High Court
Case Details
RSA 18/2013 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY During pendency of the appeal, the respondent No.1/defendant No.1 died a nd the respondent No.2/defendant No.2 being minor, Sri Abani Bharali, maternal u ncle of respondent No.2 has been appointed as guardian vide order dated 21.11.20 12 passed in Misc. Case Nos.837 & 1655 of 2012, who is represented by Mr. K.K. D ey, the learned counsel. Hence, though the memo of appeal was filed in the year 2007, the same was registered only in the year 2013.
Legal Reasoning
Heard Mr. D.M. Thakuria, learned counsel for the appellant and Mr. K.K. Dey, learned counsel for the respondent. This appeal by the plaintiff is directed against the judgment and decree dated 08.11.2006 passed by the learned Civil Judge (Sr. Division), Nalbari, in Title Appeal No.12/2005, whereby and whereunder the appeal preferred by the resp ondents Smt. Anjali Barman and Sri Chandan Barman has been allowed by setting as ide the judgment and decree dated 05.08.2004 passed by the learned Civil Judge ( Jr. Division No.2), Nalbari, in Title Suit No.11/2002. The appellant as plaintiff instituted the suit for declaration of right, title and interest over the land measuring 6 bighas 0 katha 10 lechas, more ful ly described in Schedule to the plaint and for confirmation of possession and al so for issuance of precept to the Circle Officer to correct the revenue records, contending inter alia that during lifetime of Balen Barman, the original owner, there was amicable partition of the land amongst Sabitri, Khagen and Akhil, wif e and sons of Balen Barman, on 01.11.1984 (Ext.-1), by virtue of which the suit land fell in the share of Sabitri, wife of Balen and grandmother of the present plaintiff, who is the son of Khagen. It is also the pleaded case of the plaintif f that Sabitri, out of her share of land, gifted the suit land measuring 6 bigha s 0 katha 10 lechas, more fully described in Schedule to the plaint, in favour o f the plaintiff by executing a gift deed dated 23.02.1996 (Ext.-2) and he has be en put into possession. According to the plaintiff since the defendant, who is t he wife of Akhil, another son of Balen, disturbed in the possession of the plain tiff, he has to institute the suit for declaration of right, title and interest and also for confirmation of possession. The principal defendants, widow and son of Akhil, contested the suit by filing written statement, contending inter alia that the suit land fell in the s hare of Akhil, after partition. The execution of the gift by Sabitri in favour o f the plaintiff has also been denied. The Trial Court, based on the pleadings of the parties, framed the follo wing issues for determination:- Whether there is cause of action for the suit? (i) (ii) Whether the land as mentioned in the family settlement dated 1/11/84 as Barnibari Daktar Khanar Osarar falls under the Dag No.682 and 683 of Patta No.40 3? (iii) o the plaintiff? (iv) Whether the said land was gifted by Late Sabitri Devi before her death t Whether the plaintiff has got right, title, interest and possession over the suit land by virtue of te deed of gift? (v) Whether the plaintiff is entitled to the relief as claimed for? The Trial Court upon appreciation of the evidence on record, both oral a nd documentary, decreed the suit of the plaintiff declaring the right, title and interest by holding that there was partition amongst Sabitri, Khagen and Akhil and the suit land fell in the share of Sabitri, which was gifted to the plaintif f vide Ext.-2 gift deed dated 23.02.1996. Being aggrieved, the defendants preferred the aforesaid appeal, which ha s been allowed by setting aside the judgment and decree passed by the Trial Cour t, by holding that though the plaintiff has claimed title based on the gift deed dated 23.02.1996 (Ext.-2), the plaintiff could not prove the thumb impression o f Sabitri on the said gift deed and also the said gift deed was not proved as re quired under the provisions of the Evidence Act. Hence the present appeal. It has been contended by the learned counsel for the appellant that sinc e the plaintiff could prove the amicable partition amongst Sabitri, Khagen and A khil vide the deed dated 01.11.1984 (Ext.-1) and that the suit land fell in the share of Sabitri, by virtue of such amicable partition, as well as the gift of t he suit land by Sabitri in favour of the plaintiff by executing Ext.-2 sale deed dated 23.02.1996, the First Appellate Court ought not to have disturbed the fin ding recorded by the Trial Court decreeing the suit of the plaintiff. The learne d counsel, therefore, submits that the substantial question of law which exists in the present appeal is whether the Ext.-2 gift deed dated 23.02.1996 could be proved by the plaintiff in accordance with law. Mr. Dey, the learned counsel appearing for the respondent No.2 submits t hat though the plaintiff/ appellant claimed the right, title and interest over t he suit land by virtue of a gift deed dated 23.02.1996 (Ext.-2), he, however, co uld neither prove the thumb impression of the executant, namely, Sabitri nor cou ld prove due execution of the gift deed, which is required to be attested by at least two attesting witnesses, by calling any of the attesting witnesses, as req uired under Section 68 of the Indian Evidence Act. Hence, according to the learn ed counsel, no substantial question of law is involved so as to admit the appeal . I have considered the submissions advanced by the learned counsel for th e parties. The appellant/plaintiff’s case is that part of the land fell in the shar e of Sabitri i.e. the suit land has been gifted to him by Sabitri vide Ext.-2 gi ft deed dated 23.02.1996. Section 123 of the Transfer of Property Act provides t hat the transfer by way of gift must be effected by a registered instrument sign ed by or on behalf of the donor and attested by at least two attesting witnesses . Section 67 of the Evidence Act provides the manner of proving the signature or the thumb impression of a person allegedly executed a document. Section 68 prov ides for the proof of the execution of the document required by law to be attest ed. It provides that due execution of a document, required to be attested by at least two attesting witnesses, has to be proved by examining at least one attest ing witness, provided the attesting witnesses are alive and subject to the proce ss of the Court and capable of giving evidence. In the case in hand, admittedly, neither the thumb impression of the exe cutrix, namely, Sabitri has been proved by the appellant/plaintiff nor did they examine any of the attesting witnesses. There is also no evidence adduced by the plaintiff/appellant that none of the attesting witness is alive and subject to the process of the Court and they are not capable of giving evidence. Proviso to Section 68, however, provides that it shall not be necessary to call an attesting witness in proof of the execution of any document, not bein g a Will, which has been registered in accordance with the provisions of the Ind ian Registration Act, unless its execution by the person by whom it purports to have been executed is specifically denied. In the instant case, execution of the gift deed has been denied by the p erson interested to deny the same, i.e. the defendants in the suit. It is also a n admitted position that Sabitri died before institution of the suit. Hence even if the gift deed is a registered document, since its execution has been denied by the person entitled to deny the same, one attesting witness has to be examine d. The same having not been done, the First Appellate Court has rightly allowed the appeal by setting aside the judgment and decree passed by the Trial Court.
Decision
In view of the above, I do not find involvement of any substantial quest ion of law, so as to admit the appeal. Hence the appeal stands dismissed. However, the parties are directed to bear their cost throughout.