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2012 Supreme(Cal) 898
IN THE HIGH COURT OF CALCUTTA
Tarun Kumar Gupta, J.
Asesh Kumar Seth & Ors.
Versus
Ashim Kumar Seth
S.A. No. 34 of 2001
Decided on : 4th October, 2012
For the appellant: Ms. Sharada Parmar, Ms. S. Dan
For the respondent: Mr. Debotosh Khan, Mr. Samiran Giri, Mrs. Prativa Ghatak
The entries in the record of rights have presumptive value of correctness until rebutted, and a person alleging fraud and/or undue influence in the matter of execution of a registered document has to prove the same by producing cogent evidence.
Headnote:
DEED OF GIFT - OWNERSHIP - TRANSFER OF PROPERTY ACT, SECTION 117 - PRESUMPTION OF TITLE FROM RECORD OF RIGHTS - FRAUD AND UNDUE INFLUENCE - EVIDENCE.
Fact of the Case:
The plaintiff filed a suit for declaration of a deed of gift as void, alleging that the property in question originally belonged to his grandfather and was gifted to his grandmother as dowry. He claimed that the property devolved upon his father and then to him and his siblings. The defendant, who was the son of the plaintiff's mother, claimed that the property belonged to his mother and that she had the authority to gift it to him.
Finding of the Court:
The trial court dismissed the suit, holding that the plaintiff failed to establish that his father was the owner of the property or that the deed of gift was vitiated by fraud or undue influence. The lower appellate court allowed the appeal, holding that the mother did not have 16 annas share in the property and that the deed of gift was vitiated by coercion and fraud.
Issues: 1. Whether the lower appellate court erred in holding that the mother did not have 16 annas title to the property when she was found to be exercising all the rights of a lawful owner and the plaintiff failed to adduce any convincing evidence to show that the property legally transferred to his grandmother or that his grandmother and father owned and possessed the same. 2. Whether the lower appellate court erred in holding that the deed of gift was vitiated by fraud and undue influence in the absence of specific pleadings and evidence to that effect.
Ratio Decidendi: 1. The entries in the record of rights have presumptive value of correctness until rebutted. In this case, the entries in the record of rights showed that the property was in the name of the mother, and the plaintiff failed to produce any document to show either title or possession over the property by his grandmother or father. 2. The plaintiff alleged fraud and undue influence in the execution of the deed of gift, but failed to produce cogent evidence to support his claim. The trial court meticulously examined the evidence and found that the deed was not vitiated by fraud or undue influence, and the lower appellate court erred in reversing this finding without applying the correct legal tests.
Final Decision: The appeal was allowed, setting aside the judgment and decree of the lower appellate court and restoring the judgment and decree of the trial court.
Tarun Kumar Gupra, J.
1. This second appeal is directed against judgment and decree dated 29th January, 2000 passed in O.C. Appeal No.49 of 1997 by learned Additional District Judge, Malda reversing the judgment and decree dated 30th April, 1997 passed by learned Assistant District Judge, Malda in O.C. suit No.167 of 1993.
2. The respondent as plaintiff filed said suit for declaration of a deed of gift relating to ‘ka’ schedule property as void with an alternative prayer for partition. His case, in short, is that ‘ka’ schedule property originally belonged to one Pran Mohan Das, father of Brajabala who was grand mother of the parties of the suit. It is further case that on death of Pran Mohan Das suit property devolved upon his heirs namely Balaram and Kanai whose names were recorded in C.S.R.O.R. As per last wish of Pran Mohan Das they gifted the suit property to Brajabala as a dowry in her marriage. Brajabala died while his son Brojesh, the father of the parties, was only one year old and thereafter Brojesh was brought up in his maternal uncle’s house. Brojesh was the owner of the ‘ka’ schedule property as only heir of Brajabal. After death of Brojesh in 1981 the suit property devolved upon his three sons namely Asesh (defendant No.1), Asim (plaintiff), Adhir (defendant No.2), daughter Ashoka (defendant No.3) and wife Bimala each having 1/5th share therein. At the time of drawing up a family settlement in 1981 it came out that the suit property was wrongly recorded in R.S.R.O.R. in the name of their mother Bimalabala. Taking advantage of said wrong entry in the record of right Bimalabala executed one deed of gift being No. 7127 in favour of Adhir (defendant No.2) on 20.07.1993. Said deed was also vitiated by fraud and undue influence. At the relevant time Bimalabala was not also physically and mentally fit to execute said deed of gift. Bimalabala had only 1/5th share in said suit property being one of the legal heirs of her husband Brojesh. It is further case that no partition was effected in between the co-sharers and hence the plaintiff is entitled to get a decree for declaration that the aforesaid deed of gift was void and not binding upon him and in the alternative a decree of partition.
3. The defendants contested the suit by filing a joint written statement denying material allegations of the plaint and contending inter alia that the ‘ka’ schedule property belonged to their mother Bimalabala in whose name it was correctly recorded in the R. S. record of right as well as in the L. R. record of right and that she voluntarily executed the deed of gift in favour of defendant No.2 Adhir within the knowledge of the plaintiff and that the suit was liable to be dismissed with cost.
4. Learned Trial Court framed several issues and after contested hearing dismissed the suit by observing that the plaintiff failed to establish that his father Brojesh was the owner of the suit property or that Bimalabala was not the owner of the same or that the impugned deed of gift was vitiated by fraud and/or undue influence.
5. However, in the appeal preferred by the respondent plaintiff learned Lower Appellate Court allowed the same by setting aside the judgment and decree of learned Trial Court by observing that Bimalabala had not 16 annas share in the suit property and as such had no authority to gift the same to her son Adhir (defendant No.2) and that the impugned deed of gift was also vitiated by coercion and fraud.
6. The appeal was heard on the following substantial question of law.
(1) Whether learned Lower Appellate Court substantially erred in law by observing that Bimalabala had not 16 annas title to the suit property when in one hand she was found to be exercising all the rights of a lawful owner being in possession of the same which reflected in R.S.R.O.R. and the subsequent record of right when, on the other hand, plaintiff failed to adduce any convincing evidence to show that the suit property legally transferred to Braj
