Puspa Bagani vs Angur Bala Bagani

Bhaskar Bhattacharya, J.—This second appeal is at the instant of Defendant in a suit for declaration and injunction and is directed against the judgment and decree dated September 13, 1994 passed by the Iearned Additional District Judge, 2nd Court, Howrah in Title Appeal No. 214 of 1985 thereby reversing those dated May 31, 1985 passed by the learned Munsif, 4th Court, Howrah in Title Suit No. 132 of 1976.

The widow and the married daughter of one Gadadhar Bagani had filed the aforesaid Title Suit No. 132 of 1976 in the 4th Court of Munsif, Howrah for declaration that they are the absolute owners of the suit property and that a deed of settlement alleged to have been executed by the said Gadadhar Bahani was illegal, inoperative and not binding upon them and for permanent injunction restraining the Defendant from interfering with the possession of the Plaintiffs in the suit property.

The case made out by the Respondents was that their predecessor-in-interest viz. Gadadhar Bagani died on January 2, 1975 leaving them as the sole heirs and legal representatives. After the death of said Gadadhar, the Defendant, who is a nephew of Gadadhar tried to interfere with the possession of the Respondents in the suit property and claimed title to the same on the ground that Gadadhar had made a gift of the suit property in his favour before his death. In view of such assertion, the Respondents after searching in the registration office came to know that a deed of settlement was allegedly executed by Gadadhar on December 21, 1974 whereby he reserved life interest for himself and his wife and thereafter has given absolute right in favour of the Defendant. According to the Respondents, Gadadhar was an illiterate person and was mentally and physically incapable of understanding the contents of the deed alleged to have been executed. They stated that the L.T.I. appearing in the said deed was not that of Gadadhar. Even if it was found that he put his L.T.I. on the same, he did the same without knowing contents thereof and that the same was not read over to him. The Defendant by practising fraud and undue influence procured the said document and got the same scribed by a particular friend of him.

The aforesaid suit was contested by the Defendant by filing written statement thereby denying the material allegations made in the plaint and the defence of the Defendant was that although Gadadhar was illiterate person but he had sufficient knowledge about property and had even acquired immoveable property of his own. According to the Defendant, since Gadadhar had no male issue and he being the only male member in the family, he was in good term with his uncle and he was treated by Gadadhar as his own son, as a result of which they said deed was executed. The said deed cannot be said to be unnatural one because by the said deed Gadadhar gave life interest to his wife. The allegations of fraud and undue influence etc. were denied by the Defendant.

At the time of hearing, four persons including the Doctor, who gave death certificate of Gadadhar gave evidence in support of the Plaintiffs'' case while three persons deposed on behalf of the Defendants. The learned trial Judge on consideration of the materials on record held that the contents of the deed were natural and Gadadhar knowing full well the contents of the deed executed the same and thus dismissed the suit.

Being dissatisfied, the Plaintiffs preferred an appeal before the learned first Appellate Court below and by the judgment and decree impugned in the instant second appeal the learned first appellate Court below set aside the judgment and decree passed by the learned trial Judge and decreed the suit.

Being aggrieved, the Defendant has preferred the instant second appeal. On the death of Defendant, his heirs have been substituted and they are now proceeding with the instant second appeal.

Mr. Roychowdhury, the learned advocate appearing on behalf of the Appellants has strongly criticised the judgment of the learned first appellate Court below where the learned first appellate Court below had held that Gadadhar had not obtained any independent advice in the matter of execution of the said deed. According to Mr. Roychowdhury, Gadadhar had in the past executed several deeds though he was not literate but had sufficient wordily knowledge and he also acquired property of his own. Therefore, in the instant case there was no necessity of getting independent advice from anybody in the matter of execution of the said deed.

Mr. Roychowdhury further contends that even P.W. 3 has in his evidence said that he had seen Gadadhar selling vegetables in the market fifteen days prior to his death. Therefore, according to Mr. Roychowdhury, the story of illness of more than three months prior to the death of Gadadhar was falsified by the evidence of the own witness of the Plaintiffs. Mr. Roychowdhury further contends that in the deed Gadadhar made provision for his wife during her life time and after the death of wife, the property is given to his nephew since he had no son. Since the only daughter of Gadadhar had already been married, according to Mr. Roychowdhury, there is nothing unnatural in the deed of settlement thereby ultimately giving the property in favour of the nephew.

Therefore, Mr. Roychowdhury contends that the judgment and decree passed by the learned Court of appeal below is not a proper judgment of reversal and should be set aside. In support of the aforesaid contentions Mr. Roychowdhury relied upon the decision of this Court in the case of Sm. Karunamoyee Debi Vs. Sm. Maya Moyi Debi and Others, and also a decision of the Apex Court in the case of Surain Singh (Dead) by Lrs. and Others Vs. Mehenga (Dead) by Lrs.,

Mr. Banerjee, the learned advocate appearing on behalf of the Respondents has supported the judgment and decree passed by the learned first appellate Court below and has contended that the deed having been executed only twelve days prior to the death of the said Gadadhar, the learned Court of appeal below rightly held that he had no mental or physical capacity to understand the contents of the deed. Mr. Banerjee drew attention of this Court to the deposition of the Doctor, who gave the death certificate of Gadadhar showing that the said Doctor testified that three months prior to his death he could not remember anything. According to Mr. Banerjee, the findings arrived at by the learned first appellate Court below on the basis of materials on record are quite reasonable findings and as such this Court should not re appreciate oral evidence for the purpose of upsetting the findings of the learned first Appellant Court below.

After hearing the learned advocates for the parties and after going through the materials on record it appears that there is no dispute that Gadadhar was an illiterate person, who put L.T.I. on the disputed deed. He died on January 2, 1975 whereas the said deed was executed and registered on December 21, 1974, just twelve days prior to his death. The learned first appellate Court has drawn adverse inference against the Defendant for non-production of one Madan Babu, who identified Gadadhar before the Registrar for the purpose of registration. The doctor, who gave death certificate was examined on Commission and he has specifically stated that for three months prior to the death, Gadadhar was very much ill and was incapable of understanding or remembering anything. I agree with Mr. Roychowdhury that person, who is otherwise capable of managing and acquiring one''s own property, does not require any independent advice in the matter of execution of any deed and for that reason the finding of the learned first appellate Court below that the said deed was invalid for want of independent legal advice, was not correct.

But the fact remains that the learned first appellate Court below has also on consideration of the materials on record believed the Doctor''s evidence that Gadadhar was mentally and physically unwell for three months prior to his death and as such had no physical or mental capacity to execute the deed of settlement twelve days prior to his death. The learned first appellate Court has also drawn adverse inference for non-production of Madan Babu, who took active part in the matter of execution and registration of the deed. Under the aforesaid facts and circumstances the execution of the deed and the physical and mental capacity of the executant thereof become doubtful. Therefore, even if I hold that there was no necessity of any independent legal advice for the purpose of execution of a settlement deed so far Gadadhar was concerned, in view of the aforesaid finding regarding physical and mental capacity of Gadadhar and the doubt whether the said deed was read over and explained to Gadadhar before execution, this Court is not in a position to set aside the judgment and decree passed by the learned first appellate Court below.

The learned first appellate Court below has after all believed the testimony of the Doctor, who issued death certificate and has disbelieved the evidence given on behalf of the Defendants. The evidence given by P.W. 3 upon which strong reliance was placed by Mr. Roy chowdhury does not show whether the deed was actually read over or explained to Gadadhar and whether he had mental or physical capacity on December 21, 1974. The said witness gave a rough idea that he had seen Gadadhar fifteen days prior to his death, selling vegetable in the market. In view of such statement, the evidence of Doctor and other witnesses cannot be disbelieved.

Therefore, although in a part of the judgment delivered by the learned first appellate Court he has committed some mistake of law but on the question of mental and physical incapacity of Gadadhar there is no illegality and on that score alone the Plaintiffs are entitled to get a decree as prayed for. Moreover, the Defendant could not satisfactorily prove that the deed was read over and explained to Gadadhar. In other words due execution of the document and identification of Gadadhar before registering authority are doubtful and as found by the learned first appellate Court below, the Defendant could not discharge his burden of proving those facts.

Therefore, there is no merit in the instant second appeal and the same is dismissed.

In the facts and circumstances there will be however, no order as to costs.