Konmai Buragohain vs Suren Buragohain and Ors.

The substantial question of law in this case is as follows :

(i) Whether the learned Courts below erroneously held that the execution of gift deed by late Loknath Buragohain on 6.12.85 was not proved in the facts and circumstances of the case.

The admitted position in this case is that there is a registered deed of gift executed by late Loknath Buragohain in favour of this appellant who was married to late Loknath Buragohain but as it was second marriage after 1 955, the marriage was not a valid one in the eye of law and accordingly in order to protect the interest of the lady a deed of gift of the property of late Loknath Buragohain was executed by him in favour of this lady. This plaintiff brought a suit for declaration of title and for possession on the basis of this deed of gift. The defendants are the nephews of late Loknath Buragohain who contested the suit and claimed that the deed of gift is a forged one. In paragraph 7 of the plaint regarding deed of gift it has been stated as follows :

"7. That the above named Loknath Buragohain on 6.12.85 transferred, by a registered deed of gift No. 372 1 to his wife, the plaintiff, an area of 5 bigha 2 katha 1 3 lechas, the suit land, out of his share of 8 bigha 1 katha 10 lechas of the suit patta land of PP 1 19 of Gajpuria gaon, Thengal Mouza and delivered possession of the same and the plaintiff was accordingly possessing the same. A photostat copy of the gift deed is filed herewith as plaintiffs'' document No. 2."

Regarding trespass it is stated in'' paragraph 8 as follows :

"That the said Loknath Buragohain died in January, 1986. Finding his widow, the plaintiff a helpless woman, the defendant No. 1 with the aid of defendant No.2 his sisterinlaw''s husband and the defendant No. 2 his brotherinlaw criminally trespassed into the suit land out of the gifted lands on 25.5.86 and began ploughing the same. The plaintiff protested but the defendants paid no heed to her protests and on the other hand threatened her with dire consequences."

In paragraph 6 of the written statement it has been stated as follows:

"That para 7 of the plaint is totally denied. That late Loknath Buragohain never made any registered deed of gift to the plaintiff as mentioned in para 7 of the plaint without the knowledge of the defendant No. 1. He was bedridden for two years before his death and was looked after by giving proper treatment by the defendant No. 1. That the alleged registered deed of gift is and must be a forged one. It is impossible to late Loknath Buragohain to execute a registered deed of gift on 6.12.85 , when he died in January, 1986."

The deed was proved as Ext I and it was admitted in the evidence without objection. PW 2 is the scribe of this deed of gift. He is the petition writer. PW 3 is an attesting witness and he deposed regarding attestation and he further deposed that he knew the execution. He was also duly identified before the Sub Registrar by a covillager and that also was not challenged in the cross examination. On c the basis of this evidence it can be safely held that the plaintiff proved the execution/ attestation of the deed of gift. The plea that it was forged and that late Loknath Buragohain was not in a position to execute the deed and it was taken up by the defendants and the burden was on the defendants to establish that plea. But the only evidence with regard to this is that at the time of the execution late Loknath Buragohain he was ill, there is nothing else and it cannot be said that the executant " late Loknath Buragohain was ill at that point of time as urged and not in a position to execute the deed. Regarding plea of forgery there was no evidence.

That being the position, this second appeal is allowed. It is found that the findings arrived at by the Courts below are to be set aside on the ground that evidence was ignored in attesting the question of execution of attestation and proof of the deed of gift as indicated above. The further plea of forgery and inability of the executant to execute though being taken up by the defendant is also not proved. The burden is squarely on them to discharge the responsibility but they failed to discharge the burden. The suit of the plaintiff is decreed by setting aside the judgment of both the Courts below.

I have heard Mr. DC Mahanta, learned Advocate for the appellant and/Mr. R.P. Sarma, learned Advocate for the respondents.