A gift deed's execution need not be proved by attesting witnesses if not denied; the burden of proving fraud rests on the plaintiff, which was not established.

ORDER :

(ROBIN PHUKAN, J.)

Heard Mr. A. Ikbal, learned counsel for the appellant.

2. This second appeal, under Section 100 of the CPC, is directed against the judgment dated 18.12.2024, passed by the learned Civil Judge (Senior Division) No. 1, Kamrup(M), Guwahati, in Title Appeal No. 52/2019.

3. It is to be noted here that vide impugned judgment dated 18.12.2024, the learned Civil Judge (Senior Division) No. 1, Kamrup(M), Guwahati (‘first appellate Court’, for short) had upheld and affirmed the judgment and decree dated 27.11.2019, passed by the learned Civil Judge (Junior Division) No. 1, Kamrup(M), Guwahati (‘trial Court’, for short), in Title Suit No. 540/2009.

4. The background facts, leading to filing of the present appeal, are briefly stated as under:

“The appellant herein as plaintiff instituted a title suit, being Title Suit No. 540/2009, against Smti. Manjula Das as principal defendant No. 1, Shri Umesh Ch. Das as proforma defendant No. 2 and Shri Pranabjyoti Das as proforma defendant No. 3, for declaration, permanent injunction and cancellation of gift deed No.5062/2009, dated 11.05.2009, registered in the Office of the Sub-Registrar, Kamrup at Guwahati.

The case of the plaintiff/appellant herein is that her son, proforma respondent No.3 herein got married with the principal defendant No. st 1/respondent No. 1 herein, Smt. Manjula Das, on November 21 , 1993, and out of the said wedlock one girl, namely, Miss Mrinalini Das was born th on February 16 , 1995. The plaintiff is the owner of 2 kathas of land, covered by Dag No. 1513 of K.P. Patta No. 428 in Sahar Sarania, Part-II, under Ulubari Mouza, in the district of Kamrup(M), Assam, where a three- storeyed RCC building stands. However, the marriage between the proforma defendant No. 2 and principal defendant No. 1 was dissolved by th a mutual divorce decree on December 20 , 2002, and the custody of Smt. Mrinalini Das remained with her mother, principal defendant No.1, who left her matrimonial home in 1996 and has since lived with her family in Lachit Nagar, Guwahati. The principal defendant No. 1 used to visit the plaintiff and expressed a desire to return home and requested her to transfer the second floor of the plaintiff's house to her daughter, in line with Clause 9 of their divorce agreement. The plaintiff was willing to gift the th aforementioned property to her granddaughter and on May 11 , 2009, the principal defendant No. 1 informed the plaintiff that she had prepared gift deed and insisted that they should go to the Sub-Registrar's Office to execute a gift deed. Thereafter, believing the version of the principal defendant No. 1, the plaintiff and proforma defendant No. 3 signed the deed, believing it was for Mrinalini Das. However, when the plaintiff later requested a copy, she discovered that the gift deed was executed in favour of the principal defendant No. 1. The plaintiff alleged that the principal defendant No. 1 had committed fraud, taking advantage of the plaintiff's emotional attachment to her granddaughter. The plaintiff remained in possession of the property, which had not been handed over to the principal defendant No. 1, due to the alleged fraud, and that the plaintiff is not bound by the mutual divorce petition between her son, proforma defendant No.3 and daughter-in-law, principal defendant No.1 as she was not a party to it. The plaintiff alleged that the principal defendant No. 1 had committed fraud by having a gift deed executed in her favour instead of her daughter, Smt. Mrinalini Das.

Thereafter, being aggrieved, the pl