Sri Srimanta Mondal vs Smt. Kripamoyee Mondal & Anr.

This second appeal is directed against the judgement and decree dated 29th July, 2016 passed by the Additional District Judge 2nd Court, Katwa, Burdwan in Title Appeal No. 81 of 2014/7 of 2014 affirming the judgment and decree dated 31st January, 2014 passed by the Civil Judge, (Junior Division) 1st Court, Katwa, Burdwan in the Title Suit No.9 of 2007 at the instance of the plaintiff/appellant.

Let us now consider as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure.

The plaintiff filed a suit for declaration and permanent injunction. Admittedly, the suit property belonged to the father of the plaintiff and the defendant no.1. The defendant no.2 is the son of the defendant no.1. Thus the plaintiff is the maternal uncle of the defendant no.2 and the suit property belonged to the maternal grandfather of the defendant no.2. The maternal grandfather of the defendant no.2 executed a deed of gift bequeathing his property in favour of his grand son viz., defendant no.2. The said deed of gift was challenged by the plaintiff viz., the maternal uncle of the defendant no.2.

Both the Courts below held that the deed of gift was duly executed by the donor and the execution of the said deed of gift by the donor was also duly proved by attesting witnesses. Thus, both the Courts below dismissed the plaintiff''s suit on such concurrent findings of fact.

Mr. Mukhopadhyay, learned advocate appearing for the appellant tried to impress upon us that the execution of the said deed of gift by the donor could not be proved by the attesting witness. He said that one of the attesting witnesses, DW2 viz., Rafiqul Ahamed was not present at the time of execution of the said deed of gift. He pointed out that the last portion added in the deed was admittedly not written by the scribe of the deed and that portion was written by the said Rafiqul Ahamed, who acted as an attesting witness as well as identifier of the donor. According to him, no part of the deed can be written by any person other than the scribe and since the scribe admittedly did not write the last portion of the said deed, the deed is void as the interpolation made in the deed was not done in the way as it was required to be done as per the Registration Act.

The added portion in the deed of gift was written by Rafiqul Ahamed, however, that portion has nothing to do with the contents of the deed. It was mentioned in the said added portion that donor used to execute the deed by signing himself earlier but recently due to his physical illness he executed the said deed of gift by putting his LTI. The contents of the deed of gift was read over by Rafiqul Ahamed, namely the D.W-2. This added portion was written in the form of a certificate certifying the due execution of the said deed by the donor after the contents of the said deed was read over to him. This type of certificate is usually given by the person who reads over the contents of the deed to the executant of such deed. In fact this has been done in the instant case. We do not find any abnormality in it.

On reading of the evidence of D.W-2, we are of the view that Rafiqul Ahamed was present all throughout. He said in his evidence that the donor executed the said deed in the presence of the attesting witnesses and the attesting witnesses also signed in the presence of the donor and the donee. He also said in his evidence that after the execution was completed, the deed was presented for registration before the Registering Authority. Reading the evidence of the said D.W-2, we are of the view that the said witness was present all throughout i.e, the right from the time of execution of the said deed of gift upto the time of presentation of the said deed of gift before the Registering Authority.

Mr. Mukhopadhyay, however, failed to convince us that a person who acted as an identifier cannot make the endorsement which was made in the added portion of the deed. We have already mentioned above that the added portion in the deed has nothing to do with the operative part of the deed of gift. In the added portion only a certificate was given as to the reading over the contents of the said deed to the donor and in addition thereto the reason which prevented the donor from signing the said deed and which prompted the donor to put his LTI on the said deed was simply mentioned therein. By making such addition in the said deed by one of the witnesses who, in fact, read over the contents of the deed to the donor, the deed of gift cannot be held to be invalidated.

As such, we are of the view that no substantial question of law involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure. We, thus, decline to admit this appeal.

The appeal, thus, stands dismissed.

In view of dismissal of this appeal in the manner as aforesaid, no further order need be passed on the application being CAN No 10594 of 2016. The said application is thus, deemed to be disposed of.

Urgent photostat certified copy of this order, if applied for, be furnished to the appearing parties on priority basis.