 and 30.07.1990 as void. The Suit came to be filed in the year 1999. The prayer sought in the suit are as follows:

(a) There be a decree for declaration of title of the plaintiff in the property described in Schedule B and that the alleged two gift deeds are void and not executed by the plaintiff and decree for permanent injunction restaining the defendants from creating any claim or breach of peace on the basis of the alleged gift deed. b) if the plaintiff is declared to have title in property in schedule B according to the learned Court or she is dispossessed during the pendency of the suit then a decree for restitution of Vhas possession with the help of court in the said property. c) All costs of the court d) Any other relief the Plaintiff may get in law or equity be decree.

(3) Evidence was led by the parties.

The plaintiff herself was examined as PW 1. She has undoubtedly deposed that the first defendant who was looking after her, after the death of her husband, impressed upon her for the need for a power of attorney and it is this which led her to execute the documents which she discovered later were actually gift deeds in favour of the defendant. (4) The case of the appellants’ predecessor was that the first defendant was, in fact, taking care of plaintiff after the death of the paternal uncle of the first defendant and it is out of love and affection and that the gift deeds were indeed executed. The defendant has purported to examine the scribe and attesting witness among other evidence. The trial Court came to the conclusion on an appreciation of evidence which, no doubt, according to the appellants, was not carried out in the manner contemplated or warranted in the facts of the case that the gift deeds were void and liable to be cancelled.

On the said reasoning, the trial Court proceeded to decree the suit. The trial Court proceeded on the basis that the plaintiff was a pardahnashin lady and the character of the document was not brought to the notice of the plaintiff. (5) The first defendant appealed. In the first Appellate Court, the problem of the parties begins. This is so for the reason that contrary to the command of law which has been reiterated on a number of occasions by this Court, the appellate Court finds as follows: “I have gone through the find of both sides referred by Ld. Lawyers of both sides. Both Mr. A. K. Misra, Ld. Lawyer of the app and Mr. S.Rahaman, Ld.Lawyer of Respondent have elaborately discussed the findings referred by them. After hearing argument of both sides and after giving my anxious thought over the matter I am constrained to hold that the argument of App is not tenable and the argument of Respondent is much acceptable and the decision cited by the Ld.

Advocate for the Respondent is sustainable and rightly accepted by the court below and as such no interference in the judgment and decree of the Court below is required by any means. As a result, this appeal is likely to be dismissed and the judgment and decree passed by the court below is affirmed. Hence it is ordered that the appeal be and the same in dismissed on contest but without cost. Let a x-rox copy of the judgment be sent to Ld. Lower Court at an early date.”