Judgment · High Court · 2012

#4. The appellants-defendants contested the suit by filing written statement s, specifically stating therein that that Dharani Kaiborta sold out 2 Bighas of land, one Bigha each to Sri Jagannath Goswami and Hangsha Chakraborty, the profo rma-defendant Nos.3 & 4, vide Regd. Sale Deed Nos.5311 of 1973 and 5310 of 1973. The appellants also challenged the Gift Deed on the ground that the same is fal se, forged and fraudulent one and as such, no possession could have been passed on to the plaintiff by the said deed and also claimed, in their written statemen ts that they are bonafide purchaser of the suit land in question from the actual owner. It has been further stated that the plaintiffs had never been in poss 5. ession of the suit land, whereas the defendants-appellants were in continuous po ssession of the suit land by setting up their houses and structures thereon, by obtaining separate holdings in their favour. The defendant, namely Ananta Bhagaw ati also made a counter-claim in T.S. No.250 of 1991, praying, inter alia, for a declaration that the Gift Deed No.7950 dated 21.11.1969 be treated as fraudulen t, collusive, and void in law, and it cannot be given effect to. It was further contended by the defenants-appellants that the plaintiff had never been in posse ssion of the land in pursuance of the purported Gift Deed dated 21.11.1969 and a s such, the Defendant No.2, namely Chenimala Kaiborta was the legal owner and pa ttadar of the suit land after the death of her husband Dharani Kaiborta; therefo re, Chenimala Kaiborta had every right and title to sell and transfer the suit l and legally to the appellants. It has been specifically denied by the appellants in their written statements that the plaintiff never ever had any manner of rig ht, title and interest over the suit lands by virtue of the Gift Deed executed i n his favour.

#6. framed for just decision of the suits: On the basis of the pleadings of the parties, the following issues were (cid:28)1. Whether the plaintiff have right, title and interest over the su it land?

#2. Whether the plaintiff have possession over the suit land stated in schedules of TS No.246/91, 247/91, 249/91 and 250/91 and whether the plaintif f have been illegally dispossessed from the suit land in TS 248/91?

#3. Whether the gift deed No.7950 of 1969 dtd. 21.11.69 is valid, le gal, executed by Dharani Kaibarta in favour of the plaintiff? Whether sale deed No.2902/91, 2903/91, 2904/91, 2905/91 and 2906 ‘ /91 executed by Chenimala Kaibarta in favour of all five contesting defendant N o.1 in all five suits are legal, valid in the eye of law?

#5. Whether the counter-claim filed by defendant No.1 in TS 246/91 a nd defendant No.1 in TS 250/91 is maintainable and can be decreed as prayed for? Whether the plaintiff is entitled for decree of confirmation or

#6. possession and permanent injunction, as prayed for in all five suits?

#7. To what reliefs the parties are entitled to? (cid:29)

#7. ng himself as PW1. The plaintiff, in support of his case, examined three witnesses, includi PW.1, plaintiff , Putul Chandra Das was examined twice, once on 18.3.93 as PW.1 in T.S. No.250/91, when it was pending in the Court of Munsiff No.4, Kam rup, at Guwahati, which was later on transferred to the Court of Munsiff No.3, K amrup, Guwahati and thereafter, he was further examined in remaining title suits . The plaintiff also exhibited the Gift Deed as Exhibit-’Ka’ and the signature o f the donor Dharani Kaiborta.

#8. The plaintiff stated in his evidence that his uncle(donor) sold 2 Bighas of land, 1 Bigha each out of his total gifted land to Hangsha Chakrabo rty and Jagannath Goswami, after execution of the Gift Deed. The plaintiff did not raise any objection when the donor sold the said 2 Bighas of land, apparent ly after the Gift Deed was executed. The plaintiff in his evidence categorically stated that his aunt Chenimala Karborta, the Defendant No.2 had never sold the land to the defendants and also had not handed over the possession to the defend ants. The plaintiff, specifically, stated that the land revenue was paid by him vide Exhibit- 7, 8 & 9 in respect of the suit land. Shri Lachit Ch Das, PW2, stated that exhibit 2 is the Gift Deed 9. and that one Matiram Das was the scribe of the deed and Matiram Das had died 20 years ago. Matiram Das was his uncle and was working as an Advocate’s clerk. PW. 2 also identified signatures of the Deed Writer, Moti Ram Das as Exhibits- 2(6), 2(7) & 2(8).

#10. The defendants-appellants examined as many as 7 witnesses in sup port of their claim. The Defendant No.2 Chenimala Kaiborta, being aged and ailin g lady, was examined on commission by learned Advocate Commission. She was also cross-examined on commission. Chenimala Kaiborta (DW.2), in her cross-examinati on stated that she had no children. The plaintiff, who was her nephew, was broug ht to their house by her husband, before her marriage, when she was 3-4 years ol d. At the time of her marriage with Dharani Kaiborta, the plaintiff was about 7- 8 years old. She further stated that her husband looked after the plaintiff like his own son. The plaintiff looked after the land and property of her husband by cultivating the land and which he had continued till date. According to DW.2, t he land and residential house of her husband was looked after by the plaintiff. She also stated that the land in question was given in gift by her husband to th e plaintiff before his death by a Regd. Deed of Gift.

#11. On the basis of the pleadings and evidence, learned Munsiff, dec reed all 5 suits on contest with costs. It was further directed that the plainti ff’s right, title and interest in the suit land be decreed in all 5 suits and po ssession confirmed in respect of the plaintiff’s suit being T.S. No.248/91 by re moving structures standing thereupon. All the defendants were permanently restra ined from disturbing peaceful possession of the plaintiff over the suit land. Ho wever, the counter-claims of the defendants in T.S. Nos.246 of 91 and 250/91 wer e dismissed. As against the decree of the trial Court, an appeal was preferred b efore the appellate Court by the defendants-appellants. Learned lower appellate Court, on conclusion of hearings, dismissed the appeal. As against the appellate decree passed by the learned first appellate Court, the second appeal was admit ted by this Court for hearing on the following substantial questions of law:

#1. Whether without delivery of possession and acceptance of gifted property, the gift is complete by its mere registration?

#2. Whether interpretation of the gift or the gift deed as a valid o ne is correct when the donor himself sold land measuring 2 Bighas to respondent No.2 & 3 after execution of the alleged gift deed in favour of the plaintiff res pondent No.2 and whether the donor was divested of the gifted property?

#3. Whether the findings of the courts below are perverse, contrary to records/evidence in holding the alleged gift deed(Ext.2 - Ext.Ka) as valid? Whether the cancellation of the sale deeds executed in favour of the appellants by the wife of the alleged donor(CW No.1) is correct, legal and

#4. contrary to materials on record?

#12. Gift deed executed by Dharani Kaiborta in favour of the plaintiff is t he basis on which the suits were filed by the plaintiff. Learned counsel for the appellants, referring to the Gift Deed executed by Dharani Kaiborta to the plai ntiff, submitted that during the life time of Dharani Kaiborta, he had sold 2 Bi ghas of land, one bigha each to Hangsha Chakraborty and Jagannath Goswami, which is admitted by the plaintiff . The plaintiff also admitted that there is no cas e between Hangsha Chakraborty and Jagannath Goswami in respect of the land. In t he Sale Deed executed by his uncle Dharani Kaiborta, the plaintiff was one of t he witnesses. Learned counsel for the appellants has further pointed out that th ere is no recital in Exhibit-’Ka’, Gift Deed, as regards the acceptance of the g ift by the plaintiff . According to the learned counsel for the appellants, in t he absence of acceptance of gift in above background, the gift would not be vali d in the eye of law.

#13. Learned counsel for the appellants, referring to the evidence of PW.1, has stated that admittedly during the life time of Dharani Kaiborta, the plaintiff never claimed the suit land (gifted land), which goes to show that dur ing the life time of Dharani Kaiborta, possession of the gifted land was neither delivered to the plaintiff, nor the plaintiff claimed possession thereof at any point during the lifetime of the donor. According to the learned counsel, this vital piece of evidence was overlooked by the learned trial Court as well as by the learned appellate Court in their judgments. Learned counsel for the appellan ts further reemphasized that to be a valid gift, it is sine qua non that there m ust be delivery of possession and acceptance of the gifted property by the donee during the life of the donor as contemplated in terms of Section 122 of the Tra nsfer of Property Act.

#14. According to learned counsel for the appellants, even from the admis sion of the plaintiff himself, it can be safely concluded that there was no vali d gift in favour of the plaintiff and there was no valid divestment of the title , ownership, right and possession of the gifted land. Learned counsel, referring to the evidence of the plaintiff to the effect that (cid:28)I did not raise any object ion/protest when my uncle sold and transferred the land to Hangsha Chakraborty (cid:29), submitted that the aforesaid statement goes to show that the plaintiff was neve r in possession, control and management of the land as owner thereof at any poin t of time during the life time of his uncle. Thus, from the aforesaid testimony of the plaintiff, according to learned counsel for the appellants, it is crystal clear that the relief claimed by the plaintiff in his suit could not have been granted as the gift was not a valid gift in terms of the provisions of Section 1 22 & 123 of the Transfer of Property Act, read with Section 68 of the Evidence A ct.

#15. Learned counsel for the appellants further pointed out that the plaintiff deposed that his uncle had two wives and had a daughter through his fi rst wife and her name is Gauri, who is still alive. This statement in chief made by the plaintiff belied his own evidence adduced in the title suit to the effec t that his uncle had no sons and daughters and legal heirs, for which he was bro ught up as his own son. Learned counsel for the appellants further pointed out t hat no specific attempt was made by the plaintiff to trace the second attesting witness, who was alive at the relevant point in time, in order to prove the gift deed in terms of the provisions of Section 68 of the Evidence Act. Therefore, t he gift deed was not proved as per the requirement of Section 68 of the Evidence Act.

#16. It has been contended by learned counsel for the appellants that the plaintiff admitted that the Gift Deed (Exhibit-2) was not prepared and writ ten in his presence. More so, the attesting witnesses also did not sign the Gift Deed in his presence. Therefore, it has been contended that the identification of the signatures of the attesting witnesses and the donor made by the plaintiff is immaterial since it carries no evidentiary value in the eye of law. The plai ntiff admitted that his aunt Chenimala Koiborta had told him about the sale an d transfer of the suit land. He further deposed that the mutation cases for corr ection of the names in the record of rights filed by the plaintiff against his a unt Chenimala Koiborta in the office of the Sub-Deputy Collector were rejected, and no mutation was granted to the plaintiff in respect of the land in question. The plaintiff also admitted in his cross-examination that he does not know the boundary of the land, which goes to show that he was not in possession, nor was he informed the same at any point in time. Learned counsel for the appellants submitted that the Defendant 17. No.2, Chenimala Kaiborta clearly stated that she did not know anything about the Gift Deed made by her husband in favour of the plaintiff. She also did not know when the Gift Deed was executed and what was the area of the land and who were the witnesses.

#18. Learned counsel for the appellant submitted that from the afores aid admission of Chenimala Kaiborta, it is crystal clear that no Gift Deed was e ver executed by Dharani Kaiborta in his life time. From the evidence of DW.2, it is apparent that she did not have a good relationship with the plaintiff . In h er cross-examination, she deposed that she did not remember, if she had sold the land to Ratul Bora, Lohit Kumar, Ananta Bhagabati and Panchaboti Devi, measurin g 2 Bighas, 2Kathas, 14 Lechas covered by Dag No.116 of KP Patta No.52 of villag e Maj-Jalukbari. Learned counsel for the appellants pointed out that since the p laintiff miserably failed to prove the Gift Deed(Exhibit- 2), in terms of the pr ovisions of Section 68 of the Evidence Act , the learned Court below ought to ha ve held that the plaintiff did not acquire any right, title and interest over th e so-called gifted land, including the suit land, and consequently the judgments of the learned Courts below are liable to be reversed.

#19. The plaintiff’s claim is solely based on the Gift Deed executed by Dharani Koiborta in his lifetime in favour of the plaintiff. The source of le gal right asserted by the plaintiff against the appellants/defendants is the Gif t Deed. Therefore, before discussing other substantial questions of law, the moo t question for decision in this second appeal would be to examine whether the gi ft was validly executed by the donor and the possession thereof was handed over and accepted by the donee?

#20. regarding validity of the Gift Deed, relied on the following decisions: Learned counsel for the appellant, in support of his contention 1) 1997(2) SCC 255, Naramadaben Maganlal Thakker vs. Pranjivanalas Maganlal Thakker. 1997 (2) SCC 635, Baby Ammal vs. Rajan Asari. (1995) 4 Suppl. SCC 534, Sundra Naicka Vadiyar(Dead) by LRS & another vs (2009) 1 SCC 354, K. Lasxmanan vs. Thekkayil Padmini & ors. AIR 1973 Orissa 18, Bancha Bhol & ors. Vs. Saria Bewa & ors. AIR 1999 Orissa 69, Nila Dei and another vs. Bidyadhar Sahani and o 2) 3) . Ramaswami Ayyar(Dead) by his LRS. 4) 5) 6) thers. 7) (2000) 1 SCC 434, Ishwar Dass Jain(Dead) through LRS VS. Sohan Lal(Dead) by LRS. 8) 9)