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HIGH COURT OF CALCUTTA
Renupada Mukherjee, Banerjee
DHARMADAS MONDAL - Appellant
Versus
KASHI NATH DE - Respondent
A. F. A. D. 1107 Of 1954
Decided On : MARCH 10, 1958
TRANSFER OF PROPERTY ACT - GIFT DEED - EXECUTION AND ATTESTATION - ORAL GIFT OF MOVABLES - VALIDITY - PRESUMPTION OF VALIDITY OF REGISTERED DEED - SCOPE - IDENTIFIER AS ATTESTING WITNESS - SET-OFF OF SRADH EXPENSES AGAINST PRICE OF MOVABLES.
Fact of the Case:
Plaintiffs, as heirs of Santiram Nandi, sued to recover possession of immovable and movable properties from the defendant, who claimed title under a gift deed executed by Santiram. The Trial Court held that the gift deed was not duly executed and attested and that there was no oral gift of the movables. The Lower Appellate Court reversed the decree, holding that the gift deed was validly executed and attested and that the defendant was entitled to set off the sradh expenses against the price of the movables.
Finding of the Court:
The High Court held that the gift deed was not duly executed and attested, as it was not signed by two witnesses as required by Section 123 of the Transfer of Property Act. The Court also held that the identifier who signed the registration endorsement was not an attesting witness, as he did not sign as a person having seen the executant sign his name or heard him admit execution of the deed. The Court further held that the defendant was not entitled to set off the sradh expenses against the price of the movables, as he incurred the expenses gratuitously and was in possession of the disputed properties without any valid title.
Issues: 1. Whether the disputed deed of gift was duly executed by Santiram Nandi? 2. Whether the said deed was legally attested? 3. Are the plaintiffs appellants entitled to get a decree for the value of the movables gifted by Santiram Nandi?
Ratio Decidendi: 1. The Court held that the gift deed was not duly executed and attested, as it was not signed by two witnesses as required by Section 123 of the Transfer of Property Act. The Court also held that the identifier who signed the registration endorsement was not an attesting witness, as he did not sign as a person having seen the executant sign his name or heard him admit execution of the deed. 2. The Court held that the defendant was not entitled to set off the sradh expenses against the price of the movables, as he incurred the expenses gratuitously and was in possession of the disputed properties without any valid title.
Final Decision: The High Court allowed the appeal, set aside the judgment and decree of the Lower Appellate Court, and restored those of the Trial Court with the modification that the direction of the Trial Court for appointment of a commissioner for ascertaining the extent and value of the movables was set aside and the plaintiffs appellants were instead given a decree for Rs. 316/- against the respondent as being the price of the movables left by deceased Santiram Nandi.
( 1 ) THE plaintiffs of the Trial Court are the appellants in this Court, and the appeal arises out of a suit instituted by them for recovery of possession of some immovable and movable properties described in two schedules, namely, schedules Ka and Kha of the plaint, upon declaration of their title thereto as heirs of one deceased Santiram Nandi. The appellants are all minors and the suit was brought on their behalf by their fathers as their next friends on the following allegations: one Santiram Nandi of village Khudika in Burdwan district had four daughters, viz. , Nanibala, Bisala, Kutura and Janjali, all of whom died in quick succession within a few years before the death of their father. Santiram's wife had also predeceased him. After his death Santiram left the three plaintiffs as his natural heirs Dharmadas Mondal (plaintiff No. 1) being son of Nani-bala, and the other two plaintiffs being sons of Bisala. Santiram was possessed of nearly forty bighas of land and also of some movable properties during his life time. He died on 14th Falgun, 1355 B. S. , corresponding to 26-2-1949. Before his death he executed two deeds of gift on 22nd Kartick 1355 B. S. , corresponding to 8-11-1948, in favour of respondent Kashinath De and his three brothers who are sister's sons of Santiram. Under the deed of gift nearly ninteen bighas of land were given to the donees. It is the case of the plaintiffs that after the death of Santi Ram, attempt was made on their behalf to take possession of the remaining lands and also of the movables, but the defendant respondent resisted the plaintiff's from obtaining possession of nearly twelve bighas of land described in schedule Ka of the plaint and also of the movable properties described in schedule Kha. Hence the occasion for the present suit. (2) The defence of the defendant was that during the life time of Santiram he had made a gift of the disputed lands to him by executing a deed of gift on 3rd Falgun, 1355 B. S. , and had also made an oral gift in respect of such movables as were left by him, and so the plaintiffs were not entitled to claim them by inheritance from Santiram. The defendant questioned the extent and also the value of the movables left by Santiram.
( 2 ) UPON these pleadings the main issues which called for the determination of the Trial Court were whether the deed of gift relied on by the respondent was genuine and whether it was duly executed and attested according to law, and whether there was an oral gift of the movable properties as alleged by the defendant respondent. An issue was also raised whether the deed of gift is invalid by reason of fraud, coercion or undue influence, but this issue is no longer material for the present appeal in view of the findings of the Courts below that the document is not invalid for these reasons.
( 3 ) THE Trial Court held that the deed was not executed in the manner alleged by the defendant, and it was not lawfully attested at the time of its alleged execution, although there was a valid attestation at the time of its registration. The Trial Court did not uphold the deed, because due execution of the document, as alleged by the defendant, had not been proved. It further held that the story of oral gift set up by the defendant in respect of the movable properties was untrue. Accordingly, the Trial Court passed a decree in favour of the plaintiffs in respect of the immovable properties of schedule Ka and gave a direction for appointment of a commissioner for ascertaining the extent and value of the movable properties described in schedule Kha.
( 4 ) AN appeal was preferred by the defendant challenging the correctness of the decree passed by the Trial Court. The Lower Appellate Court reversed the decree of the Trial Court holding that due execution and attestation of the document had been proved. Regarding the alleged oral gift of the movable properties, the Lower Appellate Court agreed with the Trial Court that th
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