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IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT PORT BLAIR
Hiranmay Bhattacharyya, J.
Shri Usman Ali and others - Appellants
Versus
Smt Champa Devi and others - Respondents
SA/1/2019 With SA/2/2019
Decided On : 12-02-2024
Property Dispute - Evidence Act, 1872 - Sections 68 - The court allowed Title Appeal No. 3 of 2013, setting aside the judgment and decree passed by the Trial Court, decreed Title Suit No. 37 of 2011, and directed the respondents to quit and vacate the 'B' schedule property and pay damages. Title Suit No. 4 of 2013 was dismissed. The court held that the execution of the gift deed was proved, and the gift deed gave absolute right over the property to Shiv Shankar Mishra. The court also held that the execution of the registered WILL was not proved in accordance with the law.
Fact of the Case:
The case involved a property dispute between the legal heirs of Shiv Shankar Mishra and Sakina Bibi over the ownership of a property. The plaintiffs claimed title to the property based on a gift deed executed by the original owner, Jaibasi, and the defendants claimed ownership based on a registered WILL allegedly executed by Jaibasi.
Finding of the Court:
The court found that the execution of the gift deed was proved, giving absolute right over the property to Shiv Shankar Mishra. However, the court held that the execution of the registered WILL was not proved in accordance with the law.
Issues: The main issues revolved around the validity of the gift deed and the registered WILL, and whether the court erred in discarding the evidence of the Handwriting Expert and in decreeing the suit without substituting the legal heirs of a deceased respondent.
Ratio Decidendi: The court held that the execution of the gift deed was proved based on direct and substantive evidence, and the opinion of the handwriting expert was rightly discarded. The court also ruled that the failure to substitute the legal heirs of a deceased respondent did not result in abatement of the action.
Final Decision: The court dismissed the appeals, directed the necessary amendments in the decree, and ordered the transmission of the records to the Court of the learned Additional District Judge, Port Blair.
JUDGMENT :
HIRANMAY BHATTACHARYYA, J.
1. These appeals are directed against the common judgment and separate decrees dated January 10, 2018 passed by the learned Additional District Judge Andaman & Nicobar Islands Port Blair in Title Appeal No. 03 of 2013 heard analogously with Title Appeal No. 04 of 2013. By the said judgment and decree, Title Appeal No. 03 of 2013 was allowed on contest and the Title Appeal No. 04 of 2013 was dismissed on contest.
2. One Shiv Shankar Mishra i.e predecessor-in-interest of the respondents herein filed a suit for declaration of title over schedule A property and for recovery of possession and damages in respect of B Schedule property against Sakina Bib i.e predecessor-in-interest of the appellants herein. The said suit which was originally registered as Title Suit No. 11 of 1989 was renumbered as Title Suit No. 37 of 2011.
3. The case of the plaintiff in Title Suit No. 37 of 2011 is that the suit property originally belong to one Smt.Jaibasi who transferred the same in favour of Shiv Shankar Mishra by dint of a registered deed of gift executed on 27th September, 1985. Smt. Jaibasi was permitted to live in one room of the wooden house till her death. One Sakina Bibi claiming herself to be a distant relative of Jaibasi came to see her at the suit property before the death of Jaibasi and continued to stay there in a portion of the suit house which has been described in schedule B of the plaint. After the death of Jaibasi, Sakina Bibi claimed herself to be the owner of the property left by Jaibasi. The plaintiff requested the defendant to vacate the B schedule property and also issued a notice calling upon her to quit and vacate the said property. Since the defendant failed to comply with the terms of the said notice, Shiv Shankar Mishra filed the suit.
4. Sakina Bibi filed a suit for declaration of title and for a further declaration that the registered WILL executed on of 9th November, 1989 by late Jaibasi is a valid WILL, for recovery of possession of the suit property and for cancellation of the gift deed allegedly executed by late Jaibasi in favour of Shiv Shankar Mishra.
The said suit which was originally registered as Title Suit No. 17 of 1996 was subsequently renumbered as Title Suit No. 21 of 2011.
5. The case as made out in the plaint of Title Suit No. 21 of 2011 is that Jaibasi was a recorded tenant of the suit land along with the building standing thereon. Shiv Shankar Mishra was a tenant under Jaibasi in respect of a portion of the suit property. After the death of Shiv Shankar Mishra his heirs who are the defendant in the said suit continued to reside in the tenanted premises. It was stated that Jaibasi executed a WILL in respect of the suit property which was registered on 9th of November 1987 appointing Sakina Bibi and her son Usman Ali as joint executors and trustees of the said WILL. Sakina Bibi became the owner of the suit property by virtue of the said WILL.
6. The defendants of Title Suit No. 37 of 2011 contested the said suit by filing a written statement denying the allegations contained in the plaint. The specific defence case is more or less similar to the plaint case in Title Suit No. 21 of 2011.
7. The defendants of Title Suit No. 21 of 2011 contested the said suit by filing a written statement denying the material allegations contained therein. The specific defence case is more or less similar to the plaint case in Title Suit No. 37 of 2011.
8. Both the suits were heard analogously and the learned Trial Judge by a common judgement and separate decrees dated February 21, 2013 dismissed both the suits.
9. The learned Trial Judge held that the plaintiffs of Title Suit No.37 of 2011 failed to prove that Jaibasi executed the deed of gift in favour of Shiv Shankar Mishra in respect of the suit property. The learned Trial Judge further held that Sakina Bibi being the plaintiff of Title Suit no. 21 of 2011 failed to prove that she became the owner of the suit property by virtue of the alle
The main legal point established in the judgment is that the execution of a gift deed and a registered WILL must be proved in accordance with the law, and expert evidence of handwriting is not conclu....
The burden of proof for executing gift deeds rests on the proponent, especially when the grantor is vulnerable due to age or literacy, necessitating clear evidence of understanding.
The validity of gift deeds executed by an illiterate Pardanashin woman requires clear evidence of conscious execution and understanding; the burden remains on the propounder in the absence of explici....
The validity of a will is undermined when it is executed under suspicious circumstances, necessitating the propounder to dispel these doubts for the document to be accepted legally.
(1) Appellant has failed to make out a case for production of additional evidence.(2) It is well settled that the onus to prove a Will is on the propounder.(3) No assertion as to from which point of ....
The court ruled that a gift deed requires valid execution, while stating possession need not be transferred for validity, and that unprobated wills are valid in specific jurisdictions under the India....
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