Maya Rani Nath and Others vs Lila Rani Nath and Others

S.C. Das, J.—1. This second appeal has been admitted for hearing on the following substantial question of law:--

"1. Whether the finding of the appellate Court on Issue Nos. (ii) and (iii) is vitiated in law due to mis-appreciation and non-appreciation of the evidence on record?"

Heard learned Sr. counsel, Mr. D. Chakraborty assisted by learned counsel, Mr. H. Laskar for the appellants and learned counsel, Mrs. A.S. Lodh for the respondent Nos. 1(a) to 1(d).

"No representation on behalf of other respondents."

The appellants as plaintiffs instituted Title Suit No. 04(partition)/2005 seeking partition of the suit land described in the schedule of the plaint and also prayed for declaration that the Deed of Gift dated 11.08.1993 (Exbt. A) and Deed of Gift dated 11.08.2003 (Exbt. B) were fraudulent, collusive and are not binding on the plaintiffs and liable to be cancelled.

The plaintiffs, inter alia, contended that the suit land described in the schedule of the plaint originally belonged to Late Pyari Nath, father of the plaintiffs and defendant No. 1, Promode Ranjan Nath (since deceased). Pyari Nath died on 21.08.1993 leaving behind Smt. Abala Nath, wife; the defendant No. 1, Sri Promode Ranjan Nath, only son and the three plaintiffs as daughters. It is the claim of the plaintiffs that the plaintiffs, the defendant No. 1 and Abala Nath became owner of 1/5th share of the total property left by deceased Pyari Nath. Smt. Abala Nath also died on 12.08.2003 leaving behind the plaintiffs as three daughters and defendant No. 1 as the only son. The plaintiffs claimed partition of the suit land and further stated that their father Pyari Nath was suffering from old age ailments and was physically and mentally infirm before his death and was not in a position to execute any Gift-deed but defendant No. 1 claimed that Pyari Nath executed a Gift-deed on 11.08.1993 (Exbt. A) donating thereby land measuring 0.36 acres and that the said Gift-deed was fraudulent and collusive and liable to be cancelled. The plaintiffs also claimed that Abala Nath died on 12.08.2003 and before her death she was also physically infirm and was lying in death bed and the claim of the defendant No. 1 that by executing Gift-deed No. 1-1969, dated 11.08.1993 (Exbt. B), land measuring 0.32 acres were donated to defendant No. 1 was fraudulent, collusive and not binding upon the plaintiffs and therefore, liable to be cancelled.

Defendant No. 1, the predecessor of the present respondent Nos. 1(a) to 1(d) contested the suit by filing written statement, inter alia, contending that Pyari Nath and Abala Nath executed the Gift-deeds genuinely and thereby donated the land to the defendant No. 1 measuring 0.36 acres and 0.32 acres respectively and that there was village meetings held on 04.11.1996, 09.12.2006 and 04.01.1997 and the respective share of the plaintiffs and defendant No. 1 was decided and even thereafter the plaintiffs instituted the suit wrongly claiming the share in the gifted land.

The trial Court framed 6(six) issues namely--

"i. Is the suit bad for non-joinder of parties?

ii. Whether the registered deed of gift No. 1-1969 dated 11-8-2003 is fraudulent and not binding upon the plaintiffs?

iii. Whether the registered deed of gift No. 1-2977 dated 11-8-1993 is fraudulent and not binding upon the plaintiffs?

iv. Whether all the properties are brought into this suit for partition?

v. Are the plaintiffs entitled to get the decree as prayed for?

vi. To what other relief/reliefs the parties are entitled?"

The plaintiffs adduced both oral and documentary evidence and defendant No. 1 also adduced oral and documentary evidence. The trial Court decided all the issues in favour of the plaintiffs and accordingly decreed the suit. While deciding issue No. ii and iii, the trial Court held that the Gift-deeds executed by Pyari Nath marked as Exbt. A and the Gift-deed executed by Smt. Abala Nath marked as Exbt. B were null and void and therefore, declared them as cancelled and directed partition of the properties, mentioned in those deeds also equally between the plaintiffs and defendant No. 1.

Aggrieved, the defendant No. 1 preferred Title Appeal No. 02/2009 in the Court of Additional District Judge, Dharmanagar and the learned Addl. District Judge by judgment and decree dated 29.07.2011 set aside the decision of the trial Court in respect of issue Nos. ii and iii and held that the Gift-deeds were genuine and the property mentioned in the Gift-deeds shall not be subject of partition.

Having felt aggrieved, the plaintiffs preferred the present appeal.

Learned Sr. counsel, Mr. D. Chakraborty appearing for the appellants was fair enough to submit that Gift-deed No. 2977 dated 11.08.1993 (Exbt. A), executed by Pyari Nath in favour of defendant No. 1, Promode Ranjan Nath was not challenged by the plaintiffs within the statutory period of time and therefore, he has nothing to argue regarding Exbt. A. In respect of Exbt. B i.e. the Gift-deed No. 1969, dated 11.08.2003 executed by Smt. Abala Nath in favour of defendant No. 1, Promode Ranjan Nath, it is submitted by Mr. Chakraborty, learned Sr. counsel that it was challenged within the statutory period of 3 years and so the plaintiffs have got a right to get a declaration in their favour that the said Gift-deed was fraudulent, collusive and was obtained by undue influence. It is candidly submitted by learned Sr. counsel, Mr. Chakraborty that both the father and mother were living with defendant No. 1 and so the defendant No. 1 had the scope to influence the parents to execute Gift-deed in his favour depriving the plaintiff-daughters. It is on record that Abala Nath, mother died on 12.08.2003 i.e. just on the following day of the execution of the Gift-deed. Abala Nath was ill all along and that is also admitted by the defendant No. 1. Under such circumstances, burden is on the defendant No. 1 to prove that Abala Nath was capable of making a Gift-deed. In support of his contention he has referred the case of Mst. Sethani V. Bhana, reported in , AIR 1993 SC 956.

On the other hand, learned counsel Mrs. A.S. Lodh appearing for the legal representatives of deceased defendant No. 1 submitted that the Gift-deeds are registered instruments. They should be presumed to be correct until otherwise proved. She has also submitted that in Gift-deed dated 11.08.1993 (Exbt. A), the plaintiff No. 2 was also a witness. The plaintiffs only to deprive their brother take shelter of falsehood to say that the Gift-deeds were obtained fraudulently or collusively. She has also submitted that there was no allegation of undue influence in plaint. The plaintiffs knew the fact of execution of those Deeds of gift but did not challenge those Deeds of gift at once, since they knew the fact. Now out of greed, they have instituted the suit. The plaintiffs have failed to prove that those Gift-deeds were collusive or fraudulent and hence, the appeal should be dismissed. She has referred to the decision of Dilip Dutta Bhowmik & Ors. v. Mira Dutta Bhowmik & Anr., reported in , 2007 (1) GLT 345, a decision of Agartala Bench of the Gauhati High Court.

It is an admitted position that the land described in the schedule of the plaint originally belonged to Pyari Nath and he died on 21.08.1993 leaving behind his wife Abala Nath, three daughters i.e. the plaintiffs and one son i.e. the defendant No. 1, Promode Ranjan Nath. The plaintiffs, the defendant No. 1 and Abala Nath were therefore entitled to 1/5th share of the property left by Pyari Nath.

The plaintiffs claimed that Exbt. A, Exbt. B i.e. the two Gift-deeds executed by Pyari Nath and Abala Nath in favour of defendant No. 1, Promode Ranjan Nath were fraudulent and collusive Deeds and so those Deeds should be cancelled and the properties mentioned in those Deeds should be equally partitioned between the plaintiffs and the defendant No. 1. Let us first have a look to the pleading of the plaintiffs while challenging those two Gift-deeds.

Para 16 of the plaint contains the pleadings of the plaintiffs while challenging those two Gift-deeds. Para 16 reads as follows:--

"16. That said Abala Nath, W/o. Lt. Pyari Nath died on 12-08-2003 A.D. She had been seriously ailing since long prior to her death and during a long period she was physically infirm and was lying in a death bed condition and as such it was quite impossible for her to execute the regd. Gift deed No. 1-1969 on 11-8-2003 (i.e. the previous day of her death) in favour of the principal defendant, Shri Promode Ranjan Nath in respect of and measuring 0.320 acre and hence the registered gift deed No. 1-1969 dated 11-8-2003 executed by Smti. Abala Nath in favour of Shri Promode Ranjan Nath is fraudulent, collusive and liable to be cancelled and not binding upon the plaintiffs.

That, said Pyari Nath died on 21-8-1993 A.D. He had been seriously ailing since long prior to his death and during a long period he was physically and mentally infirm and was lying in a death bed condition and as such it was quite impossible for him to execute the registered gift deed No. 1-2977 dated 11-8-1993 with free state of mind and consent in favour of the principal defendant, Shri Promode Ranjan Nath in respect of land measuring 36 sataks and hence the said gift deed is also fraudulent, collusive and liable to be cancelled and not binding upon the plaintiffs.

If any other document fraudulently obtained by Shri Promode Ranjan Nath, the principal defendant No. 1 beyond the knowledge of plaintiffs and disclosed later on then the plaintiffs shall take appropriate steps in proper time for cancellation of those documents."

Order VI, Rule 2 of CPC prescribes that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.

Rule 4 of the said Order prescribes that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms (as prescribed) particulars with date and items if necessary shall be stated in the pleadings.

In view of the above provision, the plaintiffs were bound to give particulars of the fraud or collusion in the plaint. There is nothing at all in the entire plaint about the particulars of fraud or collusion. Learned Sr. counsel has submitted that by undue influence the Gift-deeds were obtained by the defendant No. 1 but there is nothing in the plaint that defendant No. 1 exercised undue influence. In the absence of any pleading the evidence also cannot be led in respect of fraud, collusion or undue influence.

The trial Court, as I find, while deciding issue Nos. ii and iii has made some uncalled for observation referring to the Registration Act. Once those Gift-deeds were registered, the normal presumption shall be that those were genuinely registered. According to law, a Gift-deed must be registered. Both the Gift-deeds were duly registered through commission. There is provision for registration through commission and once the registering authority being satisfied registered it, burden lies on the parties to prove who challenged the validity of the registration.

It is an admitted position that Smt. Abala Nath was ill before her death and the Gift-deed was executed on 11.08.2003 and she died on 12.08.2003. Simply because she died on the following day of the execution of the Gift-deed no inference can be drawn that on the date of execution of the Gift-deed she was physically and mentally incapable of executing the Deed. D.W. 1 no doubt admitted that his mother was ill before her death. But he has not admitted the fact that she was mentally and physically infirm and, therefore, was not in a position to execute a Gift-deed. Mere illness does not make a person incapable of executing a Deed.

The case of Mst. Sethani (supra) referred by learned Sr. counsel is on different context. The burden lies on the plaintiffs at first to prove that there was undue influence. Here in this case, there is even no plea of undue influence. The plaintiffs pleaded only fraud and collusion but there is no evidence of fraud and collusion. So the decision referred by learned Sr. counsel is not applicable in the present case. The decision of Dilip Dutta Bhowmik (supra) referred by learned counsel, Mrs. A.S. Lodh relates to execution of a Will wherein the issues of undue influence, etc. has been discussed.

I find no necessity at all to enter into those aspects in details. The Gift-deed dated 11.08.1993 i.e. (Exbt. A) was not challenged within 3(three) years. No averments made by the plaintiffs as to on which date they first came to know about that Deed. The challenge in respect of that Deed is, therefore, absolutely time barred as prescribed in Article 56 to 58 of the schedule of Limitation Act. In respect of Gift-deed dated 11.08.2003, i.e. Exbt. B a copy of which is also marked as Exbt. 2 by the plaintiffs, I am of considered opinion that the appellate Court rightly decided the issue against the plaintiffs. Though it was within the prescribed period of limitation, the plaintiffs have to prove that it was fraudulent or collusive. No particulars of fraud or collusion stated. Simply on the ground that Abala Nath was suffering from illness, no inference can be drawn that she was physically and mentally infirm and that she was not capable of executing the Deed. The appellate Court rightly decided issue Nos. ii and iii against the plaintiffs.

The second appeal, therefore, is found to be devoid of any merit.

The plaintiffs and defendant No. 1 are entitled to get equal share of that part of the suit land excepting those two Gift-deeds.

The second appeal accordingly stands dismissed.

Send back the L.C. records along with a copy of this judgment.