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IN THE HIGH COURT AT CALCUTTA
Ashis Kumar Chakraborty, J.
Sushama Rani Roy Chowdhury – Appellant
Vs.
Bani Roy and Ors. – Respondents
SAT No. 55 of 2010
Decided on : 29-09-2016
GIFT DEED - ILLITERACY OF DONOR - ATTESTATION - EVIDENCE ACT, 1872, SECTION 68 - TRANSFER OF PROPERTY ACT, 1882, SECTION 123 - REGISTRATION ACT, 1908 - Where the plaintiff, an illiterate donor, challenged the validity of a gift deed executed in favor of the defendant, the court held that the deed was void due to lack of proper attestation and failure to prove that the contents of the deed were read out or explained to the plaintiff.
Fact of the Case:
The plaintiff, an illiterate lady, filed a suit seeking a declaration that the deed of gift executed by her in favor of the defendant, her youngest daughter, was void and not binding on her. She claimed that she never intended to execute any gift deed and that she had not executed the said gift deed dated November 14, 2003. The defendants contested the suit and claimed that the plaintiff had executed the gift deed on her own volition after understanding the contents thereof.
Finding of the Court:
The court found that the plaintiff was an illiterate lady who could only sign her name and that the defendants failed to adduce any cogent evidence to prove that the plaintiff was an educated person and could read or write. The court also found that the deed of gift did not conform to the compulsory requirement of “attestation” by at least two witnesses, as required under Section 123 of the Transfer of Property Act, read with the definition of the word ‘attested’ in Section 3 of the said Act because DW-4, who adduced evidence as the attesting witness of the gift deed, clearly deposed in his cross-examination that the plaintiff did not execute the deed in his presence and he put the signature on the deed of gift as one, Ajit Das asked him to sign as witness in the deed and after doing so he left the chamber of DW-3 and does not know anything else.
Issues: 1. Whether the deed of gift being No. 6446, dt. 14/11/03, registered on 17/11/03 executed in respect to suit property illegal and void? 2. Whether the plaintiff is entitled to get a decree as prayed for?
Ratio Decidendi: The court held that the defendants failed to discharge the onus of proving that the document dated December 14, 2003, being (Ext-"A") was, in fact, read out to the plaintiff and she understood the contents of the same. The court further held that the deed of gift did not conform to the compulsory requirement of “attestation” by at least two witnesses, as required under Section 123 of the Transfer of Property Act, read with the definition of the word ‘attested’ in Section 3 of the said Act.
Final Decision: The court allowed the appeal, set aside the judgment and decree of the first appellate court, and restored the judgment and decree of the trial court, which had declared the deed of gift to be void and decreed the suit in favor of the plaintiff.
1. The second appeal is against a judgment and decree of reversal dated November 24, 2009 passed by the learned District Judge, Malda in O.C. Appeal No. 34 of 2009
2. The appellant filed the suit being O.C. Suit No. 130 of 2006 against the respondents, before the learned Civil Judge (Junior Division) Malda, claiming a declaration that the deed of gift dated November 14, 2013 disclosing herself as the donor and the respondent no. 2 as donee in respect of the suit property is void and not binding upon her, declaration for title and possession of the suit property and a decree for permanent injunction restraining the respondents from transferring the suit property. The suit property involved in this appeal is a mango grove comprising 7.59 acres of land, at Khotian no. 262, Dag no. 276, P.S. Englishbazar district, Malda, the State of West Bengal.
3. In the present case, I consider it would be convenient to refer to the parties by their array in the trial Judge.
4. The case set out in the plaint shows that according to the plaintiff the suit property exclusively belongs to herself and her name has been and still is recorded in the revenue records. She is an illiterate lady, she can only sign her own name; her husband had died long time back leaving behind herself, three sons and three daughters. She had reared up all her children and all the three daughters are married.
5. The defendant no. 1 is the youngest daughter of the plaintiff, the defendant nos. 2 and 3 are the son and husband respectively of the defendant no. 1. The plaintiff claimed that on July 1, 2006 when she visited the resident of the defendant nos. 1 and 3, they told her that on November 14, 2003 she had executed a deed of gift transferring the entire suit property to the defendant no.2, they are going to transfer the suit property to a third party and asked her to leave their house. The plaintiff alleged that she never had any intention to execute any gift deed in respect of suit property in favour of anyone and she had not executed the said gift deed dated November 14, 2003. It was the further case of the plaintiff that she used to frequently visit the resident of the defendant nos. 1 and 3 and she expressed her desire that in order to avoid any future dispute in respect of the suit property amongst her children, she had decided to prepare a Will and requested the defendant nos. 1 and 3 prepare such Will. According to the plaintiff, the defendant nos. 1 and 3 told her that they would arrange for preparation of the Will and she should not discuss with any of her sons and other daughters with regard to such Will. Since the plaintiff was an illiterate lady, she reposed her trust and faith upon the defendant nos. 1 and 3 and entrusted all responsibilities on them for preparation of the said Will. She used to trust the defendant nos. 1 and 3 and there was no suspicion in her mind. The plaintiff further claimed that the defendant nos. 1 and 3 produced typed document on a stamp paper describing the same to be her Will, obtained her signature on the said document and further told her that the said document will be registered within two or three days and when the Registrar would come to their residence, she should tell him that she had executed the said document on her own volition. The plaintiff alleged that she had no intention to execute any deed of gift in respect of the suit property, in favour of the defendant no. 2 and she signed the document on November 14, 2003 but the contents of the said document were not read out or explained to herself. On these averments made in the plaint, the plaintiff claimed the aforementioned relief in the suit, against the defendant nos. 1 to 3.
6. The defendants contested the suit and they jointly filed their written statement denying all material allegations made in the plaint. They alleged that the plaintiff used to reside with them frequently, but she never expressed any intention to prepare any Will in respect
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