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HIGH COURT OF CALCUTTA
TARUN KUMAR GUPTA, J.
Jumman Saha - Appellant
Versus
Dabir Saha – Respondent
Appeal No : S.A. No. 21 of 2003
Decided On : Sep 03, 2010
DEED OF GIFT - VALIDITY - REQUIREMENTS - SECTION 123 OF TRANSFER OF PROPERTY ACT AND SECTIONS 60-61 OF REGISTRATION ACT - COMPLIANCE - PRESUMPTION - EVIDENCE ACT, SECTION 114(e) - REMAND FOR FURTHER EVIDENCE.
Fact of the Case:
Plaintiff filed a suit for declaration of title over the 'Ka' schedule land and other consequential reliefs, claiming that he had received the land as a gift from the previous owner, Hara Saha, through a registered deed of gift. The defendants, claiming to be Hara Saha's nephews, contested the suit, denying the plaintiff's title and possession and asserting their own possession since 1970.
Finding of the Court:
The Trial Court decreed the suit in favor of the plaintiff, but the First Appellate Court reversed the decision, holding that the deed of gift was invalid due to the absence of signatures of at least two attesting witnesses and the certificate of registration as required by Section 123 of the Transfer of Property Act and Sections 60-61 of the Registration Act.
Issues: (1) Whether the deed of gift was valid despite the absence of signatures of attesting witnesses and the certificate of registration. (2) Whether the First Appellate Court erred in not discussing other issues, particularly the issue of a bona fide mistake in the deed of gift regarding the plot number.
Ratio Decidendi: The court held that: (1) The First Appellate Court erred in not giving the plaintiff an opportunity to produce a certified copy of the deed of gift to prove compliance with the requirements of Section 123 of the Transfer of Property Act and Sections 60-61 of the Registration Act. (2) Under Section 114(e) of the Indian Evidence Act, there is a presumption that official acts have been regularly performed, including the attestation of the deed of gift by two witnesses and its subsequent registration. (3) The First Appellate Court should have invoked its powers under Order 41 Rule 27 C.P.C. to allow the plaintiff to remove the defects in the deed of gift by producing the certified copy.
Final Decision: The court allowed the appeal, set aside the impugned judgment of the First Appellate Court, and remanded the case back to the First Appellate Court for further proceedings. The First Appellate Court was directed to take the required evidence under Order 41 Rule 27 C.P.C. regarding the compliance with the legal requirements at the time of execution of the deed of gift and to rewrite the judgment after giving an opportunity to the parties for further arguments.
Tarun Kumar Gupta, J.
1. THIS appeal is directed against judgment and decree dated 24th May, 2002 and 1st June, 2002 respectively passed by learned Additional District Judge, Midnapur in Title Appeal No.95 of 2001 thereby reversing the judgment and decree dated 27th April, 2001 and 4th May, 2001 respectively passed by learned Civil Judge (Junior Division), 2nd Court, Contai, Midnapur East in Title Suit No.187 of 1995. The appellant's/plaintiff's case, in short, is that 'Ka' schedule land previously belonged to one Hara Saha who by registered deed of gift being No.6537 dated 14.07.1973 gifted the 'Ka' schedule land along with other lands to the plaintiff followed by delivery of possession and that since then plaintiff was in possession of those lands by paying rent to the Government. Subsequently, it was detected that due to mistake of the scribe a plot No.1581 instead of plot No.1481 was written in the deed of gift. Though said mistake was palpable as Hara Saha had no right, title or possession over plot No.1581, though he had such right, title and interest on plot No.1481. On 25th Ashar, 1402 B.S. the defendants threatened the plaintiff with dispossession from 'Ka' schedule property i.e., plot No.1481 and as a result, plaintiff was compelled to file said Title Suit No.187 of 1995 for declaration of title over 'Ka' schedule land and other consequential reliefs.
2. THE defendants contested said suit by filing written statement denying material allegations of the plaintiff and contending inter alia that Hara Saha who was admitted owner of the suit property died issueless and out of love and affection handed over the possession of the same to the defendants being his nephews in the year 1970 and since then defendants were in possession and accordingly their names were recorded in record of right and that plaintiff had no right, title, interest and possession over the said land and the suit should be dismissed with cost. It was further case of the defendants that plot Nos. 219, 213 and 214 mentioned in the deed of gift were exclusive property of Pir Saheb and those were used by the people of Muslim community and that no individual had right to deal with the same. On the basis of the plea of the parties learned Trial Court framed as many as seven issues which stand as follows:-
(1) Is the suit maintainable in its present form and prayer?
(2) Is the suit barred by limitation?
(3) Has the plaintiff any cause of action?
(4) Has the plaintiff right, title and interest over the 'Ka' schedule land?
(5) Is there any bonafide mistake in the deed of gift dated 14.07.1973 regarding plot No.1481 which is purportedly written as 1581?
(6) Is the plaintiff entitled to get relief what he has prayed for?
(7) To what other relief, if any, is the plaintiff entitled?
During trial both the parties adduced oral as well as documentary evidence and the deed of gift was also marked as (Ext.3), on proof without objection. Learned Trial Court decreed the suit in favour of the plaintiff. However, learned First Appellate Court allowed the appeal by way of reversing the judgment and decree of learned Trial Court only on the ground that the deed of gift (Ext.3) as produced during evidence did not bear signature of at least two attesting witnesses as per requirements of Section 123 of T. P. Act and that the same did not also bear the certificate of registration and its number in the registered book as required under Section 60 61 of the Registration Act. According to learned Appellate Court deed of gift was not valid for those defects and that plaintiff did not get any title on the strength of the said deed of gift. Learned Appellate Court, however, did not discuss any other point or issue.
3. BEING aggrieved with said judgment of learned First Appellate Court the plaintiff has filed this Second Appeal. At the time of admission of Second Appeal Hon'ble Division Bench has framed following law points to be heard.
(1) Whether the learned Additional Distri
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