Admissibility of evidence under Section 68 of the Indian Evidence Act and the mental capacity of the donor at the time of execution.

Jyotirmay Bhattacharya, J.

This second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Fast Track Court, Chandernagore on 12th November, 2014 in Title Appeal No. 79 of 2011 reversing the judgment and decree dated 7th March, 2011 passed by the learned Civil Judge (Junior Division), 2nd Court, Chandernagore, Hooghly in Title Suit No. 108 of 2008 at the instance of the plaintiffs/appellants.

2. Let us now consider the merit of the appeal to find out as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure or not.

3. Here is the case where we find that the plaintiffs have filed a suit for declaration of their title in the suit property after setting aside the deed of gift executed by Birendra Nath Guchait in favour of the defendants on the ground that the said deed of gift was procured by the defendants from the said Birendra Nath Guchait by way of misrepresentation. The parties are closely related to each other. Defendants are the sons of Birendra Nath Guchait. Plaintiff no.1 is the widow of the predeceased son of Birendra Nath Guchait. Plaintiff nos. 2 and 3 are the son and daughter of the predeceased son of Birendra Nath Guchait. The legal heirs of the predeceased son of Birendra Nath Guchait filed this suit against the surviving sons of Birendra Nath Guchait.

4. The defendants contested the said suit by filing written statement denying the allegations made out by the plaintiffs in the plaint. Parties led evidence in support of their respective claims.

5. Learned Trial Judge after considering the pleadings of the parties and their evidence came to the conclusion that the deed of gift was not executed by Birendra Nath Guchait in favour of the defendants voluntarily and spontaneously. The learned Trial Judge, thus, held that the said deed of gift was procured by the dones by misrepresentation caused to have been done upon their father. Thus, the learned Trial Judge declared that the said deed of gift is void and collusive and the same has not been acted upon. Plaintiffs' one-fifth share in the suit property was declared by the learned Trial Judge.

6. Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Judge, the defendants preferred an appeal before the learned first Appellate Court. Learned first Appellate Court reversed the said judgment and decree of the learned Trial Judge by holding, inter alia, that the pleadings regarding execution of the deed of gift by the donor under misrepresentation and/or fraud having not been pleaded specifically and such pleading having not been made out in conformity with the provision contained in Order 6, Rule 4 of the Code of Civil Procedure, the learned Trial Court ought to have held that the evidence of fraud and/or misrepresentation led by defendants cannot be relied upon in view of the evasive pleading made out in the plaint.

7. The findings of the learned first Appellate Court regarding admissibility of the deed of gift in the absence of examining both the attesting witnesses, have also been challenged in this appeal.

8. Learned first Appellate Court held that in view of the provision contained in Section 68 of the Indian Evidence Act, 1872, a deed which is required to be attested can be admitted into evidence if the attestation of the said document is duly proved at least by one witness.

9. Here is the case, where we find that one of the attesting witnesses was examined at the instance of the defendants and execution of the deed of gift by Birendra Nath Guchait was duly proved by the said attesting witness. Thus, the learned first Appellate Court held that there was no irregularity and/or illegality in the process of admitting the deed of gift into evidence.

10. Learned first Appellate Court also recorded that the donor was a literate person and he consc