Shri Mouna Brata Sarkar vs Shri Subrata Sarkar
2021 Latest Caselaw 529 Tri

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                        HIGH COURT OF TRIPURA
                              AGARTALA
                            RFA NO.18 OF 2018

   1. Shri Mouna Brata Sarkar,
   Son of Late Chitta Ranjan Sarkar,

   2. Smt. Maya Deb(Sarkar),
   Wife of Sri Mouna Brata Sarkar

   -Both residents of village: Madhyapara
   (formerly known as Basar Mia‟s Colony),
   PS & PO: Belonia, District: South Tripura, Tripura.

                                                   ....Defendant-appellants
                                      Versus

   1. Shri Subrata Sarkar,
   Son of late Chitta Ranjan Sarkar,
   Resident of village: Madhyapara
   (formerly known as Basar Mia‟s Colony)
   P.S & P.O; Belonia, District: South Tripura, Tripura.

                                                ----- Plaintiff Respondent(s)

For the Appellant(s) : Mr. D.K. Daschoudhury, Advocate. For the Respondent(s) : Mr. S. Bhattacharjee, Advocate.

Date of hearing              : 02.03.2021
Date of delivery of
Judgment & Order             : 20.04.2021.

Whether fit for reporting    : YES.


          HON'BLE MR. JUSTICE ARINDAM LODH
                   JUDGMENT & ORDER

Shri Mouna Brata Sarkar and his wife Smt. Maya Deb

(Sarkar) have presented this first appeal under Section 96 of the

Code of Civil Procedure against the judgment dated 30.07.2018 and

decree dated 08.08.2018 passed by the learned Civil Judge (Senior

Division), Belonia, South Tripura in connection with T.S. 01 of 2015.

2. The factual panorama involved in this case, in a nutshell,

may be stated hereunder:-

2.1. The plaintiff-respondent, Shri Subrata Sarkar (here-in-after

referred to as plaintiff) instituted the suit for declaration of title and

recovery of possession of the suit land from the defendant-

appellants (here-in-after referred to as defendants). It is the pleaded

case of the plaintiff that he purchased the entire „A‟ schedule land

including the suit land under schedule „B‟ of the plaint measuring 3

gandas 3 kara in the name of his mother Arati Sarkar. The

defendant Nos.1 and 2 are the brother and sister-in-law (brother‟s

wife) of the plaintiff. The plaintiff constructed huts and kitchen over

the land under the schedule. The plaintiff also constructed single

storey building consisting of two rooms. Defendant No.1 requested

him to accommodate him with his spouse in that building. The

defendant No.1 also purchased a plot of land from one Kanti Lal

Dasgupta to make their own home. But, they were in no mood to

shift their place of residence. The mother of the plaintiff had

transferred the land under the schedule by dint of a gift deed dated

09.07.2012. The mother was not satisfied with the activities and

behaviour of the defendants and expressed that if the defendants

are allowed to stay in the same house along with her, then, she

would die of mental depression. The plaintiff requested the

defendants to shift their place of residence, but they denied. The

plaintiff issued a notice upon them to vacate the rooms under their

possession. But, they neither vacated nor replied to the notice. The

defendants never spent a coin for the benefit of their mother. The

defendants have been occupying three rooms forcibly. Since they

denied to vacate the building and the rooms therein, the cause of

action of filing the instant suit arose. It has further been pleaded

that defendant No.2 being in service in the administrative

department of the Government of Tripura had made a mischievous

attempt to prevent the plaintiff from recording his name as „raiyat‟ in

the record of right in a mutation proceeding. To substantiate his

claim, the plaintiff has adduced the following documents:-

1) the original sale deed bearing No.1-635 for the year 1988;

2) gift deed bearing number 1-842 for the year 2012 executed by his mother;

3) certified copy of mutation proceeding;

4) certified copy of the finally published khatian in the name of the mother of the plaintiff.

2.2. On being summoned, the defendants appeared and

contested the suit by filing written statement stating that the suit is

barred by limitation and the suit land was jointly purchased by the

plaintiff and the defendant No.1 in the name of their mother and

constructed the house thereon. The defendants have asserted that

taking advantage of simplicity and innocence of an old woman, the

plaintiff managed to obtain the gift-deed for his wrongful gain. The

said gift deed was nothing but a mere paper transaction.

2.3 Based on the aforesaid pleadings, the learned Trial Court

framed the following issues:-

"i) Whether the suit is maintainable in its present form and nature?

ii) Whether the plaintiff has right, title and interest over the suit land?

iii) Whether the delivery of suit property was necessary upon the gift deed being made?

iv) Whether the plaintiff is entitled to get recovery of khas possession of the suit land?

v) Whether the plaintiff is entitled to get any other relief or reliefs?"

2.4. After framing of issues, evidences were recorded

by the respective parties. Having heard the learned counsels

and on consideration of the documents, the learned Trial Judge

decreed the suit in favour of the plaintiff asking the defendants

to deliver possession in favour of the plaintiff as he is entitled

to get recovery of khas possession of the suit property from

the defendants. It is further held by the learned Trial Court that

the gift deed has been duly executed and the plaintiff is

entitled to the delivery of the suit property by virtue of the gift

deed. It is further held that the plaintiff has been able to

establish his title over the suit land.

3. Feeling aggrieved and dissatisfied with the judgment

and decree passed by the learned Civil Judge, Senior Division,

the defendants have preferred the present first appeal.

4. I have heard Mr. D.K. Daschoudhry, learned counsel

appearing on behalf of the appellants as well as Mr. S.

Bhattacharjee, learned counsel appearing on behalf of the

plaintiff-respondent.

5. Mr. Daschoudhary, learned counsel appearing for the

appellants had attacked the judgment and decree passed by

the learned Trial Court mainly on the ground that the learned

Trial Judge had failed to appreciate the term „consideration‟.

Referring to Section 2(d) of the Contract Act, Mr.

Daschoudhury, learned counsel argued that a gift had to be

made without any „consideration‟. According to Mr.

Daschoudhury, learned counsel, the term „consideration‟ has to

be emanated from the recitals of deed itself. It does not always

mean that „consideration‟ means monetary transaction.

According to learned counsel, the gift deed itself proves that it

was executed on consideration that since the plaintiff

purchased the suit land on payment of consideration money

from his own source of income, and the promise being made by

the mother to return the suit property, she had gifted the same

in favour of the plaintiff. Learned counsel would contend that

since the gift deed had been transacted out of that promise

constituting the basis of „consideration‟, the said gift deed

suffered from illegality and void ab initio and for that reason, it

could not confer any title upon the plaintiff. As such, since the

suit of the plaintiff was based on title and title had not been

proved, he could not ask for declaration of title on the basis of

such void gift deed and claim recovery of khas possession,

evicting the defendants from the suit property.

6. At the same time, Mr. Daschoudhry, learned counsel

has submitted that the suit land was purchased both by the

plaintiff and the defendant No.1 in the name of their mother

and lion share of the „consideration‟ money was paid by

defendant No.1. It was further argued that taking advantage of

the old age of their mother, the plaintiff somehow had

managed to obtain the gift deed, executed by their mother.

7. On the other hand, Mr. S. Bhattacharjee, learned

counsel appearing for the plaintiff-respondent would contend

that the interpretation made by the learned counsel for the

appellants in regard to the term of „consideration‟ was not

correct proposition of law and was liable to be rejected. The

plaintiff had been able to prove the gift deed. Mr.

Bhattacharjee, learned counsel for the plaintiff defended the

judgment and decree as passed by the learned Civil Judge,

Senior Division.

8. In view of the submission of the learned counsel for

the appellants, I have looked for the definition of the term

„consideration‟ as contemplated under Section 2(d) of the

Contract Act, 1872, which reads as under:-

" 2.(d) When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise."

9. The term „promisor‟ and „promisee‟ are defined under

Section 2(c) of the Contract Act, 1872 as under:-

"2.(c) The person making the proposal is called the "promisor", and the person accepting the proposal is called the "promisee";

In other words, when the proposal is accepted, the

person making the proposal is called as „promisor‟ and the

person accepting the proposal is „promisee‟.

10. From the aforesaid definition, the learned counsel for

the appellants tried to persuade this Court that at the desire of

the plaintiff, his mother Arati Bala Sarkar had agreed to

purchase the suit land in her name, though „consideration‟

money would be paid by the plaintiff. However, simultaneously,

the mother promised to return the said purchased suit land in

favour of the plaintiff subsequently or as and when the plaintiff

would raise his demand to return the said purchased land in

favour of him. Thus, being a proposal maker, the plaintiff

became „promisor‟ and the mother Arati Bala Sarkar being

executed his proposal, became „promisee‟. Further, the

agreement to return the purchased land as and when it would

be demanded by the plaintiff was nothing but a „consideration‟

and out of that „consideration‟, the mother Arati Bala Das

executed the gift deed in favour of the plaintiff.

11. Now, proceeding to decide the merits of the

submission as addressed by learned counsel for the appellants,

it would be relevant to keep in mind the settled proposition as

defined under Section 122 of the Transfer of Property Act that

it is the essence of a gift that it should be without

„consideration‟ of the nature as envisaged in Section 2(d) of the

Contract Act. It leads me to give a bird‟s eye view to the deed

of gift (Exbt-1). There is no dispute regarding the valid

execution and registration of the gift deed. The only question

raised by the learned counsel of the appellants is that the gift

deed was transacted on the basis of the promise made by the

mother of the plaintiff that it would be returned to the plaintiff

as and when such demand would be raised, and on the basis of

that promise, the mother, Smt. Arati Bala Sarkar transferred

the suit land to the plaintiff by way of gift.

12. In my opinion, it should be the normal rule of

interpretation that the contents of a deed or document have to

be read and construed in the language as encrypted in the said

deed or document itself and the Courts shall not be guided or

influenced by any superfluous imagination. As such, from the

recitals of the gift deed, I am to evaluate the only point of

controversy as agitated before me as to whether the gift of the

suit land which was made on account of mutual love and

affection, could be said to be transferred on „consideration‟ out

of her promise made in past to return the suit property as and

when demand would be raised by the plaintiff.

(emphasis supplied)

13. Section 5 of the Transfer of Property Act defines

"transfer of property" to mean an act by which a living person

conveys property, in present or in future, inter alia, to one or

more other living persons. Such transfer of property may be

made by one of the several modes known to law, e.g. by sale,

exchange or gift, etc.

14. Section 122 of the Transfer of Property Act defines the

"gift" as under:-

" „Gift‟ is the transfer of certain existing movable or immovable 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.

It is therefore one of the essential requirements of gift that it should be made by the donor "without consideration". The word "consideration" has not been defined in the Transfer of Property Act, but we have no doubt that it has been used in that Act in the same sense as in the Indian Contract Act and excludes natural love and affection."

15. Meaning and definition of the word, „consideration‟ is

available in Black‟s Law dictionary where it defines thus:-

"The inducement to a contract. The cause, motive, price, or impelling influence which induces a contracting party to enter into a contract. The reason or material cause of a contract. Some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility, given, suffered, or undertaken by the other."

16. Black‟s Law Dictionary also defines the words, „good

consideration‟ and „valuable consideration‟ as under:-

"Good Consideration" means „such as is founded on natural duty and affection, or on a strong moral

obligation. A consideration for love and affection entertained by and for one within degree recognized by law. Motives of natural duty, generosity, and prudence come under this class. The term is sometimes used in the sense of a consideration valid in point of law, and it then includes a valuable or sufficient as well as a meritorious consideration. However „generally, good is used in antithesis to valuable consideration (q.v)‟ which has necessarily to be excluded in the case of a gift by virtue of its definition in Section 122 of the Transfer of Property Act."

17. In Currie V. Misa reported in (1875) LR10 Ex 153,

the Court was asked to define what valuable consideration is,

and defined thus:-

" A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by the other".

The definition has been approved and accepted by

their Lordship of Judicial Committee of the Privy Council as the

Appeal of Fleming Vs. Bank of New Zealand L.R.(1900)

A.C. 557 at 586, from the Supreme Court of New Zealand.

A Division Bench of Bombay High Court in

Ramacharya Venkatramanacharya vs Shrinivasacharya,

reported in (1918) 20 BOMLR 441 had relied upon the

meaning of „valuable consideration‟ as defined in

Currie(supra).

18. Reverting to the questioned gift deed, it is recited,

"That my younger son Sri Subrata Sarkar had brought that

aforesaid land from Sri Indu Bhushan Sarkar & others in my

name on the basis of a registered sale-deed no:1-635 dated

14.03.1988 AD last by his own earned money by working as a

typist in the Belonia court & office premises from 1982 AD and

working as a clerk under the advocate Sri Sanjib Datta. Later

when I prayed for mutation of the purchased land in my own

name as it was under my possession by means of that out and

out sale deed,......"

19. In continuity thereof, there is a general description of

the land and the number of sale deed. Thereafter, she recited,

"You, the vendee of the deed is my younger son, I am at my

old stage of life. You the vendee by crossing all sorts of

hindrances from your young age had become self dependent

and you are properly performing your duties by helping your

brothers and sisters and had been taking care of me with much

respect. I am very much happy and satisfied by your respect

for your mother. You have purchased the aforesaid land in my

name by your self-earned money at your sole wish. Thinking

that it is my sole duty to hand over this land to your favour

during my lifetime and in future so that you should not have to

face any problem with your children. I have decided to satisfy

myself by giving that property to your as a token to love from

me. On being written over, I do divest myself from all sorts of

title and possession from ever from the gifted land described in

the schedule....."

20. On plain reading of the above recitals as extracted

here-in-above from the gift deed (Exbt-1), in my opinion, it

cannot be said that on the basis of some valuable

consideration, the donor, Smt. Aarti Bala Sarkar had gifted the

suit property in favour of the plaintiff. It was only out of her

love and affection and considering his old age and on clear

understanding of her moral duty, she transferred the suit land

in favour of the plaintiff by way of gift deed. This

„consideration‟ should not in any way be termed as „valuable

consideration‟ but it should be considered as „good

consideration‟ and „good consideration‟ is not prohibited under

Section 122 of the Transfer of Property Act, for „good

consideration‟ is the antithesis of „valuable consideration‟. In

furtherance thereof, the recitals in the gift deed aptly proves

that it was made by the donor Arati Bala Sarkar in favour of

plaintiff-donee voluntarily and without any valuable

consideration.

21. Further, from a careful reading of the deed of gift, I

find no apparent material to consume that at the desire of the

plaintiff, his mother Arati Bala Sarkar promised to return the

suit land in his favour as and when the plaintiff would raise

demand for such transfer. Even, no such question was put forth

to the plaintiff in regard to this fact. In furtherance thereof,

there is no evidence that the plaintiff had ever demanded the

return of the suit land from his mother, Arati Bala Sarkar to

fulfil her promise as argued by the learned counsel for the

appellants.

22. Lastly, though not seriously argued by the learned

counsel for the appellants about the purchase of the suit land

or the execution and the registration of the gift deed, I have

perused the evidence and materials on record afresh. Sale

deed as well as the gift deed have properly been proved in

accordance with the established procedure of law. The

defendants have failed to plead that any fraud was committed

in execution and registration of the gift deed. There is no

evidence that Arati Bala Sarkar, executed and registered the

gift geed (Exbt-1) under any undue influence or coercion. The

attesting witnesses have confirmed the execution of the gift

deed. There is necessary endorsement, and being satisfied with

the proper execution of the deed, the competent authority,

registered the deed of gift which has been accepted by the

plaintiff being a donee.

23. In view of the above analysis, the elements as

crystallized in the definition of "valuable consideration" ex facie

are found to be absent in the recitals of the gift deed in contra,

the elements of „good consideration‟ predominate the recitals of

the deed executed by the mother of the plaintiff, Arati Bala

Sarkar and for the reasons discussed here-in-above on both

points of law and facts, I find no merit in the appeal, and

accordingly, the appeal stands dismissed. The judgment and

decree of the Trial Court is affirmed and upheld. However, the

parties are to bear their own cost.

JUDGE

suhanjit