Swapan Boral vs Secretary Salpa Primary School & ...
2021 Latest Caselaw 5086 Cal

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25   27.09.2021                         SA 265 of 2017
AN   Ct. No. 04
                                         SAT 492 of 2016
                         I.A. No.: CAN 1 of 2017 (Old No.: CAN 10113 of 2017)


                                     Swapan Boral
                                             vs.
                           Secretary Salpa Primary School & Ors.


                  Mr. Supratik Shyamal
                  Mr. M. Ahmed
                                                               ... for appellant



                            Mr. Shyamal, learned advocate appears on

                  behalf of appellant, who was plaintiff in the suit for

                  partition. He submits, his client admittedly is entitled to

                  41 decimals out of 2.03 acres of land recorded jointly. As

                  such, partition was claimed in respect of his client's

                  share. The lower Courts erred in finding his client had

                  only 8 decimals of land since, 33 decimals, out of it, his

                  client had transferred for purpose of setting up a school.

                  According to him, the transfer was by gift.         His client

                  produced the original deed at trial to show that the gift

                  was not accepted. The school never came up on part of

                  appellant's land. As such, questions arise and are

                  involved in the appeal, which should be admitted.

                            The trial Court found the deed was executed on

                  15th November, 1965.       Original deed was produced by

                  appellant and certified copy, by defendants. The learned

                  Judge said he had carefully gone through the deed and

                  found that the nature of it is in fact a gift deed. The lower

                  appellate Court though said, admitted position is that
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appellant on 15th November, 1965 executed a settlement

deed in favour of defendant no. 8 but went on to record

submission of respondents in reference to the deed as one

of gift. Also, there is no reversal of finding made by the

trial Court, of the deed being in nature of gift.

The evidence reveals the original deed was

produced by plaintiff. The lower appellate Court found, it

is evident that the school was running from house of

Kalipada Boral/defendant no. 4 in year 1981, when the

school building fell down. It is evident from R.S. record

that, inter alia, plaintiff's name is recorded against suit

property, that is, entire land of 2.03 acres. Inter alia, on

all these findings the lower appellate Court dismissed the

appeal, affirming judgment and decree for partition

passed by the trial Court. There is no evidence considered

by either Court below to show house of defendant no. 4

or the school building had stood on subject matter of the

gift deed being 33 decimals of land out in suit property.

There is also no finding, whether on lack of evidence or

otherwise, on controversy regarding the school running on

plot no.724, subsequently gifted by one Satyanarayan

Bhattacharyya.

We admit the appeal on following question to be

answered.

"i) Where there is gift of immovable property by a registered instrument remaining in possession of donor and absence of evidence to show donee had otherwise accepted the gift by taking possession of the immovable property, can such gift be said to have been effectively

made?"

Call for the records. Appellants will put in

requisites for preparing paper books and issuance of

notice of appeal.

Liberty to mention before the learned single

Judge having determination for hearing of the appeal,

when made ready.

(Arindam Sinha, J.)

(Sugato Majumdar, J.)