Smt Labanya Das vs Manjula Das And 2 Ors
2025 Latest Caselaw 5805 Gua

Gauhati High Court

Smt Labanya Das vs Manjula Das And 2 Ors on 27 June, 2025

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GAHC010056662025




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                   Case No. : RSA/48/2025

             SMT LABANYA DAS
             W/O UMESH CHANDRA DAS, R/O HOUSE NO 41, PUB SARANIA,
             SANKARDEV PATH, CHANDMARI, GUWAHATI 03, P.S. CHANDMARI, DIST.
             KAMRUP (M), ASSAM.

             VERSUS

             MANJULA DAS AND 2 ORS
             D/O LATE RAJANI KANTA DAS, R/O 16,LACHIT NAGAR, BEHIND B.T.
             COLLEGE, GUWAHATI 07, KAMRUP (M), ASSAM.

             2:UMESH DAS
              DIST. KAMRUP(M)

             3:PRANABJYOTI DAS
              R/O HOUSE NO 41
              PUB SARANIA, SANKARDEV PATH
              CHANDMARI GUWAHATI 3
              P.S. CHANDMARI, DIST. KAMRUP (M), ASSAM

Advocate for the Petitioner   : MR. A IKBAL, MS. J SARMA,MS. M NATH,MR. R BARUAH

Advocate for the Respondent : ,



                                     -BEFORE-
                      Hon'ble Mr. Justice Robin Phukan
                                         ORDER

27.06.2025 Heard Mr. A. Ikbal, learned counsel for the appellant.

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2. This second appeal, under Section 100 of the CPC, is directed against the judgment dated 18.12.2024, passed by the learned Civil Judge (Senior Division) No. 1, Kamrup(M), Guwahati, in Title Appeal No. 52/2019.

3. It is to be noted here that vide impugned judgment dated 18.12.2024, the learned Civil Judge (Senior Division) No. 1, Kamrup(M), Guwahati ('first appellate Court', for short) had upheld and affirmed the judgment and decree dated 27.11.2019, passed by the learned Civil Judge (Junior Division) No. 1, Kamrup(M), Guwahati ('trial Court', for short), in Title Suit No. 540/2009.

4. The background facts, leading to filing of the present appeal, are briefly stated as under:

"The appellant herein as plaintiff instituted a title suit, being Title

Suit No. 540/2009, against Smti. Manjula Das as principal defendant No. 1, Shri Umesh Ch. Das as proforma defendant No. 2 and Shri Pranabjyoti Das as proforma defendant No. 3, for declaration, permanent injunction and cancellation of gift deed No.5062/2009, dated 11.05.2009, registered in the Office of the Sub-Registrar, Kamrup at Guwahati.

The case of the plaintiff/appellant herein is that her son, proforma respondent No.3 herein got married with the principal defendant No.

1/respondent No. 1 herein, Smt. Manjula Das, on November 21st, 1993, and out of the said wedlock one girl, namely, Miss Mrinalini Das was born

on February 16th, 1995. The plaintiff is the owner of 2 kathas of land, covered by Dag No. 1513 of K.P. Patta No. 428 in Sahar Sarania, Part-II, under Ulubari Mouza, in the district of Kamrup(M), Assam, where a three- storeyed RCC building stands. However, the marriage between the proforma defendant No. 2 and principal defendant No. 1 was dissolved by Page No.# 3/11

a mutual divorce decree on December 20th, 2002, and the custody of Smt. Mrinalini Das remained with her mother, principal defendant No.1, who left her matrimonial home in 1996 and has since lived with her family in Lachit Nagar, Guwahati. The principal defendant No. 1 used to visit the plaintiff and expressed a desire to return home and requested her to transfer the second floor of the plaintiff's house to her daughter, in line with Clause 9 of their divorce agreement. The plaintiff was willing to gift the

aforementioned property to her granddaughter and on May 11 th, 2009, the principal defendant No. 1 informed the plaintiff that she had prepared gift deed and insisted that they should go to the Sub-Registrar's Office to execute a gift deed. Thereafter, believing the version of the principal defendant No. 1, the plaintiff and proforma defendant No. 3 signed the deed, believing it was for Mrinalini Das. However, when the plaintiff later requested a copy, she discovered that the gift deed was executed in favour of the principal defendant No. 1. The plaintiff alleged that the principal defendant No. 1 had committed fraud, taking advantage of the plaintiff's emotional attachment to her granddaughter. The plaintiff remained in possession of the property, which had not been handed over to the principal defendant No. 1, due to the alleged fraud, and that the plaintiff is not bound by the mutual divorce petition between her son, proforma defendant No.3 and daughter-in-law, principal defendant No.1 as she was not a party to it. The plaintiff alleged that the principal defendant No. 1 had committed fraud by having a gift deed executed in her favour instead of her daughter, Smt. Mrinalini Das.

Thereafter, being aggrieved, the plaintiff preferred the title suit for declaration that gift deed No. 5062/2009, null and void.

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The defendants contested the suit by filing written statements. The proforma defendant No. 2/proforma respondent No. 2 herein, denied plaintiff's title and ownership of the scheduled property, claiming that she, as a housewife with no income, cannot legally own it, and that the property was purchased from his income using a loan from the Life Insurance Corporation of India and assessed in the plaintiff's name without her having rightful ownership. He also stated that any transfer of the property through gift, sale, lease, or mortgage without his consent is unlawful, and that the principal defendant No. 1 is a well-paid school teacher and does not need financial assistance, and that the deed of gift prepared by the principal defendant No. 1 is invalid, as it lacks any mention of acceptance and should be cancelled.

On the other hand, though the proforma defendant No. 3/proforma respondent No. 3 herein admitted the plaintiff's claims, he denied plaintiff's ownership of the property, stating that proforma defendant No. 2 is the legal owner and that the plaintiff lacks the means to procure it. However, he supported the plaintiff's case.

The principal defendant No. 1 also contested the suit by filing a written statement, stating that there is no valid cause of action and that the suit is not maintainable due to reasons outlined in the Specific Relief Act and due to doctrines of waiver and estoppels. She stated that after marrying the proforma defendant No. 3 i.e. the son of the plaintiff, she discovered that he was an alcoholic, without a steady income and her in- laws had arranged the marriage hoping he would change, but instead, his abusive behaviour worsened, even after the birth of their daughter on

February 16th, 1995, and instead of supporting her, her in-laws mistreated Page No.# 5/11

her, leading to her being taken to her parental home on March 4 th, 1996. The principal defendant No. 1 had acknowledged that they obtained a

mutual divorce on December 20th, 2002, but claimed that her ex-husband and in-laws failed to provide any financial support afterwards, and as a result, she took a teaching position at Navodaya Vidyalaya in Morigaon. She also stated that there was no reason to visit her ex-in-laws since there had been no contact with them, except for her mother-in-law, who occasionally visited on her granddaughter's birthday, and in 2008, the plaintiff expressed regret about the divorce and proposed gifting part of her property for her granddaughter's education, and after discussions, it was agreed that the second floor of the plaintiff's building at Pub Sarania, would be gifted to Mrinalini Das, with the principal defendant No. 1 acting as her guardian until she reaches adulthood, and the gift deed was prepared by the plaintiff's Advocate. As she was working in Morigaon, the principal defendant No. 1 was asked to come to Guwahati for the execution and she attended the Sub-Registrar's Office in Kamrup, accompanied by relatives, while the plaintiff was present with her son and an Advocate, and the gift deed was executed in front of an official, with the plaintiff's son serving as a witness and identifying both the parties. The principal defendant No. 1 stated that she only reviewed the gift deed at the Sub-Registrar's Office and found no terms of the deed would negatively impact her or her minor child, which led her to sign it, and prior to signing, the official confirmed that they understood the contents and were signing willingly, to which the plaintiff affirmed that there was no pressure. The principal defendant No. 1 also claimed that the plaintiff's assertion of possession of the property was false, as it was rented out and Page No.# 6/11

the defendant had collected the rent. After the plaintiff's daughter learnt about the gift deed, she pressured the plaintiff to cancel it, which the principal defendant No. 1 agreed, and thereafter, the title suit was instituted.

Upon pleadings of the parties, the learned trial Court had framed as many as four issues, which read as under:

(1) Whether the suit is maintainable on facts? (2) Whether the main defendant got the disputed gift deed executed by practicing fraud?

(3) Whether the gift deed is liable to be cancelled? (4) Whether the plaintiff is entitled to the relief(s) as prayed for?

Thereafter, hearing both the parties, the learned trial Court was pleased to dismiss the suit.

Being aggrieved, the plaintiff preferred an appeal, being Title Appeal No. 52/2019, before the learned first appellate Court, and thereafter, hearing both the parties, the learned first appellate Court, vide impugned judgment dated 18.12.2024, was pleased to dismiss the appeal and thereby, affirmed the judgment and decree dated 27.11.2019, passed by the learned trial Court."

5. Mr. Ikbal, learned counsel for the appellant submits that this second appeal is preferred under Section 100 of the CPC, suggesting the following substantial questions of law:

1. Whether the learned Courts below were legally justified in not revoking/cancelling the Gift Deed as it was apparent from the materials available on record that the conditions Page No.# 7/11

of the Gift Deed were not fulfilled?

2. Whether, the Gift Deed bearing No. 5062/2009 can be held to be valid without the Gift Deed being proved under Section 67 of the Bharatiya Sakshya Adhiniyam, 2023, (formerly Section 68 of the Indian Evidence Act, 1872) and without examining any attesting witnesses?

3. Whether, fraud and influence having been established to the hilt, and the learned Courts below having failed to consider the same in its judicial propriety and as per provisions of the Bharatiya Sakshya Adhiniyam, 2023, (formerly Indian Evidence Act, 1872) while deciding the Issue Nos. 2 and 3?

4. Whether, the findings arrived at by the learned Courts below in respect of Issue Nos. 2 and 3 is perverse and contrary to provisions of Law, particularly the Bharatiya Sakshya Adhiniyam, 2023, (formerly Indian Evidence Act, 1872) holding the field and due to non consideration of the pleadings, evidence, materials and documents available on record?

5.1. Mr. Ikbal also submits that the learned Courts below, without examining any of the witnesses of the gift deed and with the conditions being satisfied, arrived at the finding that the gift deed is proved. Mr. Ikbal further submits that Section 68 of the Indian Evidence Act, 1872, provides for proof of execution of document required by law to be attested, and 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 be an attesting witness alive, and subject to the process of the Court and capable of giving evidence, and the proviso to the said Section provides that it shall not be necessary to call an attesting witness in proof 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 its execution by the Page No.# 8/11

person by whom it purports to have been executed is specifically denied. Mr. Ikbal submits that both the Courts below had failed to take note of the aforementioned requirement and that the substantial questions of law, as suggested by him, are involved herein, and the appeal is required to be admitted and to be heard on merit.

6. Having heard the submission of Mr. Ikbal, learned counsel for the appellant, I have carefully gone through the memo of appeal, and the plaint of Title Suit No. 540/2009, annexed with the memo of appeal as Annexure-I; the written statements filed by the principal defendant No. 1 and proforma defendant Nos. 2 and 3; and also perused the judgment and decree dated 27.11.2019, passed by the learned trial Court, in Title Suit No. 540/2009, and the impugned judgment dated 18.12.2024, passed by the learned first appellate Court, in Title Appeal No. 52/2019.

7. The basic facts here in this case are not in dispute. The principal defendant No. 1/respondent No. 1 herein, is the daughter-in-law of the plaintiff/appellant herein, and the principal defendant No. 1 got married with the proforma defendant No. 3/proforma respondent No. 3 herein, and on account of the proforma defendant No. 3, being an alcoholic and ill treating the principal defendant No. 1, even after birth of their daughter Mrinalini Das on 16.02.1995, marital discord surfaced between them and ultimately, the marital tie came to be snapped by a decree of mutual divorce on 20.12.2002. It also appears that after the divorce, the principal defendant No. 1 used to reside in her parental abode at Lachit Nagar, Guwahati, and also she undertook a job of Teacher in Navodaya Vidyalaya in Morigaon and she used to reside there.

8. Further, it appears that the plaintiff occasionally visited the principal defendant No. 1 on the birthday of her grand-daughter, Smt. Mrinalini Das and Page No.# 9/11

in the year 2008, the plaintiff expressed her willingness to gift a part of her property i.e. second floor of her house, situated at Pub Sarania to Mrinalini Das with the principal defendant No. 1 acting as her guardian until she reached adulthood, and the said gift deed was prepared by the advocate of the plaintiff.

9. It also appears that having born on 16.02.1995, on the date of execution of gift deed on 11.05.2009, said Mrinalini Das was a minor and as such, no valid deed could be executed in her favour, and it is the categorical contention of the principal defendant No. 1 that being the guardian and mother of Mrinalini Das, the deed was executed in her name.

10. Further, it appears that there is a concurrent finding of fact by the learned trial Court as well as first appellate Court in respect of the four issues, so framed by the learned trial Court, and the learned trial Court on the basis of evidence adduced by the parties, and hearing learned Advocates of both sides, arrived at a categorical finding that no fraud was practised by the principal defendant No. 1 in execution of the disputed gift deed by the plaintiff.

11. The learned trial Court also referred to Section 17 of the Indian Contract Act and Sections 91 and 92 of the Indian Evidence Act, while arriving at the finding that no fraud was practised by the principal defendant No. 1 in execution of the gift deed.

12. The trial Court also discussed Section 123 of the Transfer of Property Act and held that delivery of possession is not prescribed therein, and what prescribed is the execution of registered document.

13. The learned first appellate Court also, after detailed discussion of the issues, framed by the learned trial Court, arrived at the finding that Section 68 of the Indian Evidence Act will not be applicable here, as both the parties have Page No.# 10/11

acknowledged the execution of the gift deed in their respective pleadings, and thereafter, held that it is well established principle in the law of evidence that admitted facts do not require further proof, and in view of Section 89 of the Indian Evidence Act, the Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped, and executed in the manner required by law.

14. The finding of the learned trial Court as well as first appellate Court is being challenged in this appeal suggesting the substantial question of law that the learned Courts below have failed to consider that fraud and influence having been established to the hilt, and the learned Courts below have failed to consider the same in deciding the issue Nos. 2 and 3.

15. As discussed herein above, the execution of the gift deed is not in dispute and the signatures have also not been disputed. Though, Mr. Ikbal, learned counsel for the appellant submits that execution of the gift deed has not been proved by examining the attesting witnesses, yet in view of the provision of Section 68 of the Indian Evidence Act, it shall not be necessary to call an attesting witness in proof 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 its execution by the person by whom it purports to have been executed is specifically denied.

16. Since the plaintiff/appellant herein has not denied gift deed, rather admitted it, the question of calling the attesting witnesses does not arise. It is well settled principle that admitted fact need not be proved.

17. From the materials placed on record, and also from the argument advanced by Mr. Ikbal, learned counsel for the appellant, this Court is unable to Page No.# 11/11

arrive at a finding that the gift deed, bearing No. 5062/2009, was executed by practising fraud.

18. In the result, I find that the suggested substantial questions of law are not involved in this appeal. There is concurrent finding of facts by both the learned Courts below and unless there is any substantial question of law within the meaning of Section 100 CPC, this Court cannot admit the appeal and accordingly, the same stands dismissed.

JUDGE

Comparing Assistant