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1988 Supreme(Cal) 297
High Court Of Calcutta
PADMA KHASTGIR, L. M. Ghosh
PROBHAT CHANDRA KANRAR - Appellant
Versus
RANI BALA KANRAR - Respondent
FIRST APPEAL 284 Of 1982
Decided On : 07/19/1988
A document that is 30 years old may be presumed to be genuine and authentic under Section 90 of the Evidence Act, despite the absence of strict compliance with the requirements of Section 68 of the Evidence Act, which provides for the proof of documents.
Headnote:
PARTITION - DEED OF GIFT - EVIDENCE ACT, SECTIONS 68 AND 90 - PRESUMPTION AS TO DOCUMENTS 30 YEARS OLD - BURDEN OF PROOF - PARTIAL PARTITION - FACTUM OF EXECUTION - SIGNATURE - ATTESTING WITNESS - INTERPRETATION OF DEED - BRICKS - MOVABLE PROPERTIES.
Fact of the Case:
Plaintiffs filed a suit for partition of properties belonging to their common ancestor, Surendra Nath Kanrar. The defendants, heirs of Ram Chandra Kanrar, one of Surendra Nath's sons, claimed ownership of certain properties based on a deed of gift executed by Surendra Nath in favor of Ram Chandra. The plaintiffs challenged the authenticity of the deed of gift, arguing that it was not properly proved in accordance with the Evidence Act. The defendants contended that the deed of gift was genuine and could be presumed to be authentic under Section 90 of the Evidence Act.
Finding of the Court:
The court held that the deed of gift was genuine and authentic and could be presumed to be so under Section 90 of the Evidence Act, despite the plaintiffs' objections regarding its proof under Section 68 of the Evidence Act. The court found that the deed of gift was acted upon by the parties and that the properties covered by it were recorded in the names of Ram Chandra and his heirs. The court also found that the plaintiffs had not exhausted all the means to secure the attendance of an attesting witness to prove the execution of the deed of gift, as required under Order 26, Rule 10 of the C.P.C. Therefore, the court rejected the plaintiffs' challenge to the deed of gift.
Issues: 1. Whether the deed of gift executed by Surendra Nath Kanrar in favor of Ram Chandra Kanrar was genuine and authentic. 2. Whether the deed of gift could be presumed to be authentic under Section 90 of the Evidence Act, despite the plaintiffs' objections regarding its proof under Section 68 of the Evidence Act. 3. Whether the plaintiffs had exhausted all the means to secure the attendance of an attesting witness to prove the execution of the deed of gift.
Ratio Decidendi: 1. The court held that the deed of gift was genuine and authentic based on the following factors: a. The deed of gift was acted upon by the parties, as evidenced by the fact that the properties covered by it were recorded in the names of Ram Chandra and his heirs. b. The plaintiffs had not exhausted all the means to secure the attendance of an attesting witness to prove the execution of the deed of gift, as required under Order 26, Rule 10 of the C.P.C. c. The deed of gift was 30 years old and could be presumed to be authentic under Section 90 of the Evidence Act, despite the plaintiffs' objections regarding its proof under Section 68 of the Evidence Act.
Final Decision: The court allowed the appeal in part and modified the judgment and decree of the lower court. The court declared that the plaintiffs were entitled to a share in the properties covered by the deed of gift, as well as in other properties that were not covered by the deed of gift. The court also dismissed the plaintiffs' claim for certain other properties and the defendants' cross-objection.
( 1 ) IN the 3rd Court of the Subordinate Judge, Howrah, the plaintiffs filed a suit for partition. The properties are set out in Schedules 'a' and 'b' of the plaint. The Learned Subordinate Judge decreed the Suit in part.
( 2 ) NOT accepting the judgment and decree, some of the defendants have preferred this appeal.
( 3 ) IT is not disputed that one Surendra Nath Kanrar was the common ancestor of the parties. There is also no dispute as regards the majority of the plots, that those plots belonged to Late Surendra Nath Kanrar. Surendra Nath Kanrar left four sons namely, Ram Chandra Kanrar, Lakshman Chandra Kanrar, Bharat Chandra Kanrar and Netai Chandra Kanrar. Netai Chandra Kanrar was the plaintiff No. 1. On his death, his heirs have been substituted. The plaintiffs 2 to 7 are the heirs of Lakshman Chandra Kanrar. The defendants 1 to 10 are the heirs of Ram Chandra Kanrar and the defendants 11 to 16 are the heirs of Bharat Chandra Kanrar. It is also not disputed that the four sons of Ram Chandra Kanrar acquired one-fourth share each in the properties, set out in 'a' and 'b' Schedule of the plaint. In the plaint, it is mentioned that some portions of the properties out of Plot No. 238 of the 'b' Schedule were acquired in land acquisition proceedings and compensation money was distributed amongst the co-sharers as per their shares respectively. With regard to Plot Nos. 360 and 361, which are Item Nos. 6 and 7 respectively of the 'a' Schedule properties of the plaint, it is the plaintiffs' case that there are about 1 lac bricks, which were manufactured by Late Surendra Nath Kanrar. By registered deed, dated the 23rd of July, 1968, the defendant Nos. 11 to 16 sold their 1/8th shares in those very plots, namely, Plot Nos. 360 and 361, to the plaintiff No. 1. So in those plots, the plaintiff No. 1 claims 3/8th share and the rest of the plaintiffs claim 1/4th share.
( 4 ) THE defendants 2 to 7, 9 to 12, 13, 14, 15 and 16 have filed one set of written statement. The defendant Nos. 1 and 8 have filed another set of written statement. Substantially, the defence of both the sets of the defendants are the same. It is not disputed by the defendants that the parties acquired generally the shares as mentioned in the plaint. It is only stated that by a deed of gift, dated 10. 9. 47, Ram Chandra Kanrar gat from his father Plot Nos. 71 and 71/621 and they demarcated southern half of plot 70 of the 'b' Schedule of the plaint. Another point taken by the defendants is that the Suit is bad for partial partition. Some of the plots have been shown in the written statements, are slid to have been the joint properties and not brought within the hotchpotch. In the written statement of the defendants 1 and 8, it is pointed out that the heirs of Bharat Chandra Kanrar, that is, the defendants 11 to 16, sold to Ram Chandra their 1/8th share in plots 360 and 361 of Khatian No. 417/2 by Kobala, dated 23. 1. 68 like the transfer by the some defendants in favour of the plaintiff No. 1. With regard to the bricks stacked on Plot Nos. 360 and 361, it is the submission of the defendants that they belonged to Ram Chandra exclusively, who got them manufactured at his costs, and got the letters R. C. K. inscribed on them.
( 5 ) THESE are the main contentions between the parties.
( 6 ) THE Learned Court below did not accept the plea of partial partition. With regard to the said deed of gift, in favour of Ram Chandra, the Learned Trial Court held that document was of no use to the defendants 1 to 10. In the matter of the establishment of their title on the basis of the deed of gift, that is to say, the Learned Trial Court rejected the deed of gift and allowed shares according to ordinary devolutions.
( 7 ) AT the outset, the question of partial partition may be resolved. From the judgment of the Trial Court, it appears that the only contention as to non-inclusion of some of the properties was with regard to Plot No. 21 of Khatian No. 505. It is
