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High Court Of Calcutta
ARUN KUMAR MITRA
BALAL CHANDRA PARUL - Appellant
Versus
DURGA BALA DASI - Respondent
S. A. 813 Of 1990
Decided On : 04/30/2004
TRANSFER OF PROPERTY ACT - GIFT DEED - REVOCATION - SUIT FOR DECLARATION OF NULLITY OF GIFT DEED - JURISDICTION OF SECOND APPELLATE COURT TO INTERFERE WITH THE FINDING OF FACT OF THE LOWER APPELLATE COURT - APPLICABILITY OF ORDER 2, RULE 2 OF THE CODE OF CIVIL PROCEDURE.
Fact of the Case:
The plaintiff filed a suit seeking a declaration that a gift deed executed by her in favor of the defendant was void and that the plaintiffs were entitled to the suit property. The trial court dismissed the suit, but the appellate court allowed the appeal and set aside the judgment and decree passed by the trial court. The defendant preferred a second appeal.
Finding of the Court:
The second appellate court can interfere with the finding of fact of the lower appellate court if the finding is perverse, based on no evidence, or based on surmise and conjecture. The suit is not hit by the provisions of Order 2, Rule 2 of the Code of Civil Procedure, as the plaintiffs have claimed relief in respect of the deed of cancellation executed on 24-10-1994.
Issues: 1. Whether the learned appellate court below applied correct principle of law and came to a decision, on the basis of the evidence on record that the appellant has not acquired any title to the suit property on the basis of the deed of gift executed on 27-9-1984 and correctly came to the decision that the said deed of gift is not the result of free and voluntary act of the donor. 2. Whether the appellate court below misdirected himself in interpreting the law in the perspective of the admitted fact that there is no stipulation in the original deed of gift executed in favour of the defendant/ appellant empowering the donor to cancel or revoke the said deed of gift. 3. Whether the suit is hit by the provisions of order 2, rule 2 of the code of civil procedure inasmuch as the plaintiffs/respondents have not claimed any relief in the suit in respect of the deed of cancellation executed on 24-10-1994 and whether in such circumstances the appellate court below came to right finding to the effect that the respondent nos. 2 to 4 have right, title, interest and possession in the suit property. 4. Whether the judgment and decree passed by the appellate court below was on proper scrutiny of the judgment of the trial court as envisaged in the code of civil procedure. 5. Whether the judgment and decree passed by the appellate court below is based on surmise and conjecture and can be termed as perverse.
Ratio Decidendi: 1. The second appellate court can interfere with the finding of fact of the lower appellate court if the finding is perverse, based on no evidence, or based on surmise and conjecture. 2. The suit is not hit by the provisions of Order 2, Rule 2 of the Code of Civil Procedure, as the plaintiffs have claimed relief in respect of the deed of cancellation executed on 24-10-1994.
Final Decision: The second appeal is dismissed.
( 1 ) THIS second appeal has been preferred by the defendant challenging the judgment and decree dated 4th august, 1988 passed by the learned 4th addl. District judge, alipore in t. a. no. 72/1986 reversing the judgment and decree dated 13th may, 1986 passed by the id. Munsif, 1st court at basirhat in t. s. no. 173 of 1984.
( 2 ) THE case as has been made out by the plaintiff and/or as it transpire from the plaint is inter alia as follows :- prior to the death of the husband of the plaintiff no. 1 in 1975 the defendant was kept in the house of the plaintiffs about 4 to 5 years and he used to work with the plaintiff ever since and because of his works and behaviour the plaintiff no. 1 and her husband had got great love and affection for him. Plaintiff nos. 2 to 4 are the sons of plaintiff no. 1 and they used to reside elsewhere at the place of their employment. The said sons of the plaintiff no. 1 asked her to go and reside with them but as per husband's wish she did not leave her father-in-law's house at nandanpur. The plaintiff nos. 2 to 4 used to send money every month to plaintiff no. 1. The plaintiff nos. 2 to 4 being the eldest and youngest son they used to visit the plaintiff no. 1 regularly. The defendant requested the plaintiff no. 1 to give him some land for constructing his house and plaintiff no. 1 agreed to give him some land for constructing his house and plaintiff no. 1 agreed to give him about 2 to 21/2 cottahs of land for this purpose. Plaintiff no. 1 has been suffering from various ailments for quite sometime and also consume "aphin". Defendant on the pretext of taking her to a doctor took her to hasnabad after administering her with a large quantity of aphin water' and then to the sub-registrar's office and fraudulently got the deed of gift executed by her in collusion with the deed writer and the attesting witnesses. The said deed has not been read over or explained to her, nor was the same written under her instructions. The plaintiff no. 1 was under the impression that the suit deed was executed concerning 21/2 cottahs of land. When plaintiff nos. 2 and 4 came after 'bijaya dasami, plaintiff no. 1 told them about the suit deed, whereupon they obtained certified copy of the same. Plaintiff no. 2, thereafter, took plaintiff no. 1 with himself to barasat and subsequently plaintiff no. 1 executed a deed of cancellation of the deed of gift of the suit land and got a deed of gift executed in favour of her sons that is plaintiff nos. 2 and
( 3 ) DEFENDANT when tried to harvest crops standing on the suit land on the basis of the fraudulent and void deed and the present suit was filed by the plaintiffs claiming that they are in possession of the suit land.
( 4 ) THE defendant contested the suit by filing written statement denying all the material allegations of the plaintiffs and contending inter alia that the suit is not maintainable in its present form, that the plaintiffs have no cause of action, that the suit is bad for defect of parties, that the plaintiff no. 1 and her husband had reared up the defendant in their house since his childhood, that the defendant used to look after them in all respects and was looked upon by them as his son and loved by them. The defendant also alleged that the plaintiff no. 1 out of love and affection and voluntarily with full knowledge executed the deed of gift in respect of the suit land in favour of the defendant and the defendant further alleged that he is possessing the suit land since the execution of the suit deed. The said deed of gift is neither fraudulent nor void as alleged by the plaintiff and the defendant along with his wife are residing in the plaintiffs house and he is in possession of the suit land as stated above. The defendant further prayed that the suit should be dismissed with costs.
( 5 ) ON the above pleading the following issues were framed :1. Have the plaintiffs any cause of action for this suit ? 2. Was the deed for gift numbere
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