Smt. Astasakhi Ghosh And Anr vs Sri Narendranath Ghosh And Anr
2023 Latest Caselaw 7226 Cal

                     IN THE HIGH COURT AT CALCUTTA

                        CIVIL APPELLATE JURISDICTION

                                APPELLATE SIDE




PRESENT:
 THE HON'BLE JUSTICE HARISH TANDON
                And
 THE HON'BLE JUSTICE PRASENJIT BISWAS

                                FMA 299 of 2023

                         Smt. Astasakhi Ghosh and Anr.
                                       Vs.
                        Sri Narendranath Ghosh and Anr.


For the appellants                 :    M r. Arunava Pati, Adv.



Judgment on                        :     17.10.2023



Prasenjit Biswas, J:-


    1. The instant appeal has been preferred by the appellant challenging the

impugned judgment and decree passed by the first Appellate Court in connection

with Title Appeal No. 4 of 2019.

    2. By passing the impugned judgment dated 11.08.2022, the first Appellate

Court remanded the case record to the Trial Court to decide the case on the issue

of validity of deed of gift being No. of 1992 after giving opportunity to the parties

to lead evidence.

    3. Being aggrieved by and dissatisfied with the impugned judgment and order

of the first Appellate Court, the instant appeal has been preferred by the

appellants.
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    4. The suit property originally belonged to one Bijoy Chandra Ghosh and

during his old age he was taken care of by the plaintiffs and on being pleased he

executed a deed of gift in favour of the plaintiffs and proforma defendant No. 3 of

the suit to the extent of equal share in suit property. Both the plaintiffs and

proforma defendant No. 3 accepted the gift and got the possession of the suit

property and, subsequently, present Records of Rights have been prepared in

their names. Thereafter, they developed the suit property by constructing

residential building thereon. Dispute s and disturbances have been cropped up

after the death of said Bijoy Chandra Ghosh and his wife and defendants Nos. 1

and 2 started causing disturbance to the peaceful enjoyment of the suit property,

although, they have/ had got no right, title or interest over the suit property as

the same had already been gifted to the plaintiffs and proforma defendant No. 3.

    5. It is stated by the plaintiffs that the deed of gift was genuinely executed by

the executor Bijoy Chandra Ghosh and knowing fully well about the fact, the

defendants with malafide intention started to disturb the possession of the

plaintiffs and finding no other way they knocked the door of the Court for getting

appropriate relief.

    6. The defendants/respondents (herein) entered their appearance in the suit

and contested the same by filing written statement wherein they took specific plea

that the suit property never belonge d to plaintiffs and they are claiming the same

on the strength of a forged deed. They denied the execution of the deed of gift by

Bijoy Chandra Ghosh in favour of the plaintiffs by stating that the said executor

of the deed of gift was never looked after by the plaintiffs and proforma defendant

No. 3.

7. Learned Trial Court after appreciation of evidences on record decreed the

suit in favor of the plaintiffs. Thereafter, the defendants preferred first appeal and

after opportunity of being heard, learned first Appellate Court remanded back the

case to the Trial Court on the issue to decide afresh as to whether the deed of gift

being No. 1603 of 1992 is valid or not after giving opportunity to the parties to

lead evidences. Being aggrieved by the said order these appellants preferred this

instant appeal.

8. It is the specific standpoint of the defendants/present respondents that the

deed of gift was never executed by Bijoy Chandra Ghosh in favour of the plaintiffs

and virtually they have challenged the execution of the deed of gift which was

marked as exhibit 8 in that case.

9. Normally, both the donner and the witnesses are required to be examined

for proving the deed of gift, this is mandatory provision of Section 68 of the Indian

Evidence Act. The material question is whether the respondents have specifically

discharged the duties to prove the execution of the gift deed in terms of the

proviso to Section 68 of the Indian Evidence Act.

10. If a document is required by law to be attested, it shall not be used as

evidence until one attesting witness at least has been called for the purpose of

proving its execution, if there by an attesting witness alive, and subject to the

process of the Court and cannot capable of giving evidence. Provided that it shall

not be necessary to call an attesting witness in prove of the execution of any

document, not being a Will, which has been registered in accordance with the

provisions of the Indian Registration Act, 1908, unless it is executed by the

person by whom, it purports to have been e xecuted is specifically denied. So,

section 68 of the Evidence Act makes it mandatory to examine one of the

attesting witnesses for the purpose of proving of the execution of the gift deed. It

is an undisputable fact that the deed of gift is registered and attested by two

attesting witnesses.

11. Learned Counsel appearing for the respondents strenuously argued that

the gift deed is fabricated and no title was passed by dint of that deed. Moreover,

no attesting witnesses came before the Court to prove the execution of the said

deed of gift as required by the Act. We further find that rights of both the parties

wholly depend upon the deed of gift.

12. The first Appellate Court rightly came to the conclusion that no issue has

been framed by the Trial Court regarding validity of the said deed of gift and no

opportunity was given to the parties to adduce evidence on that score and

accordingly, first Appellate Court rightly remanded back the case to the Trial

Court to decide issue on the point whether deed of gift is valid or not and the

same is to be decided by the Trial Court after giving opportunity to parties to lead

evidence on that count.

13. Accordingly, we find that there is no merit in the instant appeal and

accordingly, the same is dismissed.

14. However, there is no order as to costs.

15. Learned Trial Court is hereby directed to expedite the suit and to conclude

the same preferably within 6 months from this date without giving unnecessary

adjournment to either of the parties unless it is necessitated by any uncalled-for

incident.

I agree.

(Harish Tandon, J.)

(Prasenjit Biswas, J.)