Calcutta High Court (Appellete Side)
Smt. Malina Jana & Anr vs Promoda Pakhira & Ors on 26 March, 2014
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Before:
The Hon'ble Justice Debangsu Basak
S.A. No. 440 of 1996
C.A.N. No. 2822 of 2010
Smt. Malina Jana & Anr.
Vs.
Promoda Pakhira & Ors.
For the Appellants : Mr. Mr. Jiban Ratan Chatterjee, Advocate
Mr. Hiranmay Bhattacharyya, Advocate
For the Respondents : Mr. Sabyasachi Bhattacharya, Advocate
Mr. Sagnik Chatterjee, Advocate
Heard on : March 19, 2014
Judgment on : March 26, 2014
DEBANGSU BASAK, J.
The defendants' second appeal was directed against a judgment of reversal. The suit was for declaration and injunction. The Trial Court dismissed the suit. The Appeal Court reversed the decision of the Trial Court and passed a decree in the suit.
Smt. Rohini Bala Pakhira died leaving behind four sons and two daughters as her heirs and legal representatives. The suit was between the heirs and legal representatives of Smt. Rohini Bala Pakhira. Smt. Rohini Bala Pakhira was the owner of Premises No. 62/1, Govindapur Road, Kolkata. The area of the premises was about 4 Kattahs with a building standing on 2 Kattahs and the remaining was vacant land.
In 1970, Rohini was living with her 3rd son. In 1971 she went to live with the eldest son at 39, Lake Gardens, Kolkata. She died on April 21, 1981. During her lifetime she executed a deed of settlement dated December 7, 1971 in respect of 62/1, Govindapur Road, Kolkata property. By such deed of settlement, she settled the two storied building in favour of one of her daughter and the vacant land in favour of the grandson (son of the eldest son). The grandson was minor at that point of time.
The plaintiffs obtained the certified copy of the deed of settlement dated December 7, 1971 on August 7, 1981. The plaintiffs filed the suit challenging the deed of settlement. The plaintiffs claimed that the deed of settlement was invalid, ineffective, fraudulent, collusive and not binding upon the plaintiffs. The plaintiffs claimed that, the deed of settlement was brought about by practising fraud and undue influence upon Rohini Bala Pakhira.
The defendants contested the suit. A joint written statement was filed. The defendants claimed that the deed of settlement was validly and consciously executed by Rohini Bala Pakhira. Such deed of settlement was acted upon. By virtue of such deed of settlement the defendants were the true and actual owners of the property in question. The defendants were in possession of the suit property.
Six issues were framed for the trial of the suit. The Trial Court found on appreciation of the evidence before it that, the plaintiffs failed to prove their case. The Trial Court dismissed the suit.
The plaintiffs preferred an appeal. The Appeal Court considered the contentions urged before it as well as the judgment under appeal. The Appeal Court found that Rohini Bala was an unlettered village woman and that undue influence was practised upon Rohini Bala to obtain the deed of settlement. The Appeal Court found that, the averments in the deed of settlement were not fair and that Rohini Bala did not execute the deed of settlement voluntary and consciously. The Appeal Court, therefore, decreed the suit in favour of the plaintiffs.
The present second appeal was admitted on September 2, 1994 and was directed to be heard on the ground nos. 5, 9 and 10 of the memorandum of appeal. Such grounds were held to raise substantial questions of law.
On behalf of the appellants it was contended that, Rohini Bala was the owner of the immovable property being the subject matter of the suit. In respect of the suit property she executed the deed of settlement dated December 7, 1971 voluntarily and consciously. On the execution of the deed of settlement and its registration, according to the appellants, the transfer of the immovable property in favour of the donees stood completed. The appellants relied upon Section 123 of the Transfer of Property Act. Reliance was placed on 2001 Volume 3 Supreme Court Cases page 179 paragraph 15 (Santosh Hazari v. Purushottam Tiwari), 2004 volume 1 Supreme Court Cases page 581 paragraphs 10, 11, 30 and 31 (K. Balakrishnan v. K. Kamalam & Ors. With K.Kamalam v. K. Balakrishnan & Ors.), 2003 volume 7 Supreme Court Cases page 683 paragraph 15 (M. Rangasamy v. Rengammal & Ors.).
The appellants contended that, the plaint did not contend necessary pleadings under Order VI Rule 4 of the Code of Civil Procedure, 1908 with regard to the alleged undue influence and misrepresentation. There was no evidence of any undue influence and misrepresentation.
It was submitted on behalf of the appellants that, Section 68 of the Indian Evidence Act, 1872 was not consider by the Appeal Court. The execution of the deed of settlement by Rohini Bala was witnessed by independent persons. Rohini Bala herself presented the deed of settlement for registration. Therefore, according to the appellants, Rohini Bala was never under any undue influence nor was Rohini Bala made to execute the deed of settlement on any misrepresentation.
The deed of settlement was duly registered under the provisions of Section 34 of the Registration Act.
The appellants claimed that, the suit was barred by the laws of limitation. The deed of settlement was executed and registered on December 7, 1971. Rohini Bala did not challenge the deed of settlement during her lifetime. Rohini Bala died on April 21, 1981. The suit was filed in 1982.
According to the appellants, the plaintiffs were not entitled to any relief in the suit inasmuch as the plaintiffs having admitted the execution of the document did not ask for cancellation of the same. Section 31(2) of the Specific Relief Act, 1963 and Section 19 of the Indian Contract Act, 1872 were relied upon. Reliance was also placed on 1977 Volume 1 Supreme Court Cases page 279 paragraphs 8 and 9 (Varanasaya Sanskrit Vishwavidyalaya & Anr. V. Dr. Rajkishore Tripathi & Anr.) and 2007 Volume 5 Supreme Court Cases 669 paragraphs 14 and 19 (P. Chandrasekharan & Ors. v. S. Kanakarajan & Ors.).
On behalf of the respondents it was submitted that, limitation under Article 59 would commence from the date of knowledge of the plaintiffs. The instant suit was filed admittedly within the period of limitation as prescribed under Article 59. The plaintiffs became aware of the deed of settlement in 1981 and filed the suit in 1982.
It was contended on behalf of the respondents that, all the endorsements on the deed of settlement were not proved and were not marked as exhibits. It was submitted that, the signatures of the attesting witnesses were not proved in evidence by the defendants.
On the contention that, Rohini Bala did not file any suit during her lifetime to challenge the deed of settlement, it was submitted that, Rohini Bala was under undue influence and therefore was not having any reasonable apprehension to file any suit.
According to the respondents, the provisions of Section 111 of the Indian Evidence Act, 1872 applied. The defendants were in a position to dominate the will of Rohini Bala. The onus was on the defendants to prove that Rohini Bala executed the deed of settlement on good faith. In the facts and circumstances of the instant case, according to the plaintiffs/respondents, the appellants failed to discharge such onus. It was contended that, Rohini Bala was illiterate. This was the consistent finding of the two Courts. These findings were not challenged. Once it was established that Rohini Bala was illiterate, the burden was on the defendants to prove that the deed of settlement was executed by Rohini Bala on good faith.
According to the respondents, provisions of Section 111 of the Evidence Act, 1872 applied. Appellants placed reliance on All India Reporter 2003 Supreme Court page 4351 paragraphs 12 and 13 (Krishna Mohan Kul & Anr. v. Pratima Maity & Ors.) and 1993 (1) Calcutta Law Times page 121 (Sk. Amiruddin Ali v. Kali Bala Bhunia) in that regard.
On behalf of the respondents it was contended that, factual findings returned by the appeal Court cannot be reopened in second appeal unless patent perversity and wrong application of law in the facts of the case were demonstrated. According to the respondents, no portion of the Appeal Court's judgment would be termed to suffer from any perversity. It could also not be said that, the Appeal Court applied any wrong principle of law in the facts of the case.
According to the respondents, the only possible substantial question of law that may arise in the second appeal was whether Sections 101 and 102 of the Indian Evidence Act, 1872 or Section 111 thereof applied in the facts and circumstances of the instant case.
I considered the two judgments of the Courts below, the materials on record and the respective submissions made on behalf of the parties. Admitted facts were that, by a partition deed of 1968 all the properties of the husband of Rohini Bala were distributed amongst the seven heirs, namely, Rohini Bala and her four sons and two daughters. The suit property was in the name of Rohini Bala. That Rohini Bala executed the deed of settlement dated December 7, 1971 was also admitted. So also was the fact that, Rohini Bala lived with her 3rd son in 1970 and she went to live with her eldest son in 1971. The son of the eldest son of Rohini Bala was one of the beneficiaries of the deed of settlement dated December 7, 1971.
The plaintiffs claimed that, the deed of settlement dated December 7, 1971 was obtained by undue influence. The Trial Court found that, necessary pleadings under Order VI Rule 4 of the Code of Civil Procedure, 1980 were not present in the plaint in that regard. The Trial Court also found that, the plaintiffs failed to establish any undue influence. On appeal, the Appeal Court found that the burden of proof that the deed of settlement was not obtained by undue influence was upon the defendants which the defendants failed to establish. The Appeal Court was of the view that undue influence was practiced upon Rohini Bala in obtaining the deed of settlement. The Appeal Court reasoned that undue influence was apparent from the contradictions and inconsistent versions in the recitals of the deed of settlement.
In Varanasaya Sanskrit Vishwavidyalaya (supra) Supreme Court was of the view that particulars of fraud or collusion were required to be given so as to satisfy the provisions of Order VI Rule 4 of the Code of Civil Procedure, 1908. Their Lordships were of the view that, it was not enough to state in general terms that there was collusion without more particulars.
The plaint, therefore, was required to be considered. On a meaningful reading of the plaint, it could not be said that the plaintiffs did not aver with sufficient clarity the ingredients of undue influence in the plaint. Whether the plaintiffs succeeded in proving the same was a different issue. In paragraphs 7, 8, 9 and 10 of the plaint, the plaintiffs averred that the deed of settlement was brought about by exercising undue influence and that Rohini Bala was made to put her left thumb impression on the deed of settlement without her understanding the contents thereof. Necessary averments being present, the plaint could not be faulted to say that the averments were vague.
The question of proving undue influence arose. The parties were at issue as to whether the plaintiffs were required to prove undue influence in terms of section 101 and 102 of the Indian Evidence Act, 1872 or were it for the defendants to establish that the deed of settlement was validly executed by Rohini Bala, in terms of Section 111 of the Indian Evidence Act, 1872. This gave rise to a substantial question of law.
The appellants contended, relying upon M. Rangasamy (supra) that, merely because the parties to the deed of settlement were related to each other or merely because the donor was old or of weak character, no presumption of undue influence would arise. In that case, the mother by deed of settlement gave the immovable properties to her son and not to the three daughters. The three daughters filed a suit for declaration. The Trial Court decreed the suit. The first Appellate Court dismissed the suit. On second appeal the High Court decreed the suit by presuming undue influence on the basis of the relationship between the parties. Their Lordships held that, the presumption made by the High Court on the basis of relationship was not warranted by law.
The appellants contended that, the first Appellate Court was in error presuming undue influence because of the relationship between the parties to the deed of settlement. According to the appellants, Sections 101 and 102 of the Indian Evidence Act, 1872 would apply rather than Section 111 thereof, in the facts and circumstances of the instant case.
The Appellate Court in its judgment noted that, Rohini Bala was living with the eldest son, the father of the donee no. 2 at the time when the deed of settlement was executed. The Appellate Court was of the view that undue influence was practised because the deed of settlement on a plain reading disclosed that, there were apparent contradictions and inconsistent versions at different parts of the deed of settlement.
The appellants contended that, there were no contradictions and inconsistencies in the deed of settlement. The deed of settlement was placed. By the deed of settlement, Rohini Bala retained life interest in the property. The donees would receive absolute right to the property subsequent to her death. At the same time, the donees would not be entitled to receive any usufruct from the property so long Rohini Bala was alive. The appellants contended that, a donor was well within her right make the provisions as done in the deed of settlement. Such provisions could not be termed to be inconsistent or contradictory.
The deed of settlement on meaningful reading did not disclose any term which was contradictory or inconsistent with each other. During the course of argument also no term of the deed of settlement was demonstrated to be contradictory or inconsistent by the respondents.
In view of the ratio of the M. Rangasamy (supra) the respondents were required to prove undue influence. The presumption of undue influence because of mere relationship between the parties would not suffice. The respondents failed to prove undue influence as held by the Trial Court. No material was shown in second appeal that the respondents proved undue influence apart from the presumption arising from the relationship between the parties. The presumption not being available to the respondents in this case, they were required to prove undue influence. Having failed to prove undue influence, they were not entitled to the decree as prayed for.
The respondents contended that, admittedly Rohini Bala was an illiterate woman. Relying on Sk. Amiruddin Ali (supra) it was contended on behalf of the respondents that, the protection in Indian law to a Pardanashin lady was extended to an illiterate woman. Therefore, the burden of proof shifted to the defendants to establish that, the deed of settlement was validly executed by Rohini Bala after understanding the contents thereof.
The facts of the case disclosed that, subsequent to the deed of settlement, the respective donees mutated their names in the records of the municipal Corporation and were paying the respective rates and taxes. Rohini Bala, therefore, during her lifetime allowed the deed of settlement to take effect. Rohini Bala, therefore, knew of the deed of settlement and its effect as she allowed the deed to take effect. In Sk. Amiruddin Ali (supra) the lady executing the deed challenged the same during her lifetime contending that, the deed was not a conscious mental act and therefore not binding on her. In such context the protection to a Pardanashin lady was extended to an illiterate lady. The facts of the instant case are different. Rohini Bala was not a pardanashin lady. She did not challenge the deed herself. Extending the protection available to a pardanashin lady to an illiterate lady should depend on the facts and circumstances of each case.
The appellants contended that, the finding of fact returned by the Trial Judge ought not to be interfered with in second appeal unless there was some special feature about the evidence of a particular witness which escaped the Trial Judge's notice or there was sufficient balance of improbability to displace his opinion as to where the credibility lay. Moreover while reversing a finding of fact the Appellate Court must come into close quarters with the reasoning assigned by the Trial Court and then assign its own reasons for arriving at a different finding. In the instant case, the Appeal Court was of the view that it was the burden of the defendants under Section 111 of the Indian Evidence Act, 1872 to establish that, the deed of settlement was executed by the donor in good faith. The Appeal Court invoked Section 111 of the Indian Evidence Act, 1872 on the presumption of exercise of undue influence in view of the near relationship between the parties to the deed of settlement. This presumption on the basis of relationship was not warranted by law as held in M. Rangasamy (supra). The reversal of the judgment of Trial Court by the Appeal Court, therefore, was on an erroneous application of law.
The appellants contended that, the mere fact that the property was transferred to a minor was not sufficient to question the transaction. Relying on K. Balakrishnan (supra) it was submitted that, there was no prohibition in law for transfer of property to a minor. Apex Court held that, in the case of a minor receiving a gift from the parents, no express acceptance would be expected and it was possible that acceptance could be implied even by mere silence or such conduct of the minor donee and his other natural guardian as not to indicate any disapproval or repudiation of it. In the instant case, the names of the donees were mutated in the records of the Municipal Corporation. There was no disapproval or repudiation thereof even after the minor donee became at major.
The appellants relied on P. Chandrasekharan (supra) for the proposition that, interpretation of the recitals contained in the documents was held to be involving a substantial question of law. They contended that, the reading of the deed of settlement by the Appeal Court was perverse and that a reasonable person of ordinary prudence would not take the view as taken by the Appeal Court in respect of the recitals contained in the deed of settlement. This according to the appellants gave rise to a substantial question of law within the meaning of Section 100 of the Code of Civil Procedure, 1908 warranting interference by this Hon'ble Court. I considered the various recitals of the deed of settlement. I did not find any contradictions or inconsistency as found by the Appeal Court. An owner was entitled in law to provide that she retained life interest in respect of the property settled and lay down terms and conditions as sought to be done in the deed of settlement under consideration. The Appeal Court was of the view, on reading the deed of settlement that it appeared to take effect at a subsequent date. According to the Appeal Court, some parts of the deed of settlement would take effect immediately on institution and other parts take effect at a subsequent date. The recitals of the deed of settlement were found not to be fair. The deed of settlement disclosed that, the same came into effect immediately on the execution and registration thereof. The donor retained her life interest and specified certain terms and conditions which would take effect after her demise. Reading the terms and conditions it could not be said that there were inconsistencies or contradictions or that some parts of the deed came into effect immediately and the others subsequently so as to render the entire deed bad in law.
One aspect of the facts emanating from the evidence adduced required consideration. Rohini Bala since 1971 was residing with her eldest son. She was residing in close proximity with her other three sons. None of the other three sons, as would appear from the evidence adduced, looked after Rohini Bala and her medical needs. In 1971 Rohini Bala shifted from her third son to the eldest son. She executed the deed of settlement on December 7, 1971. She was alive till 1981 when none of the other three sons looked after.
For the reasons as aforesaid, the second appeal succeeds. The judgment and decree under appeal is set aside. Title Suit No. 50 of 1982 is dismissed without any order as to costs.
In view of the second appeal being allowed no order need be passed on C.A.N. No. 2822 of 2010 which is disposed of accordingly without any order as to costs.
[DEBANGSU BASAK, J.]