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CASE NO.:

Appeal (civil) 7133 of 2003

PETITIONER:

KRISHNA MOHAN KUL @ NANI CHARAN KUL AND ANR.

RESPONDENT:

PRATIMA MAITY AND ORS.

DATE OF JUDGMENT: 09/09/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

JUDGMENT

2003 Supp(3) SCR 496

The Judgment of the Court was delivered by ARIJIT PASAYAT, J. : Leave

granted.

By the impugned judgment, learned Single Judge of the Calcutta High Court

held that the deed of settlement purported to have been executed by Dasu

Charan Kul (hereinafter referred to as the ’executant’) was a void and

invalid document. The fight between relatives of the executant centers

round a registered deed of settlement purported to have been executed on

11.7.1970 by the executant. A suit for declaration and permanent injunction

was filed by Pratima Maity, daughter of Pane Charan Kul, son of Dasarathi

Kul. The suit property originally belonged to Dasarathi Kul who died in the

year 1972. His Son Phani Charan Kul died in the year 1979. Averments in the

plaint were to the effect that on coming to know from the office of the

Block Land Reforms Officer that defendant No. 1 - Krishna Mohan Kul

(appellant No. 1 in the present appeal) had filed a registered deed of

settlement dated 11.7.1970 it was necessary to get the deed declared to be

void and invalid as the same was a forged document. There was no existence

of the witnesses whose names appeared in the said deed which was created to

grab the property of the plaintiffs. It was in this background alleged that

the deed of settlement was created by Krishna Mohan Kul (defendant No. 1)

with oblique motive. The contesting defendants took the stand by filing

written statements that the deed was perfectly in order and no illegality

was attached thereto. "

Before the trial Court several witnesses were examined to contend that the

executant was more than 100 years of age at the time of alleged execution

of the deed in question. He was paralytic and his mental and physical

condition were not in order. He was practically bed ridden with paralysis

and though his left thumb impression was stated to be affixed on the

document, there was no witness who could substantiate that in fact he had

put his thumb impression. That being the position, the deed was to be

declared as void and invalid. The contesting defendants took a stand that

it was not as if executant was not in a fit condition physically or

mentally at the time of execution of the deed. The trial Court disbelieved

the plea of plaintiffs and dismissed the suit.

Similar was the fate before the first Appellate Court. On being approached

by the plantiffs the following questions were framed by the High Court in

the Second Appeal :

"Whether the deed of settlement executed by the predecessor-in-interest of

the parties is valid in law". In fact, such substantial question of law

should also embrace the question as to whether the judgments of the courts

below are perverse in appreciating the said deed of settlement."

High Court took the view that the approach of both the trial Court and the

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first Appellate Court was erroneous. The following factual aspects were

considered relevant. Plaintiffs produced certified copy of the deed, while

defendants produced the original one. It was a deed of settlement where

Dasu Charan Kul was described as the donor, and curiously the donor and two

others namely Nani Charan Kul and his minor son Jagdish Kul. The L.T.I, was

identified by one Hriday Krishna Das. The deed was typed by one N.R. Dutta

and in the column meant for the names of witnesses, names of scribe Hriday

Krishna Das along with two others namely Nantu Bihari Ray and P.K. Maity

appeared. In the deed of settlement donor indicated his age to be 106

years. It was also indicated that he was becoming lackluster due to old age

and various ailments and for other mental shocks. According to High Court,

courts below wrongly placed