Shrimati Sarathi Samanta @ ... vs Manoranjan Samanta
2023 Latest Caselaw 6124 Cal

                                         1


                     IN THE HIGH COURT AT CALCUTTA

                         (Civil Appellate Jurisdiction)

                              APPELLATE SIDE

Present:

The Hon'ble Justice Supratim Bhattacharya

                                   S.A. 14 of 2015

              Shrimati Sarathi Samanta @ Sarathi Rani Samanta

                                        -Vs

                            Manoranjan Samanta



For the Appellant              :       Mr. Rabindra Nath Mahato.

                                       Mr. Aritra Shankar Ray



For the Respondent (in-person) :       Mr. Krishna Das Poddar

Mr. Sujit Bhunia

Heard On : 12.09.2023

Judgement Delivered On : 13.09.2023

Supratim Bhattacharya, J.:

1. The instant appeal has been preferred by the appellant/defendant

being aggrieved by and dissatisfied with the Judgment and decree

passed in Title Appeal No. 73 of 2009 dated 27.06.2014 by the Ld.

Additional District Judge-cum-Special Judge(under EC ACT), Paschim

Midnapore.

2. Through the said Judgement the First Appellate Court has been

pleased to allow the said appeal on contest by setting aside the

judgement and decree passed by the Ld. Civil Judge Junior Division

3rd Court Paschim Midnapore in the Title Suit No. 88 of 1999.

3. The appellant in the instant appeal was the defendant in the Title Suit

and the respondent in the First Appeal, while the respondent in the

instant appeal was the plaintiff in the Title Suit and the appellant in

the First Appeal.

4. Through the impugned Judgment the First Appellate Court has been

pleased to grant title and possession in respect of the 'Ka' schedule

property of the plaint and thereby restrained the respondent from

disturbing the title and possession. Through the impugned judgment

the appellate court also granted a decree of declaration to the effect

that the deed of gift as mentioned in the 'Ka' schedule of the plaint is

void, ineffective and illegal.

5. At the time of the admission of the instant second appeal the following

substantial question of law has been framed:

I) Whether the Ld. Appellate Court fell into a grievous error of

law in holding that the deed of gift in this case is void ab

initio ?

6. The Ld. Counsel appearing on behalf of the appellant has submitted

the following:

i) The respondent in the instant appeal filed the Title Suit

against the appellant praying for declaration in respect of his

title and possession over 84 decimals of land in plot No.577

under Mouja Naraharipur, JL No. 96 Police Station-Debra

along with a declaration that the deed of gift being No. 1479

for the year 1992 is illegal, void, ineffective and not binding

upon him.

ii) The Ld. Counsel has further submitted that the respondent

married the appellant during the lifetime of his first wife. He

has further submitted that the respondent/husband

executed the deed of gift out of natural love and affection, in

favour of the appellant for her future maintenance, which

was presented for registration.

iii) The Ld. Counsel has further submitted that subsequently at

the instance of the appellant the property in question has

been recorded in her name in the record of rights.

iv) The Ld. Counsel has further submitted that the First

Appellate Court has erroneously travelled beyond the scope

of the pleading of the parties and has erroneously applied

different provisions of the Indian Contract Act, 1872 without

considering the fact that a deed of gift is not a contract

instead as per Section 122 of the Transfer of Property Act,

1882 a gift is a transfer made voluntarily and without

consideration.

v) The Ld. Counsel has also submitted that the Trial Court and

the First Appellate Court have come to the concurrent

finding that the respondent was mentally alert at the time of

the execution of the deed of gift and the said deed of gift has

not been challenged.

vi) The Ld. Counsel has further submitted that it is settled law

that the Hon'ble High Court will not interfere with the

concurrent findings with the courts below unless

a) the Courts below have ignored the material evidence or

acted on no evidence, or

b) the Courts have drawn wrong inferences from proved fact,

by applying the law erroneously, or

c) the courts have wrongly cast the burden of proof.

vii) The Ld. Counsel has also submitted that there is concurrent

findings of both the Court to the effect that the respondent

was mentally alert at the time of execution of the deed of gift

and further considering that the appellant has accepted the

deed of gift by presenting the same before the registering

authority for its registration and by mutating the land in

question in her name. The judgment passed by the First

Appellate Court is not in accordance with law and is required

to be set aside. The Ld. Counsel has relied upon the

following judgments:

a) (1979) 3 SCC 226, Wherein it has been stated that a deed

of gift should be made voluntarily and without

consideration.

b) (2003) 11 SCC 303

c) 2013 SCCOnline Calcutta 22868.

d) (2014) 2 CHN 27 wherein the following proposition of law

that a Court cannot make out a third case and travel

beyond the scope of the pleading of the parties.

e) (2020) 19 SCC 57 has been relied upon by the Ld.

Counsel stressing upon the proposition of law that

concurrent finding of both the court cannot interfered

with.

7. The Ld. Counsel appearing on behalf of the respondent has submitted

the following:

i) The respondent at the time of making of the alleged Will was

mentally unfit as the said person is a person of mental

imbalance.

ii) The Ld. Counsel has further submitted that the respondent is a

mental patient and cannot decide what is right and what is

wrong for him.

iii) Ld. Counsel has further submitted that the respondent never

ever intended to gift his property to the appellant. The Ld.

Counsel has relied upon the judgment published in AIR 1993

CAL 144 stating that fact based on no evidence but being on

assumption or surmise and conjecture cannot be allowed to go

unremedied if it leads to denial of justice.

iv) Ld. Counsel has further relied upon the judgment reported in

(2019) 13 SCC 70 and (2019) 10 SCC 259 stressing upon the

point that record of right does not create the title. He has

further relied upon the Judgment reported in AIR 2010 Bombay

122 stressing upon the point that a lady not being legally

wedded wife cannot claim maintenance. Banking upon the facts

and circumstances the Ld. Counsel has prayed for dismissal of

the instant appeal.

8. The crux of the issue is that as to whether the deed of gift executed

by the respondent herein dated 25.2.1992 in favour of the appellant is

at all valid or not.

9. The First Appellate Court has come to the finding that the gift in

issue is not in accordance with law as the provisions of the Indian

Contract Act have not been complied at the time of execution of the

said deed of gift. The First Appellate Court has taken into

consideration Section 2(a) of the Indian Contract Act, 1872 and has

stated that the husband donor made a proposal by signifying his

willingness to transfer his property to the second wife and as soon as

the proposal has been accepted by the second wife it became a

promise. The Ld. First Appellate Court has also discussed about

Section 25 (2) of the Indian Contract Act. The Ld. Judge has also

taken into consideration Sections 11 and Section 12 of the Indian

Contract Act. Section 11 of the Contract Act states that the husband

should be of sound mind at the time of transferring the suit property

while Section 12 states that the donor must have been capable of

understanding the Contract and of forming a rational judgment as to

its effect upon his interest. In this regard this Court is of the view that

gift of a property takes place inter vivos and for the purpose of gift

there is no consideration at all. Gift takes place only and solely out of

natural love and affection. In the case of a contract between two

persons there shall have to be a consideration. Consideration is one of

the essential criteria of a contract. In case of a gift there being no

consideration involved so gift does not fall within the purview of the

Indian Contract Act. As such the discussion of the First Appellate

Court cannot be accepted. Thus, the inference drawn by the First

Appellate Court is hard to subsist.

10. The fact of the instant lis is that during the year 1979 Monoranjan

Samanta the respondent fell mentally ill and had been treated by

doctor and the said Monoranjan Samanta became mentally fit during

the year 1981 and he first married during the year 1982 and one

daughter and one son has been born as a result of the said marriage.

It has also been alleged that during the last part of the year 1987 the

said Monoranjan Samanta once again fell mentally ill and he had to

be treated by Dr. S.P. Mukherjee and after long treatment he

recovered in the year 1995. It is very much important to take note

that only a single prescription dated 27.2.1989 has been exhibited by

the said Monoranjan Samanta and in the said prescription the word

"Fit" is mentioned. Though not being a medical professional one can

presume that the word "Fit" signifies that the said Monoranjan

Samanta had recovered from his mental illness on and from

27.2.1989. It has been alleged that Sarathairani Samanta by

prevailing upon the employees of the marriage registration office had

registered the marriage between Monoranjan Samanta and

Sarathairani Samanta on 22.11.1988.

11. Registration of a marriage requires the presence of the bride and

the bridegroom along with two to three persons who are known to the

bride or the bridegroom before the marriage registrar. It is hard to

believe that all these things have been manipulated by the bride. Had

that been so that the said Sarathairani Samanta had mislead the

marriage registrar and the employees of the said office then the said

Monoranjan Samanta had the opportunity to take legal steps praying

for cancellation of the said marriage but the said Monoranjan

Samanta did not take any such step.

12. Later on after a gap of four years from marriage that is in the year

1992, these two contending parties filed a petition praying for mutual

divorce and ultimately the said mutual divorce took place on

10.06.1993 in the Court of the Ld. District Judge at Midnapore and

that too in the sole presence of the said Monoranjan Samanta. The

certified copy of the dissolution of marriage under Section 13B of the

Hindu Marriage Act has been exhibited on behalf of the said

Sarathairani Samanta. It is also fact that the said Monoranjan

Samanta and Sarathairani Samanta resided together since their

marriage. These facts prove that both Monoranjan Samanta and

Sarathairani Samanta led a marital life, without going into the aspect

of the legality of their marriage.

13. The impugned deed of gift is dated 26.2.1992 as such the

contention on behalf of the said Monoranjan Samanta that he was not

mentally fit at the time of execution and registration of the said deed

of gift cannot at all be accepted.

14. On behalf of the respondent a point has been raised, that the deed

of gift in question is required to be accepted but in the instant case

the same has not been accepted by the donee. In this regard this

Court places the definition of the word 'gift' as laid down in Section

122 of the Transfer of Property Act which states as follows:

"122. "Gift" defined.--"Gift" is the transfer of certain

existing moveable or immoveable property made

voluntarily and without consideration, by one person,

called the donor, to another, called the donee, and

accepted by or on behalf of the donee."

As regards to acceptance, this Court refers to Paragraphs 18 and 26

of the Judgment passed by the Hon'ble Apex Court reported in (2021)

3 SCC 459 which reads as follows:

"18. .......

Acceptance when to be made.--Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.

If the donee dies before acceptance, the gift is void.

26. Hence, being an act of receiving willingly, acceptance can be inferred by the implied conduct of the donee. The aforesaid position has been reiterated by this Court in Asokan v. Lakshmikutty [Asokan v. Lakshmikutty, (2007) 13 SCC 210] : (SCC pp. 215-16, para 14)

"14. Gifts do not contemplate payment of any consideration or compensation. It is, however, beyond any doubt or dispute that in order to constitute a valid gift acceptance thereof is essential. We must, however, notice that the Transfer of Property Act does not prescribe any particular mode of acceptance. It is the circumstances attending to the transaction which may be relevant for determining the question. There may be various means to prove acceptance of a gift. The document may be handed over to a donee, which in a given situation may also amount to a valid acceptance. The fact that possession had been given to the donee also raises a presumption of acceptance."

In this instant case one of the Exhibited documents is a record of

right in respect of the property which is the subject matter of the deed

of gift. In the said exhibited record of right the name of Sarathi

Samanta transpires.

One of the essential elements of gift is that the gift must be accepted

by transferee. Gift must be accepted by the donee. Property cannot be

given to a person even in gift against his (her) consent. The donee may

refuse the gift, for example when it is a non-beneficial property or,

onerous gift. The donee may refuse the offer of gift of such properties.

Acceptance of the gift is, therefore, necessary. Such acceptance may

either be express or implied. The acceptance is implied if it inferred

from the conduct of the donee and the surrounding circumstances.

In this instant case it is apparent that the name of Sarathi Samanta

appears in the record of right in respect of the property gifted through

the deed of gift which is also mentioned in the schedule of the plaint.

Thus, in this instant case, from the aforementioned act it is crystal

clear that the donee has accepted the gift.

15. Thus, from the aforesaid discussion it is clear that there was

marriage between these two contending parties and mutual divorce

have also taken place and it is also apparent that whether it be out of

actual natural love and affection or not there has been a gift. It is very

hard to believe the contention of the respondent that all these things

have been done without his consent and he being not mentally fit.

16. Thus, this Court finds sufficient reason to interfere with the

Judgment passed by the Ld. First Appellate Court. The Instant appeal

being SA No. 14 of 2015 is allowed and thereby setting aside the

judgment passed by the Ld. First Appellate Court in the Title appeal

No. 73 of 2009 and affirming the Judgment passed by the Ld. Civil

Judge Junior Division 3rd Court Midnapore in Title Suit No. 88 of

1999. The application being CAN 10867 of 2014 is also disposed of.

Parties shall be entitled to act on the basis of the server copy of the

judgment and order placed on the official website of the Court.

Urgent Xerox certified photo copies of this judgment, if applied for, be

given to the parties upon compliance of the requisite formalities.

(Supratim Bhattacharya, J.)