Amal Mondal vs Sankari Mondal & Ors
2023 Latest Caselaw 1334 Cal

                                            SAT 2037 of 2001
Item-4.                           CAN 2 of 2014 (old CAN 5770 of 2014)
          22-02-2023
                                  CAN 3 of 2019 (old CAN 8329 of 2019)
  sg                                         CAN 4 of 2023
            Ct. 8

                                            Amal Mondal
                                                   Versus
                                           Sankari Mondal & Ors.


                           Mr. Falguni Bandyopadhyay, Adv.
                           Mr. Debabrata Mondal, Adv.
                           Ms. Sreetama Neogi, Adv.
                                                       ...for the appellant

                              In Re: CAN 4 of 2023 and CAN 3 of 2019 (old CAN
                                     8329 of 2019)

                              There is a delay of 110 days in preferring the application

                       for restoration of the appeal.

                              We directed service of copy of the application for

                       condonation of delay upon the respondents. It seems that the

appellant has simply slept over the matter as the conduct of the

appellant would show that he was not interested in the hearing of

the second appeal. Almost 20 years no attempt was made to

move the second appeal until this matter was listed at the

instance of the Court by directing the Registry to list matters

which had remained unattended for long.

The learned Counsel for the appellant has submitted that

in the application for condonation of delay in filing the

application for restoration could not be served upon the

respondent as all the envelopes sent to the respondents/appellants

have been reiterated with the postal remark 'left'. In fact, this

appeal was dismissed for default on 2 nd April, 2019 and the

application for restoration was filed on 31st January, 2023.

We could have dismissed this appeal on other grounds

but since we have decided to hear the matter on merits in order

to find out whether it involves any substantial question of law,

we allow the application for condonation of delay in preferring

the restoration application and the application for restoration of

the appeal.

The appellants states that the delay is of 101 days to

which we do not agree. The computation is erroneous.

In Re: SAT 2037 of 2001 and CAN 2 of 2014 (old CAN 5770 of 2014)

We have heard the learned counsel for the appellant. In a

suit for cancellation of a deed of gift admittedly executed by an

illiterate person was dismissed by the trial court and the said

decision was reversed by the first appellate court. We have

carefully read the judgements of the trial court as well as the first

appellate court.

In reversing the judgment, the first appellate court has

taken into consideration the fact that Netai the donor was an

illiterate person. The LTI in the impugned deed was attested by

the appellant. It further appears from the evidence that Netai was

mentally and physically unfit for the last 12 years prior to the

execution of the impugned deed. The grounds on which the deed

was challenged were misrepresentation of fact and fraud

committed by the appellant in relation to the execution of the

deed. The plaintiffs are the legal heirs of Netai. The plaintiffs

alleged that taking advantage of the illiteracy of their father and

on a representation being made that the said document would be

required to avail loan, his LTI was obtained form the said

document without the knowledge of the legal heirs of Netai.

When the plaintiff was able to establish the illiteracy of Netai

and his physical ailment, the onus to establish that Netai had

executed the said deed with full knowledge and understanding is

upon the appellant. Curiously, the deed written in vernacular

language did not mention that the contents of the deed were read

over and explained to Netai before execution, which ordinarily is

done by the Deed Writer in order to obtain the consent of the

executor with regard to the contents of the document. In other

words, the mind of the executor should carry with the document

which he is supposed to execute. On the teeth of such evidence,

it was incumbent upon the appellant to produce the Deed Writer

or other convincing evidences. It is submitted that the Deed

Writer possibly was unavailable by the time trial commenced.

However, we could not find any reflection of such submission in

the record of the case. There was no evidence to show that the

Deed Writer was unavailable and hence could not be produced.

There was no evidence of any attending witnesses who could

have proved due execution and mental alertness of the donor at

the time of execution of the said deed.

On such consideration, we do not find any reason to

interfere with the order passed by the first appellate court in

reversing the judgment of the trial.

The appeal fails. However, there shall be no order as to

costs.

CAN 2 of 2014 (old CAN 5770 of 2014) is, accordingly,

dismissed.

(Uday Kumar, J.)                             (Soumen Sen, J.)