Tripura High Court

Sri Gour Gopal Saha (Age 61 Years) vs Smt. Asmita Saha on 31 January, 2025

                 HIGH COURT OF TRIPURA
                       AGARTALA
                   RFA No.14 of 2024

Sri Gour Gopal Saha (Age 61 years)
S/O- Lt. Hari Mohan Saha,
Resident of Badarmokam, Badar Saheb Bari Road,
P.O.- R.K. Pur. P.S.- R.K. Pur, Sub-Division- Udaipur
Pin- 799120, District- Gomati Tripura.
                         .... Defendant No.1 (ii)- Appellant.

                            Versus
1. Smt. Asmita Saha
D/O Sri Nitai Lal Saha
Resident of Vill. Ashrampara
P.O.- Aurangbad, P.S.- Suti
District- Murshidabad, West Bengal,
Pin- 742133.
                                     .......Plaintiff-Respondent.
2. Smt. Manju Roy
W/O Jaharlal Roy
D/O Late Hari Mohan Saha
Resident of North-East Noapara,
P.S.- Noapara, P.O.- Noapara, Barasat
District- 24 Paragana (North), West Bengal
Pin- 700125

3. Smt. Anju Roy
W/O- Utpal Roy
Resident of West Jogendranagar, Kata Shola
(Ram Krishna Road), Near Benimadhab Bidyapity
P.S.- East Agartala, P.O.- Jogendranagar,
Pin- 799004.

4. Smt. Sanjusree Roy
W/O- Jasoda Lal Roy
D/O- Late Hari Mohan Saha
Resident of Milan Chakra,
P.S.- A.D. Nagar, P.O.- A.D. Nagar
(Near Milan Chakra Club, Agartala)
District- West Tripura
Pin- 799003

5. Smt. Ranjusree Roy
W/O- Arindam Bakshi
D/O- Late Hari Mohan Saha
Bakshi Apartment,
(Near Hridaypur Rail Station) Hridaypur,
                          Page 2 of 34




P.O.- Hridaypur, P.S.- Barasat
24 Pargana (North), West Bengal
Pin- 700127

6. Sri Nitai Lal Saha
S/O Late Hari Mohan Saha
Ashrampara,
P.O.- Aurangbad, P.S.- Suti
District- Murshidabad, West Bengal
Pin- 742133

            ........Defendant No.1(iii) to (vii)- Respondents

For Appellant(s)     :    Mr. Suman Bhattacharjee, Adv.
For Respondent(s)    :    Mr. B. N. Majumder, Sr. Adv,
                          Mr. K. Deb, Adv,
                          Mr. E. Debbarma, Adv,
                          Ms. R. Majumder, Adv,
                          Mr. B. Banerjee, Adv.
Date of Hearing      :    27.01.2025
Date of delivery of
Judgment and Order :      31.01.2025
Whether fit for
Reporting            :    YES


          HON'BLE MR. JUSTICE BISWAJIT PALIT

                     Judgment & Order

           This appeal is preferred under Section 96 of CPC

challenging the judgment dated 09.03.2021 and decree dated

15.03.2021 delivered by Learned Civil Judge, Senior Division,

Court No.2, Udaipur, Gomati District in connection with case

No.T.S.38 of 2016.

02.        Heard Learned Counsel, Mr. Suman Bhattacharjee

appearing on behalf of the appellant-defendant No.1(ii) and

also heard Learned Senior Counsel, Mr. B. N. Majumder

assisted by Learned Counsel Mr. K. Deb, Mr. E. Debbarma and

Ms. R. Majumder appearing on behalf of the respondent-
                               Page 3 of 34




plaintiff. Learned Counsel, Mr. B. Banerjee also appeared on

behalf of the respondent-defendant Nos.1(iii)-(vii).

03.         Before proceeding with the merit of the appeal, let

us discuss about the subject matter of the dispute amongst the

rival   parties.   The   respondent-plaintiff   filed   one   suit   for

declaration and recovery of possession of the suit land

measuring 0.084 acres appertaining to Khatian No.1870 under

Mouja- Udaipur as described in the schedule of the plaint

before the Court of Learned Civil Judge (Sr. Div.). The

respondent-plaintiff, being a minor instituted the suit through

her father before the Learned Trial Court Sri Nitai Lal Saha as a

natural guardian and next friend with a prayer for declaration

of title over the suit land, recovery of possession thereof with

further claim for mesne profits against the original defendant

Sikha Rani Saha (since dead). The case of the respondent-

plaintiff was that the original defendant Sikha Rani Saha (since

dead) who was her grandmother was the owner of the

aforesaid suit property. On 17.04.2009 said Sikha Rani Saha

executed a deed of gift in favour of the plaintiff gifting the suit

property in her favour. The gift deed was registered at the

house of the principal defendant on commission. Since the

respondent-plaintiff was on that relevant point of time a minor,

so, the gift was accepted by her father Sri Nitai Lal Saha on her

behalf. After execution of the gift deed, Sikha Rani Saha also

delivered possession of the suit property to the plaintiff which
                            Page 4 of 34




was accepted by her father as her natural guardian. As the plot

of land is attached to the residential plot of the original

defendant, so, it remained under the constructive possession of

the respondent-plaintiff through the original defendant Sikha

Rani Saha as she allowed said Sikha Rani Saha being her

grandmother to utilize the land for the purpose of growing

plants and vegetables. After few months of execution of deed

of gift when the respondent-plaintiff through her father applied

for mutation of the suit land before the Revenue Authority that

time it was denied on the ground that the respondent-plaintiff

did not have possession over the suit land and her appeal

against such order of refusal is pending. It was also the case of

the respondent-plaintiff that said Sikha Rani Saha in collusion

with other near relatives and pressure from daughters started

showing hostile title to the suit property and also started

declaring that the principal defendant did not execute any such

gift deed and the father of the respondent-plaintiff got some

signatures on some stamp papers and by pressurizing her got

the gift deed executed. The original defendant before the

Learned Trial Court contested the suit by filing written

statement denying the assertions of the respondent-plaintiff

and also took the plea that the suit was not maintainable, the

description of the suit property was not proper and it was not

properly stamped. It was further asserted that she never

executed any gift deed in favour of the plaintiff nor she handed
                            Page 5 of 34




over possession of the suit land to the plaintiff.       Further,

according to the principal defendant of the original suit, Nitai

Lal Saha, the father of the respondent-plaintiff is her younger

son and on his invitation she, i.e. the principal defendant and

her husband went to Aurangabad to stay therein for a

considerable period and during that period, Nitai Saha took all

care of his parents for which the defendant gained some

confidence upon her son and taking advantage of the trust,

Nitai Saha deceived and derived all signatures and thumb

impression of Sikha Rani Saha on papers without letting her

know the purpose of those papers. However, on receipt of

notice from the Court of Deputy Collector and Magistrate, she

for the first time came to know that Nitai Lal Saha obtained

one fraudulent deed of gift on the papers taking signature of

his mother Sikha Rani Saha. She also submitted objection

against the prayer for mutation and accordingly, the same was

denied and rejected. She further asserted that the respondent-

plaintiff did not derive any title to the suit land by the alleged

deed of gift and also did not get possession. She filed amended

written statement wherein she asserted that she did not

execute any gift deed voluntarily and she did at the instigation

and pressure of Nitai Lal Saha. It is to be noted here that

during the pendency of the suit, the respondent-plaintiff

attained majority and elected to proceed with the case in her

own name and the sole defendant, Sikha Rani Saha also died
                           Page 6 of 34




and she was substituted by her legal heirs, so, the Learned

Trial Court by order dated 05.12.2018 included the names of

all the legal heirs of said deceased Sikha Rani Saha and

thereafter, as the substituted defendant No.1(i), Sri Harimohan

Saha, being the husband of said Sikha Rani Saha was also

expired, so, his name was also struck off from the record as

per order dated 23.04.2019. However, upon the pleadings of

the parties, Learned Court below framed total five nos. of

issues which are mentioned herein below:

                                         ISSUES

                        i) Whether the suit is maintainable ?
                        ii) Whether the gift deed No. 1-675 dated
                       17.04.2009 is valid or caused to be executed
                       by misrepresentation or otherwise illegally?
                        iii) Whether the plaintiff is the owner of the
                       suit land ?
                       iv) Whether the defendant is the license (sic
                       licensee) of the plaintiff or permissive
                       possessor of plaintiff?
                       v) Whether the plaintiff is entitled to the relief
                       as prayed for including the decree of mesne
                       profit and if so what is its extant and/or any
                       other relief or reliefs in this suit?


04.        To substantiate the issues, both the parties have

adduced oral/documentary evidence on record which are as

follows:

                                  APPENDIX

                           (A) Plaintiff's Witnesses:
                            P.W. 1 :- Sri Nitai Lal Saha;
                            P.W.2 :- Sri Ratan Chakraborty.

                            B) Defendants' Witnesses:

                            D.W.1 :- Smt. Manjusree Roy;
                            D.W.2 :- Smt. Sanjusree Roy;
                            D.W.3 :- Smt. Ranjusree Bakshi.

                            (C) Plaintiffs' Exhibits:

                            Ext. 1 :- Original registered gift deed
                            No.1-675 of 2009;
                           Page 7 of 34




                            Ext. 1/1 series:- Signatures of the
                           original defendant in gift deed as
                           executrix;
                           Ext. 1/2 :- Signature of the P.W. 1 in gift
                           deed as acceptor of gift for minor;
                           Ext. 1/3 series:- Signatures of the P.W. 2
                           in the gift deed as attesting witness;
                           Ext. 2 :- Certified copy order dated
                           12.01.2015 of DCM, Udaipur;
                           Ext. 3 :- Certified copy of order dated
                           30.01.2015 of DCM, Udaipur;
                            Ext. 4 :- Certified copy of order dated
                           10.02.2015 of DCM, Udaipur;
                           Ext. 5 :- Registered Power of Attorney
                           dated 14.06.2018.

                           (D) Defendants' Exhibits: Nil


05.       Finally on conclusion of trial, Learned Trial Court

below decreed the suit in favour of the respondent-plaintiff by

the aforesaid judgment and decree. The operative portion of

the judgment/order is mentioned herein below:

                                         ORDER

37. The suit of the plaintiff is decreed on contest with cost.

38. It is declared that the plaintiff has right, title and interest over the suit land on the basis of the Ext. 1 gift deed. The defendants are accordingly asked to hand over possession of the suit land in favour of the plaintiff within 30 days from the date of decree.

39. Prepare a decree accordingly and place before me for my signature within 15 days from today.

40. The record shall be consigned to the Record Room after due compliance.

06. Challenging that judgment, this present appeal is

preferred. However, at the time of hearing of argument,

Learned Counsel for the appellant first of all drawn the

attention of the Court referring page No.10 of the paper book

and submitted that as per order dated 05.12.2018 of the

Learned Trial Court, all the legal heirs of deceased Sikha Rani

Saha were brought on record as substituted defendants but

surprisingly the substituted defendant No.1(vii), Nitai Lal Saha

as defendant appeared in the case on behalf of the respondent-

plaintiff and filed his written statement admitting the case of

the respondent-plaintiff. So, according to Learned Counsel that

the suit was a collusive one and the suit was not maintainable.

Learned Counsel, Mr. S. Bhattacharjee appearing on behalf of

the appellant further submitted that before the Learned Trial

Court below all along the respondent-plaintiff remained absent.

So, the suit was contested by her father, Nitai Lal Saha who

also has been arrayed as defendant No.1(vii) which was not

permissible in the eye of law. Finally, Learned Counsel drawn

the attention of the Court that Exhibit-1, i.e. the registered gift

deed No.1-675 of 17.04.2009 was marked by the Learned

Court below subject to objection by the contesting defendant

on the ground that the same was not duly executed and

proved in accordance with Section 67 of the Evidence Act.

Learned Counsel, Mr. S. Bhattacharjee further submitted that

since the deed was not proved in accordance with the provision

of Section 67 of the Evidence Act and the author of the same

was not produced, even the deed writer who drafted and

scribed the deed was not tendered for examination by the

respondent-plaintiff for examination before the Learned Trial

Court, so, the deed was not proved in accordance with law and

at the same time the contents of the deed were also not

proved. So, in summing up, Learned Counsel submitted that

the judgment of the Learned Court below suffers from infirmity

as such the same cannot be sustained in the eye of law and

finally urged for allowing this appeal by setting aside the

judgment and decree of the Learned Trial Court. Learned

Counsel, Mr. Bhattacharjee in support of his contention relied

upon one citation of the Hon‟ble Supreme Court of India in

Malay Kumar Ganguly & Anr. vs. Sukumar Mukherjee

(Dr.) and Others dated 07.08.2009 reported in (2009) 9

Supreme Court Cases 221 wherein in para No.37 Hon‟ble the

Apex Court observed as under:

―37. It is true that ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility thereof at a later stage. It is, however, trite that a document becomes inadmissible in evidence unless the author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross-examination in a court of law. The document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken.‖

Referring the same, Learned Counsel submitted that

Exhibit-1 becomes inadmissible in evidence as the author was

not examined and the contents were not proved in accordance

with law by the respondent-plaintiff.

07. On the other hand, Learned Senior Counsel, Mr. B.

N. Majumder assisted by Learned Counsel Mr. K. Deb, Mr. E.

Debbarma and Ms. R. Majumder appearing on behalf of the

respondent-plaintiff first of all drawn the attention of the Court

referring the prayer portion made by the respondent-plaintiff in

the plaint and submitted that in the prayer portion, the

respondent-plaintiff clearly sought reliefs in respect of the suit

filed by her. He also thereafter, drawn para Nos.6, 7, 11, 14,

15 and 16 of the written statement filed by the original

defendant, Smt. Sikha Rani Saha, in the main suit and

submitted that on perusal of the written statement, it is clear

that nowhere the original defendant denied her signatures on

Exhibit-1, i.e. the suit deed. Even, there was no such prayer

from the side of the original defendant for cancellation of the

gift deed, i.e. the suit deed. Thereafter, Learned Counsel

further drawn the attention of the Court referring page No.10

of the paper book wherein it was mentioned that the said

attorney, Nitai Lal Saha, being the father of the respondent-

plaintiff was added as defendant as per order of the Court on

05.12.2018 as defendant No.1(vii), but he submitted his

examination-in-chief in affidavit under Order 18, Rule 4 of CPC

on behalf of the respondent-plaintiff on 09.07.2018 before the

Learned Court below, i.e. prior to the date of inclusion of his

name in the suit as defendant No.1(vii). So, according to

Learned Senior Counsel, the fact asserted by Learned Counsel

for the appellant that the suit was a collusive one is not true,

rather it is a baseless and manufactured allegation. Learned

Senior Counsel in course of hearing, in addition to the above,

further drawn the attention of this Court referring the provision

of Section 3 of the Transfer of Property Act, wherein in the

"interpretation clause" the meaning of "attested" is given.

Learned Counsel, thereafter, referred the provision of Section

122 and 123 of the Transfer of Property Act and submitted that

the gift was lawfully accepted on behalf of the minor by her

father, Sri Nitai Lal Saha as required under Section 122 of

Transfer of Property Act and referring Section 123 of the

Transfer of Property Act, he further drawn the attention of this

Court that the respondent-plaintiff to prove the suit adduced

one attesting witness as required by law to support the case of

the respondent-plaintiff although according to Learned Senior

Counsel the deed was attested by two attesting witnesses, i.e.

Ratan Chakraborty, one of the witness as PW-2 and another

one was Hari Mohan Saha, who was the husband of the original

defendant, Sikha Rani Saha and the contesting defendants in

their written statement or at the time of evidence, nowhere

stated that said Hari Mohan Saha did not stood as attesting

witness at the time of execution of Exhibit-1, i.e. the suit deed.

For the sake of convenience, I would like to refer herein below

the relevant provisions of Section 3, Section 122 and Section

123 of Transfer of Property Act:

Section 3 of Transport of Property Act:

3. Interpretation-clause.--In this Act, unless there is something repugnant in the subject or context,--

―immoveable property‖ does not include standing timber, growing crops or grass: ―instrument‖, means a non-

testamentary instrument:

―attested‖, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some

other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;]

Section 122 of Transport of Property Act:

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.

Acceptance when to be made.--Such acceptance must be made during the lifetime of the donor and while he is till capable of giving, If the donee dies before acceptance, the gift is void.

Section 123 of Transport of Property Act:

123. Transfer how effected.--For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.

Such delivery may be made in the same way as goods sold may be delivered.

Learned Senior Counsel, thereafter, further referred

the provision of Section 68 of the Evidence Act which provides

as under:

Section 68 of the Evidence Act:

68. Proof of execution of document required by law to be attested.--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.

Referring the same, Learned Senior Counsel further

submitted that to prove Exhibit-1, i.e. the suit deed it was the

duty of the respondent-plaintiff to comply with the provision of

Section 68 of the Evidence Act. Accordingly, the respondent-

plaintiff discharged the burden by adducing one Ratan

Chakraborty, who was one of the attesting witness to support

her case and furthermore, according to Learned Senior Counsel

Section 67 of the Evidence Act was not required to prove the

document as alleged by Learned Counsel, Mr. S. Bhattacharjee

for the appellant at the time of hearing of argument. In

support of his contention, Learned Senior Counsel relied upon

one judgment of the Hon‟ble Supreme Court of India in Brij

Raj Singh (dead) by L.R.S. and Ors v. Sewak Ram and

Anr. dated 22.04.1999 reported in (1999) 4 Supreme Court

Cases 331 wherein in para Nos. 17 & 18 the Hon‟ble Apex

Court observed as under:

―17. The High Court, however, has rightly noticed that the gift deed was executed by Kanwar Chander Raj Saran Singh. However, the High Court held that the gift deed has not been duly attested as required under Section 123 of the Transfer of Property Act. The High Court in the course of judgment observed as follows:

‗From a perusal of the gift deed, it is quite evident that this was executed by Kanwar Chander Raj Saran Singh

on 18-1-1961. No one has signed as a witness to the document. The scribe Ram Saran Dass has written ‗dated 18th January, 1961 Bakaiam Ram Saran Dass'. Later on, on 9th of February, 1961, the said document was presented for registration by one Janardhan Sharma who claimed himself to be the Mukhtiar-a-Aam of donor Kanwar Chander Raj Saran Singh. The necessary power of attorney in his favour dated 18th of February, 1953 was also produced before the Sub-Registrar as is evident from his endorsement made on 9th of February, 1961. He was identified before the Sub-Registrar by Ram Saran Dass -- the scribe and one Sobha Ram. According to the learned counsel for the appellant, since Janardhan Sharma, the Mukhtiar-a- Aam of the donor Kanwar Chander Raj Saran Singh admitted the execution of the document before the Sub- Registrar and Ram Saran Dass, the scribe and Sobha Ram attested the same before the Sub-Registrar, it will amount to attestation as required under Section 123 of the Transfer of Property Act. In support of this contention, he relied upon Girja Datt Singh v. Gangotri Datt Singh:AIR 1955 SC 346 and Narain Singh v. Parsa Singh:1971 CLI 195.

After hearing the learned counsel for the parties at a great length, as observed earlier, it appears that before the trial court no such objection was taken specifically either at the time of admission of the document Exhibit PW-6/1 or at the time of the arguments. It was only at the appellate stage that this objection was taken on behalf of the defendant that the gift deed on the basis of which the plaintiff claimed himself to be owner of the site in dispute, is not a valid document as it was never attested by any of the witnesses as required under the Transfer of Property Act. This objection prevailed with the lower appellate court. The argument of the learned counsel for the appellant that the admission made by Janardhan Sharma, Mukhtiar-a-~- Aam of the donor and signed by the

scribe Ram Saran Dass and Sobha Ram before the Sub-Registrar, will amount to attestation, has no merit. The document was required to be attested at the time when it was actually executed on 18-1-1961 by Kanwar Chander Raj Saran Singh. Since no one attested the document at that time, the subsequent signatures of the scribe and Sobha Ram who identified the Mukhtiar-a-Aam Janardhan Sharma before the Sub- Registrar, could not fill up the lacuna. Under sub-section (2) of Section 35 of the Registration Act, the Registering Officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be or for any other purpose contemplated by this Act, examine anyone present in his office. Thus Ram Saran Dass and Sobha Ram only identified the Mukhtiar-a-Aam Janardhan Sharma in order to satisfy the Registering Officer. In Timmavva Dundappa Budihal v. Channava Appaya Kanasgeri: AIR 1948 Bom 322 it has been held that signatures made by the Sub-Registrar while he made endorsement on the document admitting it to registration and the signatures of the identifying witnesses made by them when they identified the executant before the Sub- Registrar cannot be regarded as the signatures of attesting witnesses. Moreover, at the time of registration the donor himself did not appear. It was only his Mukhtiar-a-

Aam Janardhan Sharma who presented the same for registration on his behalf. The authorities relied upon by the learned counsel for the appellant, are not at all applicable to the facts of the present case and are clearly distinguishable. Since, there was no attestation witness at the time of the execution of the document on 18th of January, 1961, the lower appellate court rightly came to the conclusion that the gift deed, if is taken away as not duly executed, the plaintiff cannot be held to be the owner of the suit land because he claimed his title on the basis of the gift deed alone.‖

18. At this stage, let us extract the relevant section in the Transfer of Property Act and the Evidence Act:

Transfer of Property Act ―3. In this Act, unless there is something repugnant in the subject or context, ‗attested', in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary; 123. For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

123. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered.‖ Indian Evidence Act ―68. Proof of execution of document required by law to be attested.- 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:

Provided 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 (16 of 1908), unless its

execution by the person by whom it purports to have been executed is specifically denied.‖ [only relevant portion is set out]

Referring the same, Learned Senior Counsel

submitted that since the respondent-plaintiff has complied with

the provision of Section 122 and 123 of the Transfer of

Property Act, read with Section 68 of the Evidence Act before

the Learned Court, so, Learned Court below on conclusion of

the trial rightly decreed the suit in favour of the respondent-

plaintiff.

Learned Senior Counsel in support of his contention

also referred another citation of the Hon‟ble Supreme Court in

V. Prabhakara v. Basavaraj K. (Dead) by LR. dated

07.10.2021 reported in (2022) 1 Supreme Court Cases 115

wherein in para No.16 Hon‟ble the Apex Court observed as

under:

―16. Section 68 of the Evidence Act, 1872 speaks of a requirement of proving the execution of a document required by law to be attested. This provision being mandatory as the word employed is ―shall'', meaning thereby it shall not be used as evidence unless one attesting witness at least has been called for to prove its execution. When it comes to proving a will, Section 68 of the Act is mandatorily to be followed. This provision has to be seen and read along with Section 63 of the Succession Act which not only mandates a compulsory attestation but reiterates compliance of Section 68 of the Evidence Act.‖

Referring the same, Learned Senior Counsel further

drawn the attention of the Court that since the respondent-

plaintiff has proved Exhibit-1 in accordance with Section 68 of

the Evidence Act, so, there was no requirement by the

respondent-plaintiff to comply with the provision of Section 67

of the Evidence Act and as such, Learned Court below rightly

delivered the judgment in favour of the respondent-plaintiff.

In addition to that Learned Senior Counsel also

relied upon another citation of the Hon‟ble Supreme Court of

India in Renikuntla Rajamma (D) by LRs. v. K.

Sarwanamma dated 17.07.2014 reported in (2014) AIR

SCW 4256 wherein in para No.16, the Hon‟ble Apex Court

observed as under:

―15. The matter can be viewed from yet another angle. Section 123 of the TP Act is in two parts. The first part deals with gifts of immovable property while the second part deals with gifts of movable property. Insofar as the gifts of immovable property are concerned, Section 123 makes transfer by a registered instrument mandatory. This is evident from the use of word ―transfer must be effected‖ used by Parliament insofar as immovable property is concerned. In contradiction to that requirement the second part of Section 123 dealing with gifts of movable property, simply requires that gift of movable property may be effected either by a registered instrument signed as aforesaid or ―by delivery‖. The difference in the two provisions lies in the fact that insofar as the transfer of movable property by way of gift is concerned the same can be effected by a registered instrument or by delivery. Such transfer in the case of immovable property no doubt requires a registered instrument but the provision does not make delivery of possession of the immovable property gifted as an additional requirement for the gift to be valid and effective. If the intention of the

legislature was to make delivery of possession of the property gifted also as a condition precedent for a valid gift, the provision could and indeed would have specifically said so. Absence of any such requirement can only lead us to the conclusion that delivery of possession is not an essential prerequisite for the making of a valid gift in the case of immovable property.‖

Referring the same, Learned Senior Counsel drawn

the attention of the Court that Section 123 of Transfer of

Property Act deals in two parts. According to Learned Senior

Counsel, the 1st part deals with the gifts of immovable property

and the 2nd part deals with the gifts of movable property and

so far as the gifts of immovable property are concerned,

Section 123 of Transfer of Property mandates that that should

be done by a registered instrument, which is mandatory.
Further, according to Learned Senior Counsel, even delivery of

possession is also not required in case of Gift Deed. Here in the

given case, according to Learned Senior Counsel Exhibit-1, i.e.

the suit deed was a registered instrument, so, no further

interpretation is required to be made on the said part. Finally,

Learned Senior Counsel drawn the attention of the Court that

based on the pleadings Learned Court below framed issues and

considering the evidence on record rightly decreed the suit in

favour of the respondent-plaintiff and there is no scope to

interfere with the judgment delivered by Learned Trial Court

below.

Learned Senior Counsel also referred the provision

of Order VI, Rule 4 of CPC and submitted that the written

statement of the contesting defendants did not contain the

requirements of Order VI, Rule 4 of CPC and he further drawn

the attention of the Court Sub-Rule 4 of Rule 15 of Order VI

and submitted that the written statement of the answering

defendants did not contain any affidavit. So, on the face of

record, the plea of the appellant needs to be dismissed and

furthermore, the contesting defendant in their pleading did not

clearly raise any explanation in respect of misrepresentation,

fraud, breach of trust, wilful default, or undue influence against

the plaintiff to substantiate the defence. So, Learned Senior

Counsel, finally, urged for dismissal of this appeal with costs.

08. I have heard detailed argument of both the sides

and gone through the record of the Learned Court below

including the judgment and decree delivered by Learned Court

below. Now, after hearing argument both the sides, I would

like to determine the following point for decision of this appeal.

(i) Whether the judgment and decree of the Learned

Court below suffers from any infirmity to be interfered

with?

To answer this point, I have already narrated the

oral arguments raised by Learned Counsels of both the sides at

length in detail as above.

09. The respondent-plaintiff filed the suit for declaration

of title to the suit land, recovery of possession thereof and with

further claim for mesne profits against the original defendant.

On perusal of the pleadings of the parties, Learned Trial Court

below framed in total five nos. of issues. At the time of

determination of issues, it appears that Learned Trial Court

after hearing both the sides and perusal of the pleadings of the

parties came to the observation that the suit property is

situated within the territorial jurisdiction of the Court and the

suit was filed within the pecuniary jurisdiction of the Court

also. The suit property was properly valued and as the suit

property was duly identified both by revenue plots nos. as well

as the boundary, so, it was the observation of the Learned Trial

Court that the suit land was duly identifiable. It was also

observed that at the time of institution of the suit, the

respondent-plaintiff was a minor, so, she filed the suit through

her father and next friend Sri Nitai Lal Saha and during the

pendency of the suit she attained majority and she opted to

proceed with the case of her own name and appeared, acted

through her father as her recognized agent by executing power

of attorney. Further, according to Learned Trial Court Order 3,

Rule 1 of CPC allows a party to appear, act and apply by a

recognized agent and since, according to the Learned Trial

Court the respondent-plaintiff was minor and she was duly

represented by her constituted attorney. So, Learned Trial

Court finally came to the conclusion that the suit was

maintainable. On perusal of the findings of the Learned Trial

Court, I do not find any infirmity in the judgment of the

Learned Trial Court in respect of determination of said issue

No.1 and as such the same is also answered in favour of the

respondent-plaintiff.

10. Learned Trial Court thereafter, conjointly took up

issue Nos.2, 3 and 4 for decision. In deciding the issues,

Learned Trial Court discussed the evidence on record of the

parties and relied upon different decisions. Finally, decided all

the issues in favour of the respondent-plaintiff. Now for the

sake of convenience, I would like to discuss herein below the

evidence on record of the parties. To substantiate the issues

the respondent-plaintiff has adduced two witnesses and the

contesting-defendants, i.e. the appellant herein adduced three

witnesses.

PW1, Sri Nitai Lal Saha in his examination-in-chief

in affidavit narrated all the assertions made in the plaint on

behalf of the respondent-plaintiff as PW1. Before the Court he

identified the registered gift deed No.1-675 dated 17.04.2009

in 11 sheets which was marked as Exhibit-1 subject to

objection by the defence. He further stated that Exhibit-1 was

executed by his mother Sikha Rani Saha, so, he identified the

signatures of his mother in the deed as executant marked as

Exhibit-1/1 series and he also identified his signature on

Exhibit-1 as „donee‟ or as „acceptor of gift‟ deed marked

Exhibit-1/2. He further identified the certified copy of order

dated 12.01.2015 delivered by D.C. & Magistrate, Udaipur,

Gomati in a proceeding under Section 46 & 81 of TLR and LR

Act in 03 sheets marked as Exhibit-2. Certified copy of order

dated 30.01.2015 passed by D.C. & Magistrate, Udaipur,

Gomati in a proceeding under Section 46 and 81 of TLR & LR

Act in 04 sheets marked as Exhibit-3, certified copy of order

dated 10.02.2015 passed by D.C. & Magistrate, Udaipur,

Gomati in a proceeding under Section 46 & 81 of TLR and LR

Act in 03 sheets marked as Exhibit-4 and identified the

registered power of attorney on 14.06.2018 executed by

plaintiff in his favour in 09 sheets marked as Exhibit-5.

During cross-examination by the contesting

defendant, he admitted that his wife Soma Saha applied for

mutation for 0.174 acre of land comprising in Dag No.4476,

4477 and 4478. He further admitted that on behalf of the

Ashmita Saha, he applied for mutation in respect of land

measuring 0.084 acre of land of Dag No.4482 and 4483. Soma

Saha on behalf of Pritish Saha applied for mutation in respect

of land measuring 0.023 acre of land of Dag No.2182 and 2183

and land of Dag No.4482, 4483, 4476, 4477 and 4478 stands

in the name of the defendant. He further stated that they have

got two brothers and four sisters and Shivam is the son of his

elder brother and his mother was well and healthy on

17.04.2009. He also stated that his parents resides with his

elder brother at Udaipur in the same mess and since 1997 he is

living in Aurangabad, West Bengal and since that time his

parents have been living with his elder brother in the same

mess and also stated that his mother made objection against

the prayer for mutation of the suit land in the name of the

respondent-plaintiff.

11. PW2, Sri Ratan Chakraborty in his examination-in-

chief in affidavit stated that he is a friend of Nitai Lal Saha,

father and constituted attorney of the plaintiff, Smt. Ashmita

Saha. He also stated that he is one of the attesting witnesses

of gift deed executed by Sikha Rani Saha, grandmother of

plaintiff, Smt. Ashmita Saha in favour of plaintiff. Said gift of

deed was executed on 17.04.2009 in the house of Smt. Sikha

Rani Saha at Badarmokam and said Sikha Rani Saha executed

the said deed of gift infront of him. He again stated that Sikha

Rani Saha first put her signature on the said deed of gift.

Thereafter, on behalf of the minor Nitai Saha put his signature

for acceptance for the deed and after that he himself and other

as attesting witnesses signed the deed and the other witnesses

were Harimohan Saha, grandfather of the plaintiff and one

Shyamal Kanti Chowdhury of Ramnagar, Road No.5. Said

Harimohan Saha first of all put his signature and thereafter, he

put his signature and after his signature, Shyamal Kanti

Chowdhury also put his signature on the deed. He identified his

signature marked as Ext.1/3.

During cross-examination nothing came out relevant

save and except denial.

12. DW1, Manju Roy, defendant No.1(iii) tried to

support the assertions made in the WS .

During cross-examination, she stated that in the

affidavit she did not give specific details of the suit land.

13. DW2, Sanjusree Roy also deposed in the same

manner like DW1 in her examination-in-chief in affidavit.

During cross-examination she stated that she did

not mention the revenue plot no. of the suit land nor she

submitted any document in the case.

14. DW3, Ranjusree Bakshi as DW1(iv) tried to support

the assertions made in the written statement in her

examination-in-chief.

During cross-examination she stated that she is

settled at Barasat and she did not mention revenue plot no. of

the suit land. Nothing more came out relevant.

15. Learned Trial Court below in deciding the issue

Nos.2, 3 and 4 relied upon the evidence on record of the

parties and relied upon the following citations:
(i) Renikuntla Rajamma (D) by LRs. v. K. Sarwanamma

reported in 2014 AIR SCW 4256.

(ii) Kashmir Singh vs. Union of India reported in 2008 (7) SCC

259.

(iii) Subhas Chandra Das Mushib vs. Ganga Prosad Mushib &

Ors. reported in AIR 1967 SC 878.

(iv) Janki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd.

reported in (2005) 2 SCC 217.

(v) Vidhyadhar vs. Mankikrao & Anr. reported in (1999) 3 SCC

573.

And Learned Trial Court finally decided all the issues

in favour of the respondent-plaintiff of the suit. I have also

perused those judgments.

16. At the time of hearing of this appeal, as already

stated Learned Counsel of both the sides referred few citations

which have already been discussed earlier. Learned Counsel for

the appellant at the time of hearing drawn the attention of the

Court that Section 67 of the Evidence Act was not complied

with by the respondent-plaintiff. For the sake of convenience, I

would like to refer herein below the relevant provision of

Section 67 of the Evidence Act which reads as under:

Section 67 of the Evidence Act:

67. Proof of signature and handwriting of person alleged to have signed or written document produced. -- If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.

17. I have gone through the aforesaid provision and

also the provisions of Section 68 of the Evidence Act along with

Section 3, 122 & 123 of Transfer of Property Act. On perusal of

Section 3 of the Transfer of Property Act i.e. the interpretation

clause, the meaning of „attested‟ is given which means in

respect of any instrument, the instrument shall be attested by

two or more witnesses, each of whom has seen the executants

signed and affix his mark to the instrument and it is also

interpreted that it shall not be necessary that more than one of

such witnesses shall be present at the same time of execution

and no particular form of attestation shall be necessary. Now,

if we go through the provision of Section 122 of Transfer of

Property Act where the definition of gift is defined. From the

said provision it appears that the gift shall be accepted by or

on behalf of the donee and Section 123 of the Transfer of

Property Act, says for the purpose of making a „gift‟ of

immovable property, the transfer must be affected by a

registered instrument signed by or on behalf of the done and

attested by at least two witnesses. Further, Section 68 of the

Evidence Act also provides that if a document is required by

law to be attested as mentioned in Section 123 of the Transfer

of Property Act, it shall not be used as evidence until one

attesting witness has been called for the purpose of proving its

execution. Here in the given case, Nitai Lal Saha, the father of

the plaintiff accepted the gift made by his mother in favour of

his daughter (Exhibit-1) which was attested by witnesses

namely, Ratan Chakraborty, Harimohan Saha and Shyamal

Kanti Chowdhury. Harimohan Saha, the grandfather of the

respondent-plaintiff by this time has expired and Ratan

Chakraborty, one of the attesting witness appeared and gave

evidence in favour of the respondent-plaintiff as a attesting

witness and identified his signature. Nitai Saha as donee on

behalf of the minor identified his signature and also identified

the signature of his deceased mother. Shyamal Kanti

Chowdhury was not produced or required to be produced by

the respondent-plaintiff. So, after going through the aforesaid

provisions and also after going through the principles of law

laid down by the Hon‟ble Apex Court in the aforenoted cases, it

appears that here in the given case Section 67 of the Evidence

Act would not attract to prove the execution of document

rather Section 68 read with Section 3, 122 & 123 of Transfer of

Property Act are to be taken into consideration at the time of

proving the contents of the documents which the respondent-

plaintiff has successfully discharged in proving the Gift deed

(Exbt.1).

Learned Trial Court below at the time of delivery of

judgment relied upon the judgment of Man Kumar (dead) by

LRs. vs. Hartar Singh Sangha reported in (2010) 10 SCC

512 of the Hon‟ble Apex Court and the Hon‟ble Apex Court in

deciding the said judgment referred another judgment of the

Hon‟ble Apex Court in Janki Vashdeo Bhojwani vs.

Indusind Bank Ltd. reported in 2005 (2) SCC 217 and in

para No.31 Learned Trial Court below made the following

observation:

―31. In the case of Man Kumar (dead) By LRs. Vs. Hartar Singh Sangha reported in (2010)10 SCC 512 the Hon'ble Supreme Court while referring to its earlier decision in the case of Janki Vashdeo Bhojwani vs. Indusind Bank Ltd. - 2005 (2) SCC 217 (relied on by the learned defence counsel) has summerised the legal position as to who should give evidence in regard to matters involving personal knowledge and held that an attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about validity of the power of attorney and the filing of the suit. But if the attorney holder has done any act or handled any transaction, in pursuance of the power of attorney by the principal, he may be examined as a witness to prove those acts or transaction. If the attorney holder along has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved. It is also held that where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his `state of mind' or `conduct', normally the person concerned alone has to give evidence and not an attorney holder. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or `readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.

We may gainfully refer to the relevant portion of the judgment hereunder:-

―18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:

(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge

of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.

(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.

(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.

(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.

(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.

(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.

(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference

to his `state of mind' or `conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his `bona fide' need and a purchaser seeking specific performance who has to show his `readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or `readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.

[emphasis supplied]‖

18. Here in the given case, the respondent-plaintiff was

minor at the time of execution of the deed. So, naturally on her

behalf, the gift was accepted by her father being attorney as

natural guardian, although her father applied for mutation but

that was not considered as already stated. As Nitai Lal Saha,

being the father of the respondent-plaintiff had the direct and

personal knowledge of the transaction between the plaintiff and

her grandmother, so, he is the only one competent person to

testify the facts involved in the suit. So, the contention of the

appellant that the original plaintiff did not appear before the

Court to depose as a witness cannot be accepted and for that

no adverse presumption can be drawn against her and Learned

Trial Court below rightly dealt with the matter.

19. As already stated from the side of the defendant,

there was no allegation of misrepresentation, fraud, breach of

trust, wilful default, or undue influence from the side of

defendant and the original defendant made different assertions

in support of her contention. In one place, she stated that she

never executed any gift of deed and in another place, she

stated that she did not execute the gift deed voluntarily,

rather, she did it at the instigation of the father of the plaintiff

who pressurized her. So, it also appears to this Court that in

the written statement the defendant did not narrate all the

assertions as required under Order 6, Rule 4 of CPC. Learned

Trial Court after hearing both the sides and based upon the

judgments, decided the issue Nos.2, 3 and 4 in favour of the

respondent-plaintiff and here in this appeal, after elaborate

hearing of both the sides and also on perusal of the said

provisions of law and also the citations referred by Learned

Counsel for the parties specifically the respondent-plaintiff, it

appears that Learned Court below rightly decided those issues

in favour of the respondent-plaintiff and I find no infirmity in

respect of deciding those issues by the Learned Trial Court in

favour of the respondent-plaintiff and accordingly, I do hereby

concur with the views of Learned Trial Court and accordingly,

those issues are also decided in affirmative in favour of the

respondent-plaintiff.

Since, at the time of hearing, nothing was raised by

Learned Counsel for the appellant in respect of issue No.V and

there was no further argument from the side of the

respondent-plaintiff in respect of that issue. So, in my

considered view the said issue was also rightly decided by the

Learned Court below. So, after hearing argument of both the

sides and on perusal of the record of the Learned Court below

and also after going through the principles of citations referred

by Learned Counsel for the respondent-plaintiff, it appears that

there was no infirmity in the judgment and decree delivered by

Learned Trial Court below in favour of the respondent-plaintiff,

rather it appears that the present appellant has failed to make

out any case for interference, as such the same is liable to be

dismissed.

20. In the result, the appeal filed by the appellant

stands dismissed being devoid of merit. The judgment dated

09.03.2021 and decree dated 15.03.2021 delivered by Learned

Civil Judge, Senior Division, Court No.2, Udaipur, Gomati

District in connection with case No.T.S.38 of 2016 is hereby

upheld and accordingly, the same is affirmed. The plaintiff is

entitled to all the reliefs as granted by Learned Trial Court in

the judgment. But considering the facts and circumstances of

the case, no order is passed as to costs.

With this observation, this appeal stands disposed

of.

Prepare decree accordingly and send down the LCR

along with the copy of this judgment.

Pending application(s), if any, also stands disposed

of.
                                                       JUDGE





MOUMITA           DATTA

DATTA             +05'30'
Purnita
 