Balai Chandra Parui vs Smt. Durga Bala Dasi and Others

Arun Kumar Mitra, J.—This second appeal has been preferred by the defendant challenging the judgment and decree dated 4th August, 1988 passed by the learned 4th Addl. District Judge, Alipore in T.A. No. 72/1986 reversing the judgment and decree dated 13th May, 1986 passed by the Id. Munsif, 1st Court at Basirhat in T.S. No. 173 of 1984.

The case as has been made out by the plaintiff and/or as it transpire from the plaint is inter alia as follows :-

Prior to the death of the husband of the plaintiff No. 1 in 1975 the defendant was kept in the house of the plaintiffs about 4 to 5 years and he used to work with the plaintiff ever since and because of his works and behaviour the plaintiff No. 1 and her husband had got great love and affection for him. Plaintiff Nos. 2 to 4 are the sons of plaintiff No. 1 and they used to reside elsewhere at the place of their employment. The said sons of the plaintiff No. 1 asked her to go and reside with them but as per husband''s wish she did not leave her father-in-law''s house at Nandanpur. The plaintiff Nos. 2 to 4 used to send money every month to plaintiff No. 1. The plaintiff Nos. 2 to 4 being the eldest and youngest son they used to visit the plaintiff No. 1 regularly. The defendant requested the plaintiff No. 1 to give him some land for constructing his house and plaintiff No. 1 agreed to give him some land for constructing his house and plaintiff No. 1 agreed to give him about 2 to 21/2 cottahs of land for this purpose. Plaintiff No. 1 has been suffering from various ailments for quite sometime and also consume "Aphin". Defendant on the pretext of taking her to a Doctor took her to Hasnabad after administering her with a ''large quantity of Aphin water'' and then to the Sub-Registrar''s office and fraudulently got the deed of gift executed by her in collusion with the deed writer and the attesting witnesses. The said deed has not been read over or explained to her, nor was the same written under her instructions. The plaintiff No. 1 was under the impression that the suit deed was executed concerning 2� cottahs of land. When plaintiff Nos. 2 and 4 came after ''Bijaya Dasami'', plaintiff No. 1 told them about the suit deed, whereupon they obtained certified copy of the same. Plaintiff No. 2. thereafter, took plaintiff No. 1 with himself to Barasat and subsequently plaintiff No. 1 executed a deed of cancellation of the deed of gift of the suit land and got a deed of gift executed in favour of her sons that is plaintiff Nos. 2 and 4. Defendant when tried to harvest crops standing on the suit land on the basis of the fraudulent and void deed and the present suit was filed by the plaintiffs claiming that they are in possession of the suit land.

The defendant contested the suit by filing Written Statement denying all the material allegations of the plaintiffs and contending inter alia that the suit is not maintainable in its present form. that the plaintiffs have no cause of action, that the suit is bad for defect of parties, that the plaintiff No. 1 and her husband had reared up the defendant in their house since his childhood, that the defendant used to look after them in all respects and was looked upon by them as his son and loved by them. The defendant also alleged that the plaintiff No. 1 out of love and affection and voluntarily with full knowledge executed the deed of gift in respect of the suit land in favour of the defendant and the defendant further alleged that he is possessing the suit land since the execution of the suit deed. The said deed of gift is neither fraudulent nor void as alleged by the plaintiff and the defendant along with his wife are residing in the plaintiffs house and he is in possession of the suit land as stated above. The defendant further prayed that the suit should be dismissed with costs.

On the above pleading the following issues were framed :

Have the plaintiffs any cause of action for this suit ?

Was the deed for gift numbered 8672, dated 27-9-1984 executed under coercion and is fraudulent and void ?

Have the plaintiffs got title and possession in and over the suit land ?

Are the plaintiffs entitled to the decree as prayed for ?

To what reliefs, if any, are the plaintiffs entitled ?

On contest the learned trial Judge dismissed the suit. The plaintiffs preferred appeal and the learned appellate Court below allowed the appeal and set aside the judgment and decree passed by the learned trial Judge. The suit was decreed by the appellate Court below in part and the deed of gift dated 27-9-1984 in favour of defendant was declared void and it was further declared that the plaintiff Nos. 2 to 4 have right, title and interest and possession in the suit property and the plaintiff No. 1 have no right, title or interest or possession over the suit property. The Id. Appellate Court below also passed an order restraining the defendant permanently from interfering with the possession of the plaintiff Nos. 2 to 4 in the suit property.

Hence this second appeal has been preferred by the defendant being the appellant.

On consideration of the materials on record, the evidence and the judgments delivered by the Courts below the following substantial questions of law are framed for the purpose of hearing this appeal :-

Whether the learned appellate Court below applied correct principle of law and came to a decision, on the basis of the evidence on record that the appellant has not acquired any title to the suit property on the basis of the deed of gift executed on 27-9-1984 and correctly came to the decision that the said deed of gift is not the result of free and voluntary act of the donor.

Whether the appellate Court below misdirected himself in interpreting the law in the perspective of the admitted fact that there is no stipulation in the original deed of gift executed in favour of the defendant, appellant empowering the donor to cancel or revoke the said deed of gift.

Whether the suit is hit by the provisions of Order 2, Rule 2 of the CPC inasmuch as the plaintiffs/respondents have not claimed any relief in the suit in respect of the deed of cancellation executed on 24-10-1994 and whether in such circumstances the appellate Court below came to right finding to the effect that the respondent Nos. 2 to 4 have right, title, interest and possession in the suit property.

Whether the judgment and decree passed by the appellate Court below was on proper scrutiny of the judgment of the trial Court as envisaged in the Code of Civil Procedure.

Whether the judgment and decree passed by the appellate Court below is based on surmise and conjecture and can be termed as perverse.

The learned counsel for the appellant when making his submissions argued all the substantial question of law in a composite manner. The learned counsel for the appellant submitted that evidence on record go to show that the appellant/defendant started residing with the plaintiff No. 1 as her attendant since 1970 and after 14 years of sincere service rendered by the defendant the plaintiff No. 1 being satisfied, executed the deed of gift in favour of Balal Chandra Parul the defendant/appellant. This deed of gift according to the learned counsel for the appellant was executed by the donor and accepted by the defendant/ appellant immediately thereafter. The learned counsel further submitted that after said deed of gift was executed in favour of the defendant, the plaintiff/respondent No. I cannot revoke the said deed of gift inasmuch as the original deed of gift executed in favour of the defendant became complete on this execution and registration and also by acceptance of the defendant. The learned counsel for the appellant in this regard relied on Section 8 of the Transfer of Property Act, 1882. Relying on this provision, the learned counsel for the appellant submitted that the transfer becomes complete in such a case forthwith unless different intention is impressed or implied.

The learned counsel for the appellant also relied on Section 42 of the said Act and submitted that since the donor did not reserve the power to revoke the transfer originally made in favour of the defendant, plaintiff/respondent No. 1 cannot revoke or cancel the�aid deed. In this regard the learned counsel for the appellant also relied on the provisions of Sections 122 and 126 of the Transfer of Property Act.

The learned counsel for the appellant referring to the provisions of Section 17 of the Registration Act, 1908 submitted that where the deed of gift is executed and registered it cannot be normally revoked or cancelled,

The learned counsel for the appellant referred to the averments made in paragraph 5 of the plaint and submitted that there it has been stated that the plaintiff No. 1 is an illiterate and pardanashin lady of ill education. But P.W. 1 in her evidence stated that ''my sons used to write letters and I used to reply to them''. P.W. 2 Rabindra Nath Chakraborty in his cross-examination stated "there were many exchange of letters". The learned counsel for the appellant further submitted that P.W. 1 in cross-examination has stated "I have gone to Saheb Doctor". The learned counsel for the appellant submitted that from the evidence on record that is from the exhibits it will appear that the money orders send to the P.W. 1 were receipted by the lady, that is P.W. 1, by putting her signature over there. In the deed of gift also, the signature of the lady appeared. The learned counsel for the appellant submitted that in view of the evidence on record and in view of the admitted evidence on exhibit it will appear that the learned appellate Court below went against the evidence on record and as such came to a perverse finding.

The learned counsel for the appellant relied on a decision reported in Ratanlal Bansilal and others Vs. Kishorilal Goenka and others, . This is a Full Bench judgment of this High Court. The learned counsel for the appellant submitted that in this judgment the Hon''ble Full Bench clarified the scope of Section 100 of the CPC before amendment and after amendment of 1976. The learned counsel for the appellant submitted that mixed questions of law and fact can be a substantial question of law and the second appellate Court can interfere in such a case. The learned counsel laid stress on the observations of the Full Bench judgment made in paragraphs 8. 20, 26, 27, 93, 96. 102 and 103 which are quoted here-inbelow:-

"8. If we go by the decision in Boobna''s case (1988 (1) Cal LJ 278) (supra), the appeal is not maintainable. The earlier Division Bench in Boobna''s case (supra), held that the expression "substantial question of law" as now appearing in the amended Section 100 of Code should be construed in the light of the tests laid down by the larger Bench of the Supreme Court consisting of five Judges in (2) Sir Chunilal V. Mehta and Sons, Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd., .

Mixed question of law and fact has been held to a question of law. Facts may be settled, so is the law but its application to the fact may be troublesome and may call for a decision by the High Court.

The next amendment is with regard to Section 103 of the Code. The unamended and the amended provisions are extracted below :-

Before Amendment, 1976.

Power of High Court to determine issues of fact - in any second appeal the High Court may, if the evidence on the record is sufficient, determine any issue of fact necessary for the disposal of the appeal which has not been determined by the lower Appellate Court or which has been wrongly determined by such Court by reason of illegality, omission, error or defect such as in referred to sub-section (1) of Section 100.

After Amendment, 1976.

Power of High Court to determine issue of fact - in any second appeal, the High Court may. if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal -

(a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or

(b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100.

The amendment was made simultaneously with that of Section 100 of the Code. It is canvassed that for the purpose of shutting out the grounds of perversity of factual inference or mixed question of law and fact. a few words in the unamended Section 103 which referred to irregularity, error etc. have been omitted. However, the Section despite the charge only makes it clear that it applies even where the failure to decide a question occurred not only in the lower Appellate Court but also in the Trial Court.

There is a catena of decisions where the Supreme Court has accepted that the substantial question of law need not necessarily be of public importance. We have earlier referred to Budhwanti and Another Vs. Gulab Chand Prasad, where the Supreme Court held that perversity of the finding of fact or the finding vitiated by application of wrong tests or on the basis of conjectures and assumptions has to be set aside by the Supreme Court in a second appeal in order to render justice. In Boobna this decision was not considered to be expository of the effect of the amendment as the Supreme Court in this decision did not refer to that aspect at all. But it is to be noted that there the appellant before the Supreme Court pleaded that the High Court had erred in interfering with the finding of fact of the District Court and this wrongly exercised its judicial discretion which Section 100 confers on it. It is true that the Supreme Court did not in terms refer to the amended provision of Section 100. But when it upheld the admission of the second appeal and reversal of the order of the District Court it cannot be presumed that it was blind to the amendment. Moreso. when against the specific plea against the competence of the High Court, the Supreme Court observed (at p. 1487 of AIR) -

"Since the appellate Judge had rendered his finding on the question of bona fide requirement of the shop by the landlord on baseless assumptions and wrong principles of law. the High Court was justified in setting aside the finding of the appellate Judge even though it was factual in character. It is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumption. then a High Court will be well within its rights in setting aside in a second appeal a patently erroneous finding in order to render justice to the party affected by the erroneous finding."

Obviously, the Supreme Court in the case was not unmindful of what is a substantial question of law. and impliedly held that what substantially affected the rights of the parties to the dispute would assume a substantial character and further that the legality of finding of fact is a question of law. Therefore, in the case the erroneous finding affecting the party would be a substantial question of law.

The learned counsel for the respondents submits that though Sir Chunilal V. Mehta and Sons, Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd., has been referred to. the observations in the concluding part of paragraph 9 of Panjak Bhargava and another Vs. Mohinder Nath and another, are contrary to the law declared by the larger Bench in Chunilal''s case and accordingly cannot prevail. In paragraph 9, the Supreme Court observed :-

The proposition that reciprocal promises are sufficient to bring about the formation of a contract is well settled, and indeed elementary. But, the High Court does not appear to have been invited to examine the question whether this proposition in its application to the case assumed a substantial character as between the parties. The appeals did involve a question of law. That question directly and substantially affected the rights of the parties. It is possible to assume that the High Court considered the question as a substantial one between the parties. We did not think that it would be appropriate to fault the judgment on this ground though the point might well have been an eminently arguable one if it had been raised before the High Court. In any event in the view we take of the second contention this point loses its materiality."

Another decision of a two-Judge Bench of the Supreme Court in Sri Chand Gupta Vs. Gulzar Singh and another, : has expressed similar view. It held that the finding of fact is vitiated in law where it is primarily based on Inadmissible evidence. The Court observes :

"Having found the finding vitiated, it is open to the High Court to re-examine and re-appreciate the evidence on record... we do not find any error in such re-appraisal".

There is one more decision of the Supreme Court by a Bench of two-Judges viz. (34) Dilbagrai Punjabi Vs. Sharad Chandra, . There the Supreme Court held that where in a suit the lower Courts had without considering any part of the evidence, oral or documentary, come to a finding of fact the High Court would Be right in reversing the finding. The Court is under a duty to examine the entire relevant evidence on records and if it refuses to consider important evidence having direct bearing with the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding."

The learned counsel for the appellant submitted that the suit is hit by the provision of Order 2, Rule 2 of the CPC inasmuch as the whole claim was not made out in the plaint. The learned counsel for the appellant also submitted that the 1st deed of gift which was executed in favour of the defendant (appellant) herein was not made by way of coercion inasmuch as absence of good faith even does not always tantamount to coercion. The learned counsel for the appellant submitted that the second appellate Court can interfere with a judgment and decree passed by the appellate Court as a matter of law with the appraisal of the evidence by the trial Court suffers from material irregularities or is based on inadmissible evidence or on conjecture and surmises. Even if there is a finding of fact, second appellate Court can interfere. The learned counsel for the appellant relied on a judgment reported in Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., The learned counsel for the appellant laid stress on the observations made by the Hon''ble Apex Court in paragraphs 15 and 16 of this Judgment. The learned counsel for the appellant further submitted that as observed by the Hon''ble Apex Court in this judgment that the second appellate Court can interfere also if there is perversity in the judgment and decree under challenge. The learned counsel for the appellant submitted that the judgment and decree passed by the appellate Court below is totally perverse inasmuch as the learned appellate Court below recorded his finding contrary to the evidence on record. The said paragraphs 15 and 16 of the judgment of the Apex Court in the matter of Santosh Hazari (AIR 2001 SC 965) (supra) are quoted hereinbelow :-

"15. A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his pica of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not re-state the effect of the evidence or reiterate the reasons given by the trial Court, expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, . We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the Judgment under appeal, should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more-so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact, (See Madhusudan Das Vs. Smt. Narayanibai (Deceased) by Lrs. and Others, 1 . The rule is -- and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge''s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate Court should not interfere with the findings of the trial Judge on a question of fact. (See Sarju Pershad Vs. Raja Jwaleshwari Pratap Narain Singh and Others, . Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts, of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code, The first appellate Court continues, as before, to be, a final Court of facts; pure findings of fact remain immune from challenge before the High Court, in second appeal. Now the first appellate Court is also a final Court of law in the sense that Us, decision on a question of law even if erroneous may not be vulnerable before'' the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one.

Reverting to the facts of the case at, hand, prima facie we find that the first appellate Court did not discharge the duty cast on it as a Court of first appeal. The High Court having noticed failure on the part of the appellant in not discharging the statutory obligation cast on him by sub-section (3) of section 100 of the Code, on account of the substantial question of law involved in the appeal having not been stated, much less precisely, in the memorandum of second appeal, ordinarily an opportunity to frame such question should have been afforded to the appellant unless the deficiency was brought to the notice of the appellant previously by the High Court Registry or the Court and yet the appellant had persisted in his default. That was not done. In our opinion, the following substantial question of law does arise as involved in the case and worth being heard by the High Court :

Whether on the pleadings and the material brought on record by the defendant, the first appellate Court was right in holding that the case of adverse possession was made out by the defendant and the suit filed by the plaintiff was liable to be dismissed absorbed by time under Article 65 of the Limitation Act, 1963, more so when such finding was arrived at in reversal of the findings of the trial Court?"

13A. The learned counsel for the appellant also relied on another decision reported in Kulwant Kaur and Others Vs. Gurdial Singh Mann (dead) by Lrs. and Others etc., Relying on this judgment, the learned counsel for the appellant submitted that in this judgment the Hon''ble Apex Court has observed that the proposition that appreciation of evidence is totally prohibited in second appeal cannot be accepted as being too rigid. The learned counsel for the appellant also submitted that the question as to whether a lower Court finding is perverse or not is a substantial question of law and according to the learned Counsel for the appellant the finding of the appellate Court below that the plaintiff No. 1 is absolutely illiterate is a perverse finding inasmuch as this finding totally goes against the evidence on record. The learned counsel for the appellant laid stress on paragraph 34 of the Judgment of the Hon''ble Apex Court delivered in the matter of Kulwant Kaur and Others Vs. Gurdial Singh Mann (dead) by Lrs. and Others etc., for the sake of discussion the said paragraph 34 (of SCC) : (para 32 of AIR) is quoted hereinbelow :-

"34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the CPC (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its Jurisdiction to deal with the issue. This, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. Needless to say. however, that perversity itself is a substantial question worth adjudication - what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below :

"103. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal.-

(a) which has not been determined by the lower appellate Court or by both the Court of first instance and the lower appellate Court, or

(b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100."

The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact. cannot but be termed to be a question of law. We reiterate, however, that there must be a definite finding to that effect in the Judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."

The learned counsel for the appellant/defendant further submitted that the submission of the respondents to the extent that deed of gift executed in favour of the appellant/defendant not made in good faith or not voluntarily is no ground for cancellation of the deed. The learned counsel for the appellant referred to Section 34(3) of the Indian Registration Act. The learned counsel for the appellant further submitted that though the prescriptions were marked exhibit but the Doctor who signed the prescription was not examined. The learned counsel for appellant referred to the observation of the appellate Court below in this regard which according to the learned counsel are totally perverse being based on surmise and conjecture. The learned counsel for the appellant also referred to the provisions of Section 42 of the Transfer of Property Act as well as Section 126 of the said Act and submitted that personally executing the deed of gift and after registration and also after acceptance by the donee, the donor cannot cancel the said deed of gift.

The learned counsel for the appellant then submitted that in any event if there is concurrent finding of facts also on an issue or on a particular question then also the second appellate Court cannot mechanically decline to interfere. The learned counsel for the appellant in this regard relied on the observations made in paragraph 8 of the judgment of the Hon''ble Apex Court reported in Shri Hafazat Hussain Vs. Abdul Majeed and Others, and the observation made in the said paragraph 8 of the judgment is quoted hereinbelow for the sake of convenience and discussion in the matter :-

."8. We have carefully considered the submissions of the learned counsel appearing on either side. No doubt, it has been repeatedly pointed out by this Court that concurrent findings recorded by the trial Judge as well as the 1st Appellate Judge on proper appreciation of the materials on record should not be disturbed by the High Court, while exercising second appellate jurisdiction, but at the same time, it is not an absolute rule to be applied universally and invariably since the exceptions to the same also were often indicated with equal importance by this Court, and instances are innumerable where dispute (sic) such need and necessity warranting such interference, if the second appellate Court mechanically declined to interfere, the matter has been even relegated by this Court to the second appellate Court to properly deal with the claims of parties in the second appeal objectively keeping in view the parameters of consideration for interference u/s 100 of the Civil Procedure Code. Therefore. it becomes necessary to see whether the learned single Judge in the High Court has transgressed the permissible limits."

The learned counsel then relied on another decision of the Hon''ble Apex Court reported in Ram Kristo Mandal and Another Vs. Dhankisto Mandal, Relying on this judgment of the Hon''ble Apex Court the learned counsel for the appellant submitted that in view of the provision of Section 100 and Order 42. Rule 11 of the CPC now plea can be raised in a second appeal if it is a question of law. The learned counsel for the appellant then submitted that though the prescriptions were exhibited but the Doctor was not examined. The effect is that evidence becomes hearsay evidence. In this context the learned counsel for the appellant relied on a decision reported in Mohammed Yusuf and Another Vs. D. and Another, ). In this judgment the Hon''ble Division Bench of Bombay High Court observed :

"the reasons on which the decision of Bhagwati, J. is based is not far to seek. The evidence of the contents contained in the document is hearsay evidence unless the writer thereof is examined before the Court. We, therefore, hold that the attempt to prove the contents of the document by proving the signature or the handwriting of the author thereto used to set at naught the well recognised rule that hearsay evidence cannot be .admitted. This question has been discussed by Halsbury at paragraph 533 at page 294 (Halsbury''s Laws of England, 3rd Edition, Vol. 15) under the heading hearsay says Halsbury:

"....................statement in documents may also be hearsay, So, if A had taken Counsel''s opinion before acting, the contents of the opinion would be admissible'' for the same purpose but not to prove the truth of any statement of fact herein."

In paragraph (534) Halsbury has, discussed the reasons for rejection of hearsay evidence and says :

" The reasons advanced for the rejection of hearsay are numerous, among them being the irresponsibility of the original declarant, the depreciation of truth in the process of the repetition, the opportunities for fraud which its admission would offer and the waste of time. involved in listening to ideal rumour,"

Relying on this judgment the learned counsel for the appellant submitted that the prescriptions were submitted or were exhibited but the Doctor that is the author of the prescription was not examined/and as a result the evidence becomes hearsay evidence and cannot be believable.

The learned counsel then submitted that in case of two documents that is when on cancellation of the first document a second document is made unless there is stipulation in the first document to that extent,'' the second deed does not appear to be genuine. The learned counsel referred to a decision of the Hon''ble Apex Court reported in S.V.R. Mudaliar (Dead) by Lrs. and Others Vs. Rajabu F. Buhari (Mrs) (Dead) by Lrs. and Others,

The learned counsel for the appellant then relied on a decision reported in Rajappa Hanamantha Ranoji Vs. Sri Mahadev Channabasappa and Others,

The learned counsel for the appellant relying on the decision submitted that if there is lack of evidence, perversity, or non-examination of key witnesses, the. High Court can interfere. The learned counsel for the appellant also submitted that in this judgment the Hon''ble.Apex Court observed that if the findings of the first appellate Court are not based on a proper appreciation of the evidence, the High Court then also can interfere in a second appeal. The learned counsel, then relied on another decision of the Hon''ble Apex Court reported in Sashi Kanta Ruia Vs. M/s. Indo Minerals and Others, The learned counsel for the appellant submitted that in this judgment the Hon''ble Apex Court has held that the High Court is duty-bound to consider and base its conclusion on the relief, pleading and the findings thereon of the first appellate Court, reached after appreciation of the evidence. The learned counsel for the appellant thereafter submitted that in another Judgment reported in State of Rajasthan Vs. Harphool Singh (Dead) Through His L.Rs., The learned counsel for the appellant submitted that in this Judgment the Hon''ble Apex Court has observed that u/s 96 and Section 100 of the CPC the High Court can Interfere with the findings of the lower appellate Court if the said findings are based on surmise and conjecture or the findings are perverse and not based on legally accepted evidence which are patently contrary to law decided by Supreme Court. In this judgment the Hon''ble Apex Court also observed that even if there is concurrent findings by both the Courts below then also the High Court can interfere, where there are glaring inconsistencies and contradiction in the evidence and issues raised are serious. The learned counsel for the appellant then submitted that from the above decision to the Hon''ble Apex Court it is quite dear that the High Court can interfere in some certain matters if the judgment delivered by the Courts below suffer perversity or the Judgments are based on surmise and conjecture. The learned counsel for the appellant submitted that since the entire claim has not been included in the suit the same is barred under Order 2, Rule 2 of the Code of Civil Procedure.

The learned counsel for the appellant then submitted that in view of the provisions of Section 126 of the Transfer of Property Act, the gift made in favour of the defendant cannot be revoked. The learned counsel for the appellant submitted that without looking into the statutory provision or on making a wrong test of law the appellate Court below come to the conclusion and here also it is permissible for the second appellate Court to interfere into the matter. The learned counsel for the appellant in this context relied on a decision of the Hon''ble Apex Court reported in Budhwanti and Another Vs. Gulab Chand Prasad, The learned counsel for the appellant laid stress on paragraphs 11 and 12 of this judgment of the Hon''ble Apex Court which paragraph for the sake of discussion, are quoted here lnbelow :-

"11. Coming now to the ground of eviction based on the bona fide requirement of the respondent, Mr. Javali argued that the bona fides of the claim is not established either by the pleadings or the evidence and hence the trial Court and the High Court were in error in sustaining the said ground of eviction. It was pointed out by the counsel that in the plaint there is only a casual statement about the requirement of the shop by the landlord and in the evidence it was not made clear whether the shop was required for expansion of the existing business or for starting a new business venture for the benefit of the younger members of the Joint family. The trial Court has discussed the case of bona fide requirement in para 14 of its judgment and has held that the landlord is bona fide in need of shop to engage two members of the joint family in business. The Appellate Judge has reversed the finding of the trial Court on four grounds. viz., that the tenants were refugees from West Pakistan and had no shop of their own in the town of Gaya, that from the point of comparative hardship it would be the tenants who would suffer more than the landlord by an adverse decision, that the shop occupied by the appellants is only a small portion in a massive building in the occupation of the landlord and that the landlord''s requirement of the building was more attributable to a desire to recover possession rather than on account of any genuine need for it. The High Court has pointed out that the Appellate Judge had completely misdirected himself in his approach to the question because of erroneous assumptions of facts as well as law. Admittedly, the tenancy had commenced in 1932 which was long prior to the partition in 1947 and hence there can be no question of the tenant being a refugee from West Pakistan. Likewise, the application of the test of comparative hardship between the landlord and the tenant was an extraneous test because no such test has been prescribed by the Act for going into the reckoning. Then again it was noticed that without any evidence or materials the Appellate Judge has assumed that the main building in the occupation of the joint family is a massive building and that the leased portion constitutes only a negligible area. Likewise the Appellate Judge had no materials to hold that the landlord''s requirement of the building was only born out of desire and not on account of any genuine need. Since the Appellate Judge had rendered his findings on the question of bona fide requirement of the shop by the landlord on baseless assumptions and wrong principles of law, the High Court was justified in setting aside the finding of the Appellate Judge even though it was factual in character. It is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumptions then a High Court will be well within its rights in setting aside in a second appeal a patently erroneous finding in order to render justice to the party affected by the erroneous finding. Mr. Javali tried to canvass that the Appellate Judge had rendered his finding mainly with reference to the pleadings and the evidence and his incidental references to oilier factors and circumstances were only to reinforce his conclusion and as such his finding does not suffer from any infirmity or error. We are not persuaded by this argument because it cannot be predicated as to how far the Appellate Judge''s conclusion was influenced by the mistaken test applied by him to determine the issue.

We are. therefore, of the view that the finding of the trial Court which has been confirmed by the High Court regarding the respondent being bona fide in need of the shop for the business needs of the joint family does not call for any interference by this Court in this appeal under Article 136 of the Constitution."

The learned counsel for the appellant conclusively submitted that the appellate Court below applied wrong test of law, did not consider the relevant provision of the Transfer of Property Act as well as Indian Registration Act and came to a wrong finding that the deed of gift executed in favour of the defendant was fraudulent, and also come to a wrong finding that the cancellation of the earlier deed of gift is invalid and the execution of subsequent deed of gift is valid. The learned counsel for the appellant further submitted that the deed of gift executed in favour of the defendant was voluntary and the deed of gift was accepted by defendant, attesting witnesses are there and the defendant was delivered possession and now the same cannot be cancelled and any fresh deed of gift cannot be executed. The learned counsel for the appellant also submitted that the judgment of appellate Court below suffers from perversity inasmuch as the appellate Court below arrived at a finding contrary to the evidence on record and wrongly came to the conclusion that the plaintiff No. 1 is an illiterate and pardanashin lady. In such circumstances the learned counsel for the appellant submits that the judgment and decree passed by the appellate Court below reversing the judgment, and decree passed by the learned trial Judge should be set aside.

The learned counsel for the respondent submitted that the donee posed himself to be the adopted son of the plaintiff No. 1 which he is not and this goes to show that the defendant committed fraud and got the deed of gift executed by the plaintiff No. 1. As per the provision of Section 11 of Hindu Adoptions and Maintenance Act the donee cannot be adopted son of the plaintiff, the donor and the donee belong to different casts. The learned counsel for the respondent further submitted that there is no perversity in the judgment and decree passed by the learned appellate Court below. The learned counsel for the respondent further submitted that the deed writer''s evidence go to show that the recital of the deed of gift was read over by the deed writer but not explained. The learned counsel for the respondent also submitted that the deed was to be explained to the plaintiff No. 1 since she was an illiterate and pardanashin lady and in this regard the learned counsel for the respondent relied on a decision reported in Sm. Sonia Parshini Vs. Sheikh Moula Baksha, The learned counsel for the respondent laid stress on paragraphs 8 and 9 of the said judgment of the Hon''ble Division Bench of this High Court and submitted that mere execution is not enough. The learned counsel for the respondent then referred to Mullah''s Law of Contract and submitted that the execution of a deed by pardanashin woman is to be established and the onus is on the defendant in this case to prove that the execution was valid execution. The learned counsel for the respondent submitted that the burden of proof has been foisted upon the persons who seek to sustain the transaction with a pardanashin lady. The learned counsel for the respondent relied on paragraph 6 of the Hon''ble Apex Court judgment reported in Mst. Kharbuja Kuer Vs. Jangbahadur Rai, The said paragraph 6 of this Judgment is quoted hereinbelow :-

"6. The next question is what is the scope and extent of the protection. In Geresh Chunder Lahoree v. Mst. Bhuggobutty Debia (1869) 13 Moo Ind App 419 ) the Privy Council held that as regards documents taken from pardanashin women the Court has to ascertain that the party executing them has been a free agent and duly informed of what she was about. The reason for the rule is that the ordinary presumption that a person understands the document to which he has affixed his name does not apply in the case of a pardanashin woman. In Kali Baksh v. Ram Gopal (1913) 41 Ind App 23 (PC), the Privy Council defined the scope of the burden of a person who seeks to sustain a document to which a pardanashfn lady was a party in the following words :

"In the first place, the lady was a pardanashin lady, and the law throws round her a special cloak of protection. It demands that the burden of proof shall in such a case rest, not with those who attack, but with those who found upon the deed, and the proof must go so far as to show affirmatively and conclusively that the deed was not only executed by, but was explained to, and was really understood by the grantor. In such case it must also, of course, be established that the deed was not signed under duress, but arose from the free and independent will of the grantor."

The view so broadly expressed, though affirmed in essence in subsequent decisions, was modified, to some extent, in regard to the nature of the mode of discharging the said burden. In 52 Ind App 342 at p. 352 ;

89 Ind. Cas. 649 (Privy Council) it was stated :

" The mere declaration by the settlor, subsequently made, that she had not understood what she was doing, obviously is not in itself conclusive. It must be a question whether, having regard to the proved personality of the settlor, the nature of the settlement, the circumstances under which it was executed, and the whole history of the parties. It is reasonably established that the deed executed was the free and intelligent act of the settlor or not. If the answer is in the affirmative, those relying on the deed have discharged the onus which rests upon them."

While affirming the principle that the burden is upon the person who seeks to sustain a document executed by a pardanashin lady that she executed it with a true understanding mind. it has been held that the proof of the fact that it has been explained to her is not the only mode of discharging the said burden, but the fact whether she voluntarily executed the document or not could be ascertained from other evidence and circumstances in the case. The same view was again reiterated by the Judicial Committee, through Sir George Rankin, in AIR 1940 134 (Privy Council) . Further citation is unnecessary. The legal position has been very well settled. Shortly it may be stated thus : The-burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardahnashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. It should be established that it was not only her physical act but also her mental act. The burden can be discharged not only by proving that the document was explained to her and that she understood it, but also by other evidence, direct and circumstantial."

" For the sake of discussional convenience the learned counsel for the respondent referred to the provisions of Section 123 of the Transfer of Property Act. The learned Counsel for the respondent submitted that mere existence of document does not dispense with necessity of proving that it is duly attested.

The learned counsel for the respondent also relied on the judgment of Apex Court reported in M. L. Abdul Jabbar Sahib Vs. M. V. Venkata Sastri and Sons and Others, . The learned counsel for the respondent relying on this judgment submitted that Section 3 of the Transfer of Property Act define attestation and if a person certifies that he is a scribe and/or identifier or a registry officer, he is not a attesting witness. The learned counsel for respondent relied on the observations made in paragraph 8 of this judgment. The learned counsel for the respondent referred to the provision of Section 123 of the Transfer of Property Act and submitted that mere existence of document does not dispense with necessity of proving that it is duly attested and there is no such evidence on record that the deed of gift executed in favour of defendant was duly attested. The learned counsel for the respondent then referred to another judgment reported in Smt. Mallo Vs. Smt. Bakhtawari and Others, The learned counsel for the respondent also relied on a decision reported in Ajmer Singh and Others Vs. Atma Singh, . Relying on this judgment the learned counsel for the respondent submitted that the defendant is to prove that execution was done properly inasmuch as the executor is an old lady and the learned counsel for the respondent also submitted that execution is not only a physical act but also a mental act.

In answer and in reply to the submission of Mr. Maitra the learned counsel for the respondents submitted that Order 2, Rule 2 of the CPC does not stand as bar. The learned counsel for the respondents also submitted that the finding of the appellate Court below cannot be termed as perverse and all the questions raised by Mr. Maitra the learned counsel for the respondents are all questions of fact which cannot be decided in a second appeal. The learned counsel for the respondents referred to Section 111 of the Evidence Act and submitted that proof of good faith in transaction where one party is in relation of active confidence then the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. The learned counsel for the respondents then referred to a judgment reported in 89 Ind. Cas. 649 (Privy Council) Relying on this judgment the learned counsel for the respondent submitted that onus was on the defendant who could not discharge the onus and the appellate Court below did not commit any mistake. The learned counsel for the respondents then relied on a Judgment reported in 1951 CLJ page 463. The learned counsel for the respondents submitted that the defendant is to satisfy the Court that the document was executed in good faith inasmuch as the same was not explained and lady did not understand the purport of the document. The learned counsel for the respondents submitted that Section 34(3) of the Registration Act does not come to any help of the defendant/applicant. The learned counsel for the respondents sought to explain ratio'' of the judgment reported in Ram Kristo Mandal and Another Vs. Dhankisto Mandal, Lastly, the learned Counsel for the respondents submitted that the deed gift was Hot acted upon and the possession remained with the plaintiffs and as such the instant appeal should be dismissed with costs.

The learned counsel for the appellant Mr. Maitra in reply, repulsed the argument advanced by the learned counsel for the respondents and submitted that no prayer is there as observed by the plaintiff that the adoption is bad, no issue has been framed in this regard and no proof and no finding regarding adoption. The learned counsel for the appellant Mr.- Maitra referred to the provision of Hindu Adoptions and Maintenance Act. Mr. Maitra relied on Section 5, Section 6(IV), Section 9(1), Section 11(1) and (VI) of the Hindu Adoptions and Maintenance Act. The learned counsel for the appellant also relied on the judgment of the Hon''ble Apex Court reported in Kartar Singh (Minor) through Guardian Bachan Singh Vs. Surjan Singh (Dead) and Others, The learned counsel for the appellant Mr. Maitra relied on a judgment of the Hon''ble Apex Court reported in Rahasa Pandiani (dead) by Lrs. and Others Vs. Gokulananda Panda and Others, . The learned counsel for the appellant laid stress on paragraphs 4 and 5 of this Judgment. The said paragraphs 4 and 5 are quoted hereinbelow :-

"4. Before we advert to the relevant circumstances we consider it appropriate to advert to note of caution sounded by this Court as early as in 1958 in Kishori Lal Vs. Mst. Chaltibai, . We can do no better than to quote the relevant passage from the judgment of Kapur, J. (at p. 508 of AIR) :-

"As an adoption results in .changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicion of fraud and so consistent: and (probable as to leave no, occasion for doubting its truth. Failure to produce, account, in circumstances such as have been proved in the present case, would be a very suspicious circumstance. The importance of accounts was emphasised by the Privy Council in Sootrugun v. Sabitra (1834 (3) Knapp 287; in Qiwakar Rao v. Chandan Lal Rao (AIR 1916 PC. 81; Kishorilal v. Chunilal, (1908) 36 Ind App 9; in Musammat Lal Kunwar v. Chiranji Lal, (1909) 37 Ind App 1) and in AIR 1931 84 (Privy Council)

When the plaintiff relies on oral evidence in support of the claim that he was adopted by the'', adoptive father in accordance with the Hindu rites, and it is not supported by any registered document to establish that such an adoption had really and as a matter of fact taken place, the Court has to act with a great deal of caution and circumspection. Be it realized that setting up a spurious adoption is not less frequent than concocting a spurious Will. and equally, if not more difficult to unmask. And the Court has to be extremely alert and vigilant to guard against being snared by schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the Will is obliged to dispel the cloud of suspicion. the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is not supported by a registered document or any other evidence of a clinching nature if there exist suspicious circumstances, the same must he explained to the satisfaction of the conscience of the Court by the party contending that there was such an adoption. Such is the position as an adoption would divert the normal and natural course of succession. Experience of life shows that just as there have been spurious claims about execution of a Will, there have been spurious claims about adoption having taken place. And the Court has therefore to be aware of the risk involved in upholding the claim of adoption if there are circumstances which arouse the suspicion of the Court and the conscience of the Court is not satisfied that the evidence preferred to support such an adoption is beyond reproach.

In the present case a very significant circumstance which creates a serious doubt about the genuineness of the claim of adoption has come to light. Syamosundar, the natural father of the plaintiff had given his eldest son Naraainga in adoption to Hira, the widow of Godavarl in 1942 by a registered document. So also when defendant Rahasa had adopted her husband''s sister''s son Gangapani in 1942 it was by a registered document. Admittedly, therefore, Rahaaa, the alleged adoptive mother, had resorted to adoption by a registered document as early as in 1942 and she was aware of the importance of the adoption being evidenced by a registered document. So also Syamosundar, the father of plaintiff Gokul was fully aware of the importance of having adoption evidenced by a registered document in order to avoid any future controversy. He had been party to the adoption of his eldest son Naraslnga by a registered document in 1942. And yet there is no registered document to evidence the alleged adoption of Gokul by Rahasa in 1956 (it is alleged that the adoption took place on March 22, 1956). The evidence of Syamosundar shows that even at the time of the alleged adoption of Gokul he was aware about the importance of having the adoption made by a registered document. His evidence furthermore shows that he had discussed the matter about execution of a registered deed of adoption with Rahasa but according to him Rahasa had put it off. The trial Court disbelieved this version. Rahasa herself stated on oath that no such adoption had taken place. It was not even suggested to her in her cross-examination that there was any talk about the adoption being evidenced by a registered document. There was no reason to disbelieve Rahasa. If Rahasa had really adopted Gokul having felt the need for doing so there would have been no occasion on her part to be reluctant to execute a registered document as was done by herself earlier when she adopted Gangapani in 1942. So also Syamosundar who was giving his natural son in adoption would have in the normal course of things insisted upon the adoption being evidence by a registered document, he himself having resorted to this mode way back in 1942 when his eldest son Naraslnga was given in adoption. According to the plaintiff his age was about 11 years at the time when the adoption took place and he left the school in order to live with and look after his adoptive mother after some time Syamosundar in his evidence has clearly admitted that the name of Gokul''s father was not changed after the adoption. He subsequently gave the explanation that the name was not changed because after some time Gokul left the school. Anyway this circumstance also creates a doubt about the genuineness of the adoption as alleged by the plaintiff. Another circumstance which creates a serious doubt in our mind is that no reliable evidence has been adduced to show that Gokul had started living with Rahasa since 1956 till the dispute arose in 1962. If the version of adoption had been true and the evidence of Syamosundar and Gokul that Gokul had started living with his adoptive mother Rahasa was true, Gokul would have lived with his adoptive mother from the age of 11 till the age of 17. At least, one neighbour could have been found to prove that Gokul was living with Rahasa. No such evidence has been adduced. On the other hand. Rahasa says that adoption never took place and Gokul never came to live with her. The whole purpose of the adoption presumably was to have someone to look after her in her old age (she was about 61 at the time when the alleged adoption took place in 1956). Under the circumstances, absence of satisfaction evidence to show that the adoption had been acted upon and the absence of subsequent conduct supporting the version of adoption are circumstances which create serious doubts. Yet another very important circumstance which has not been accorded sufficient importance is that Syamosundar and Ram Krishna Sabat, the maternal uncle of Gokul who acted as next friend when the suit was instituted, had in terms mentioned the names of three respectable persons as having remained present at the adoption ceremony at the time of adoption. None of these three persons was examined. No explanation has been offered as to why these three persons who admittedly were present according to the plaintiff, and whose names were mentioned in the plaint, were not examined. The trial Court rightly drew the inference that if they had been examined, they would not have supported the plaintiff. What is more the priest who is supposed to have performed the adoption ceremony has also not been examined. A convenient explanation has been found by naming a person who was dead. This is another suspicious circumstance. So also, none of the near relatives or prominent persons of the village have been examined to show that such an adoption had taken place. It was not even suggested to defendant Rahasa that the giving and taking ceremony had taken place. Nor was it suggested to her that a particular person had acted as priest. In this state of evidence the trial Court rightly dismissed the suit. The High Court attached little or no importance to this catena of significant circumstances and reversed the findings recorded by the trial Court by the simplistic method of accepting the evidence adduced by plaintiff without analysing or testing it on the touchstone of probabilities. In fact, the finding of the High Court, can be said to be a finding which is not supported by any evidence worth the name. Too much importance was attached to an alleged inscription made in the Purl temple. There was no reliable evidence to establish that the said inscription was made at the instance of defendant Rahasa. No temple records were forthcoming. There was nothing to show that it was an authentic inscription made in order to evidence the adoption at the instance of Rahasa. In any case, the dark clouds of suspicious circumstances have not been dispelled by the plaintiff. Taking an overall and cumulative view of all the relevant circumstances we are not at all satisfied that the plaintiff has established that such an adoption had really taken place. Under the circumstances, we allow the appeal, set aside the Judgment and decree of the High Court and restore the judgment and decree passed by the trial Court. There will be no order as to costs throughout."

Mr. Maitra nextly relied on another decision of the Hon''ble Apex Court reported in Madhusudan Das Vs. Smt. Narayanibai (Deceased) by Lrs. and Others, ). The learned counsel for the appellant relied on paragraph 19 of this judgment which is quoted hereinbelow :-

"19. It is well settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity. A Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another, . It is also true that the evidence in proof of the adoption should be free from all suspicion of fraud and so consistent and probable as to give no occasion for doubting its truth, Kishori Lal Vs. Mst. Chaltibai, . Nonetheless the fact of adoption must be proved in the same way as any other fact."

The learned counsel for the appellant submitted that a person who seek to displace the burden that relies upon him he is to make by proof of the factum of adoption and its validity. The learned counsel for the appellant referred to the averments made in paragraph 6 (six) of the plaint and its answer given in paragraph 17 of the W. S. the learned counsel for the appellant also referred to the evidence of D. W. 2. The learned counsel for the appellant then relied on another decision of the Hon''ble Apex Court reported in Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and Another, The learned counsel for the appellant further relied on a judgment of the Hon''ble Apex court reported in Akshaya Restaurant Vs. P. Anjanappa and Another, The learned counsel for the appellant submitted that even admission in the pleading can be explained and inconsistent pleas can be taken in amendment. The learned counsel for the appellant further relied on a decision reported in M/s. Estralla Rubber Vs. Dass Estate (Pvt.) Ltd., . The learned counsel for the appellant submitted that in this judgment the Hon''ble Apex Court dealt with the scope of amendment of pleading by defendant and the Hon''ble Apex Court observed that such an amendment ought to be allowed where purpose of proposed amendment is to elaborate defence and take additional plea in support of the case. The Hon''ble Apex Court also observed in this judgment that even where there is any indirect admission in the original pleading, it is upon the defendant to explain the same. The learned counsel for the appellant submitted that P. W. 2 Rabindra Nath in his evidence has stated "My mother never adopted the defendant. The learned counsel for the appellant then explained the statement made in the deed of gift and submitted that it was read over and explained and 3 witnesses were there and out of this 3 attesting witnesses two deposed. The learned counsel for the appellant referred to the averments made in paragraph 3 of the plaint.

The learned counsel for the appellant then submitted that regarding possession they did not even show that the defendant is not in possession when the said application was moved. The learned counsel for the appellant referred to the evidence of P. W. 2 and said that P. W. 2 in his evidence has stated that I do not know the boundaries of the suit land. The learned counsel referred to Section 126 of the Transfer of Property Act and submitted that deed of gift is irrevocable. The learned counsel for the appellant therefore submitted that instant appeal should be allowed and the judgment and decree passed by appellate Court-be-low should be set aside.

Now, let me come to the submissions of the learned counsel for the respective parties as well as the document on record. From the evidence on record and from the judgments and decrees passed by the Court-be-low it appears that there are some facts which are admitted. Such as Smt. Durga Bala Devi executed the deed of gift in favour of Mr. Balai Chandra Parul that is the defendant/said Balai Chandra Parui accepted the deed of gift. In the said deed of gift there remains three attesting witnesses. One Sri Ganesh Chandra Das, the deed writer, another Sri Patitosh Chakraborty and the third is Sri Sarada Charan Das. In the last line of the deed it has been written in Bengali Sri Balai Chandra Parui read and explain the purport of the deed of gift to Smt. Durga Bala Devi the donor herein. Up to this stage everything is admitted and/or comes out of record. Now, let me see the provisions of Section 42 and Section 126 of the Transfer of property Act, Both the Sections are quoted hereinbelow :-

"42. Transferred by person having authority to revoke former transfers - where a person transfers any immovable property, reserving power to revoke the transfer, and subsequently transfers the property for consideration to another transferee, such transfer operates in favour of such transferee (subject to any condition attached to the exercise of the power) as a revocation of the former transfer to the extent of power."

"126. When gift may be suspended or revoked - the donor and donee may agree that on the happening of any specified which does not depend on the Will of the donor a gift shall be suspended or revoked; but a gift which the parties agreed shall be irrevocable wholly or impart, at the mere Will of the donor, is void wholly or impart, as the case may be.

Gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract it might be rescinded.

Save as aforesaid, a Gift cannot be revoked.

Nothing contained in this section shall be deemed to effect the rights of transferees for consideration without notice."

Now, in this connection let me see what the Registration Act provides. Section 34(3) runs as follows :-

"34(3). the registering officer shall thereupon-

(a) Enquirer whether or not such document was executed by the persons by whom it purports to have been executed;

(b) satisfy himself as to the identity of the persons appearing before him and alleging ''that they have executed the document; and

(c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear."

The above being the position there I is no scope in normal course for revocation of a deed of gift when the said deed of gift i was executed by the donor accepted by the ! donee and registered by the registering authority. From the provisions of Registration Act it is clear that the registering authority I shall enquire . This term "shall Enquirer" is really important and most relevant here. The Transfer of Property Act also provides that normally a deed of gift cannot be revoked. The Registration Act as referred to above also provides that the registering officer will satisfy himself about the identity of the parties. Therefore, identification and enquiry about the execution of deed of gift completes the deed.

Reading the provisions of Section 42 and Section 126 of the Transfer of Property Act the ratio which comes out is that the deed of gift can be revoked if there is an agreement for revocation. In such circumstances the deed of gift is not at all a gift because if somebody agrees to gift some property to anybody at the same time the donor retains the power to revoke the deed then it cannot be termed to be a deed of gift.

34A. The deed of gift however can be revoked :-

(i) If there is any prior condition that the gift can be revoked or if the deed of gift has been executed under undue influence or donee commits fraud. The Registration Act also give support to the conditions that Registration or execution of the deed-is done after the satisfaction of the registered regarding identification.

(ii) If the donee obtain the deed of gift executing under influence or committing fraud. These are the three conditions ''in which the deed of gift can be revoked. Let me now see whether either of the three conditions successfully prevailing over the first deed of gift which was executed and registered.

Second question remains the question of coercion. This coercion is not the point involved in the instant case inasmuch as it is nobody''s case that the first deed ''of gift executed in favour of the defendant was done under undue influence.

Third question remains about the fraud. Let me now see that how far the appellate Court could succeed in proving that the consent of the donor was procured by fraud. The term ''consent'' has been defined in the Indian Contract. According to the provisions of Section 13 of the Indian Contract Act, "two or more persons are said to ''consent'' when they agree upon the same thing in the same sense. As per Mullah''s observations in this regard, The Indian Codes have followed English authority in holding that, in normal circumstances, a man is not allowed to deny that he concentrated to that which he has in fact done, or enabled to be done with the appointing authority. The appellate Court below has come to the conclusive finding in the instant case on two counts :

Firstly, the donor was an illiterate and pardanashin lady and the defendant committed fraud and succeeded in securing her signature over the deed. There is no doubt about it, or there is no dispute between the parties that from evidence on record it comes out that the donor used to write letter to his (her) sons regularly and sons used to answer also. The donor in her evidence has also accepted in the deposition that she used to write letter to her sons and her sons used to answer the same. The donor has also in her evidence stated that she goes to "Saheb Doctors". If a lady writes letters regularly to her son, it can never be said that the lady is illiterate.

According to Mullah, "It might be possible to refer to this head some of the cases in which gifts or other acts, practically amounting to acts of bounty, of pardanashin women have been set aside. But it is certainly not necessary for this purpose to show that the nature of the acts was not understood at all. The Jurisdiction rests on a presumption of imperfect knowledge of the world and exposure to undue influence, making it the duty of a person taking a beneficial grant or contract from a pardanashin woman to show that the deed was explained to her and understood by her, so that the ordinary burden of proof is reversed. These cases accordingly belong to the head of undue influence."

In Contract Act in Section 15 Coercion has been defined which is inter alia as follows :-

"15. "Coercion" is the committing, or threatening to commit, any act forbidden by the Indian Penal Code, or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement."

From the intention of Coercion therefore it comes out that there would be unlawful detaining or threatening to detain to the prejudice of a person which is forbidden under Indian Penal Code. This is not also the case of either of the parties.

Fraud has been defined in Section 17 of the Indian Penal Code which says "Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:-

"(1) the suggestion, as to a fact, of that which is not true by one who does not believe it to be true;

(2) the active concealment of a fact by one having knowledge or belief of the fact;

(3) a promise made without any intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be fraudulent."

Explanation. - Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech.

It, therefore, is clear from the above mentioned definition of fraud that the persons alleging fraud is to prove beyond all doubts that the fraud has been committed that is consent to contract has been procured by the party.

In the perspective of evidence or in the perspective of judgment and decree passed by the appellate Court-below, let me find how far the plaintiff could satisfactorily prove that the defendant induced plaintiff No. 1 to execute the deed with mala fide intention. It appears from the evidence on record that in her evidence the plaintiff No. 1 admitted that she used to go to "Saheb Doctors". The plaintiff No. 1 in her evidence also stated that she used to writes letter to her sons and they used to give reply. The same fact comes out from the son''s evidence also and from the deed executed in favour of the defendant also it comes out that it was read over and explained to her. She also put her signature in the deed. All these evidence if collectively read and the provisions of the Registration Act if read together the summary comes out that the plaintiff No. 1 executed the deed in her own volition. The appellate Court-below came to the findings without looking into the entire evidence. Actually the appellate Court-below started fishing out evidence and came to the conclusive finding that there was fraud on behalf of the defendants. In view of the discussion made above it can be safely said that the Judgment and decree passed by the appellate Court-below is totally perverse.

In that view of the matter I allow the Second Appeal and set aside the judgment and decree passed by the appellate Court-below and affirm the judgment and decree passed by the learned trial Judge.

Let a decree be drawn up accordingly. In the facts and circumstances of the case the parties are to bear their own costs respectively.

Let the Lower Court Records be sent down to the Courts-below forthwith.

Urgent Xerox certified copy, if applied for, will be supplied to the parties expedtiously.