Calcutta High Court (Appellete Side)
Modanantak Pratap Singh And Ors vs Manwendra Pratap Singh And Ors on 25 February, 2009
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
Form No.J (2) IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
F.A. No.127 of 1992
Present:
The Hon'ble Mr. Justice Ashim Kumar Banerjee
and
The Hon'ble Mr. Justice Prasenjit Mandal
Modanantak Pratap Singh and Ors.
Versus
Manwendra Pratap Singh and Ors.
For the appellants: Mr. Jaharlal Dey,
Mr. Rabindra Nath Datta.
For the respondents: Mr. Sudish Dasgupta,
Mr. D. P. Mukherjee,
Mrs. Smritikana Mukherjee,
Mr. Debjit Mukherjee,
Mr Bhagbat Chowdhury.
Heard On:09.01.2009,05.02.2009,06.02.2009 & 11.02.2009.
Judgement On: February 25, 2009.
Prasenjit Mandal, J.: This appeal is at the instance of the
plaintiff and is directed against the judgment and decree dated
27.04.1989 passed by the learned Assistant District Judge,
Additional Court, Hooghly in Title Suit No.60 of 1988 whereby the
learned Trial Judge dismissed the suit.
The plaintiff/appellant filed the suit for declaration and
setting aside the two deeds of gift as described in the schedule C
& D of the plaint holding that the same were false, fraudulent,
collusive, invalid and done under coercion and undue influence and
also praying for restraining the defendant no.1 from interfering
with the plaintiff's possession of the properties described in
schedule A & B of the plaint and for other consequential reliefs.
According to the plaint case one Ram Pal Singh, since deceased,
was the owner of the suit properties. He had many properties at
Chandannagar in West Bengal and Protapgarh in Uttar Pradesh. He
belonged to Mitakshara School of Hindu Law. He died intestate in
1952 leaving behind the plaintiff as widow, only one son, Uday Raj
Singh and two daughters namely Raghupati Debi and Vidyabati Debi.
The daughters were married. The defendant no.1 is the wife of
Uday Raj Singh, son of Ram Pal Singh. The son of the plaintiff
looked after her and he held a Power of Attorney but subsequently
he was involved in debts and then in order to save the schedule A
& B properties of the plaint, one Title Suit No.54 of 1967 was
filed by the plaintiff for partition of the suit properties along
with other properties. The plaintiff became the absolute owner of
the suit properties mentioned in schedule A & B of the plaint by
the final decree of the said suit for partition. The plaintiff,
her son and defendant no.1 went to stay for some days at their
native village at Narharpur, Protapgarh, Uttar Pradesh and at that
place her son became ill and then the son went to her sister's
house at Protap Bahadur Park about 8 miles away from their native
village, Narharpur and stayed there for sometime. During such
temporary absence of the plaintiff's son, the defendant no.1 in
collusion and conspiracy with the defendant nos.2 and 3 hatched up
a plan to grab the property of the plaintiff. The defendant no.1
proposed the plaintiff to return to Chandannagar for her medical
treatment by their house physician, Dr. A. K. Sain, at Chinsurah.
They left Protapgarh at dead hours of night by a jeep for
Chandannagar as per arrangement of the defendant no.1. The driver
and another unknown person were in the said jeep. On the next
evening they reached Chandannagar. Because of jerks and jolting
of the vehicle and old age, the plaintiff became ill and she could
not move for two to three days. Dr. A. K. Sain was not called for
her examination at all. On the other hand, in one afternoon when
the plaintiff was in her bed, the defendant no.1 and an unknown
person wanted to take few thumb impressions of the plaintiff on
some papers. Beside the defendant no.1, nobody known to the
plaintiff was present. On being asked the defendant no.1 told her
that a Power of Attorney for looking after the properties was
being executed. The plaintiff disagreed to put her left thumb
impression on such papers. But she was threatened with dire
consequences. Ultimately the plaintiff was compelled to put her
L.T.Is. on some papers. The contents of those papers were not
read over and explained to her. She had no independent advice for
taking her L.T.Is. on those papers. Then defendant no.1 and other
persons left the room. Thereafter the plaintiff informed her son
to come to Chandannagar. After a few days, she told him
everything when he came. The son of the plaintiff made enquiries
and came to know that the defendant no.1 procured two deeds of
gift in her favour in respect of the suit properties. The deeds
of gift laid down that one Harikesh Bahadur Singh of Aurangabad
read over and explained the deed to her but he was not known to
her at all. The deeds of gift were not properly executed at all
and so they were void. The defendant no.1 had also executed and
registered a deed of lease in favour of the defendant no.2 for
five years in respect of the properties mentioned in schedule B
without any premium. The previous lease under the plaintiff had
already expired in respect of those properties and the defendant
no.2 was asked to vacate the properties.
The defendant no.1 contested the suit stating, inter alia,
that her husband, i.e., son of the plaintiff was not a person of
good moral character. The plaintiff was afraid of her son. So in
order to protect the suit properties from the clutches of her son
she had gifted the same in favour of her son's wife. The deeds of
gift were properly executed. The defendant no.1 took possession
of the same. So the suit should be dismissed.
Considering the evidence on record, the learned Trial Judge
dismissed the suit on contest. Being aggrieved by the said
judgment and decree, this appeal was preferred by the plaintiff.
Upon hearing the submissions of the learned Advocates of both
the sides and on perusal of the materials on record, we find that
admittedly Ram Pal Singh was the original owner of the suit
properties as described in the schedule of the plaint.
Admittedly, he died in 1952 leaving his wife, Isharaji Debi, one
son, Uday Raj Singh and two daughters namely Raghupati Debi and
Vidyabati Debi. Admittedly, Uday Raj Singh and the two daughters
were married in or around 1941. Admittedly, Uday Raj Singh was
issueless and he died within or about three months after the date
of filing the suit. Admittedly, the married daughters had been
residing in their in-laws' house and they are now dead.
Admittedly, Isharaji Debi died in February, 1986. After death of
Isharaji Debi, Bidyabati Debi was substituted for the plaintiff.
Raghubati Debi was mentioned as defendant no.4. But she did not
contest the suit by filing any written statement of defence.
Admittedly, one partition suit was held between Isharaji Debi, her
son Uday Raj and others and as per final decree for partition,
Isharaji Debi became the absolute owner of the suit properties.
Admittedly, the original plaintiff and her son sometimes resided
at their house at Chandannagar, Hooghly and, sometimes at
Narharpur, under Protapgarh, Uttar Pradesh. Admittedly, Isharaji
Debi put her L.T.Is. on the two deeds of gift marked exhibit G &
G-1 purported to have been made in favour of the defendant
no.1/Ashawati Debi, wife of Uday Raj Singh. Admittedly, Isharaji
Debi was old and illiterate at the time of alleged execution of
the two deeds. Now the main issue is whether the plaintiff
executed the two impugned deeds of gift G & G-1 on her own
volition or under coercion, undue influence, compulsion, etc.
The learned Senior Advocate, appearing for the appellants,
submitted that the impugned deeds had not been executed by the
original plaintiff out of own volition and that there was no
independent advice to her. Even there was no mental act on the
part of the donor at the time of execution of the two deeds of
gift. He contended before us that before execution of the two
deeds of gift they went to Protapgarh and Uday Raj Singh became
ill. So he was taken to the house of his sister, Vidyapati Debi.
At that time, during his absence, the donor was taken by the
defendant no.1 and her men to Chandannagar. She was forced to
sign on the deeds of gift under coercion and undue influence and
even on physical assault. He also contended that Isharaji Debi
was ill after a long travel from Protapgarh to Chandannagar which
was about 600 miles away. Isharaji Debi was not examined by their
physician, Dr. A. K. Sain or any other doctor. On the other hand,
she was compelled to put her L.T.Is. on some papers purported to
have been made as deeds of gift. So, the donee was required to
show that execution of the deeds had been done properly.
On the other hand, the learned Advocate for the defendant
no.1/respondent no.1, contended that the deeds of gift had been
properly executed. One Chunilal Ghosh, an Advocate, was the
lawyer of Isharaji Debi. He was called in the house of Isharaji
Debi on the day previous to the date of execution of the deeds of
gift dated 15.05.1982. He was told about the purpose of
preparation of the deeds of gift and he was handed over the
particulars of the properties, that is, copy of partition decree
and other papers. One Moloy Kr. Ghosh, a law clerk cum deed
writer, prepared the draft. It was read over and explained to
Isharaji Debi. When she consented, the deeds of gift had been
prepared on the stamp paper and then execution and registration of
the two deeds had been done at the premises of Isharaji Debi as
she was a pardanasin lady. The two deeds were properly read over
and explained by one Harikesh Bahadur Singh, now dead. The donee
accepted the gift. Thereafter another deed of lease was executed
in favour of the defendant no.2 by the defendant no.1 in respect
of schedule property. So the deeds of gift had been properly
made. The learned Trial Judge rightly dismissed the suit.
On hearing rival contentions of the parties on the matter in
issue before us and on careful consideration of the evidence of
the donor on commission, we find that the evidence of the donor
was trustworthy for the following reasons:
The donor herself adduced evidence to the effect that she did
not put her L.T.Is. on realising the nature of the papers on which
she had put her L.T.Is. She stated that she was taken to
Chandannagar by a jeep for her treatment by Ashawati Debi but no
treatment was done. In this regard, Ashawati Debi was not in a
position to show by any convincing evidence that Isharaji Debi was
examined by their house physician, Dr. A. K. Sain or any other
doctor. Ashawati Debi arranged for the jeep for journey, though
Isharaji Debi was guite old at that time and Protapgarh was 600
miles away from Chandannagar. The donee did not arrange for
travel by train. That could happen when there was an urgency on
the part of the donee to have the deeds anyhow. Ashawati Debi
contended that Isharaji Debi asked Ramesh Chandra to prepare the
deed but that was totally denied by the donor. She stated
unequivocally that she was beaten by Ashawati Debi with a stick
and that she was forced to put her L.T.Is. by Ashawati Debi. Even
nobody read over the contents of the deeds to her. She
categorically stated that her son was a smoker but he did not
drink. The fact that she was forced to put her L.T.Is. on some
papers appears to us to be convincing because of the fact that as
per her evidence immediately after putting her L.T.Is. on some
papers, she called her son who was then convalescing at his
sister's house at Protap Bahadur Park. The son came and searched
for the documents which had been prepared and on realizing the
facts Isharaji Debi filed the suit within about three months from
the date of execution of the deeds of gift. Specific question was
put to Isharaji Debi as to whether any other person save Ashawati
Debi was present at the time of taking her L.T.I. forcibly. She
stated that she did not know who else was present but someone was
standing and she could not tell his name. That person who was
standing might be the local Sub-Registrar or any person on his
behalf for the purpose of execution and registration of the deeds
of gift. She had explained clearly why she filed the suit for
partition to protect the properties from the hands of her son as
her son was laundering his paternal properties. From the evidence
on record, it transpired that her son was indebted for about
two/three lac and so such step taken by Isharaji Debi could well
be understood. Isharaji Debi denied the suggestion that she wanted
to make gifts of the entire properties to Ashawati Debi by
executing the deeds of gift. Even she denied the suggestion that
previously she executed Wills in favour of Ashawati Debi. In this
regard, we do not find from materials on record that Ashawati Debi
was able to produce any original Will. According to her, Isharaji
Debi executed a Will previously in her favour and for the second
time, she executed a registered Will in favour of Ashawati Debi.
The first Will was not produced. The original registered Will
purported to have been executed by Isharaji Debi in favour of
Ashawati was not also produced. Only one certified copy of the
same was produced and marked 'x' for identification. It is not
clear by any convincing evidence why Ashawati Debi failed to bring
the subsequent registered Will. The contention of Ashawati Debi
was that a false suit had been filed against her because she did
not transfer the properties obtained by her by the deed of Will in
favour of her husband, Uday Raj Singh. That contention of the
donee, we hold, could not be accepted because unless and until
Isharaji Debi expired Ashawati Debi could not acquire the property
by the Will executed by Isharaji Debi. So the contention that for
non-transfer of property by Ashawati Debi in favour of Uday Raj
Singh a false suit had been filed, cannot be accepted. Isharaji
Debi denied the suggestion that the Sub-Registrar asked her about
execution of the two deeds of gift. She clearly stated that she
did not give any false statement. On careful scrutiny of her
evidence, we do not find anything to shake the credence of her
statement save on some minor points. Therefore, we hold that her
evidence is trustworthy and it should be accepted.
P.W. 2, Bidyabati Debi, was the substituted plaintiff after
death of Isharaji Debi. She was examined as P.W. 2. She stated
that Uday Raj Singh went to her house from Narharpur. At that
time, the defendant no.1/respondent no.1 did not accompany. Nor
did her mother accompany him in 1982. Uday Raj Singh stayed at
her house for about 15/20 days and at that time the impugned deeds
were executed. She was cross-examined in details and nothing
could be elicited so as to shake her evidence. She clearly stated
that there was good relation between the plaintiff and Uday Raj
Singh. But there was not so good relation between Ashawati Debi
and Uday Raj Singh as was expected in the case of a husband and
his wife. Her evidence inspires confidence and from her evidence
it is clear that while Uday Raj Singh stayed at her house, at that
time the donor and the donee went to Chandannagar from Narharpur
by a jeep.
P.W. 3, J. Singh, appeared to be the man who worked in the
house of Uday Raj Singh at Narharpur. He supported the plaint
case that the donor and the donee came to Chandannagar from
Narharpur for medical treatment by a jeep and at that time Uday
Raj Singh stayed at Protapgarh Bahadur Park for treatment i.e. in
the house of Vidyapati Debi. So from his evidence it is clear
that Uday Raj Singh did not accompany the donor and donee for the
journey from Narharpur to Chandannagar and that the journey was
intended for medical treatment of Isharaji Debi. Though he
appears to be an interested witness, yet his evidence appears to
be convincing and is in conformity with the evidence of the P.W.
Nos.1 and 2. Therefore, we hold that there is nothing to
disbelieve him on the matter he had deposed.
The D.W. 1 is Ashawati Debi, donee of the two deeds. She
herself admitted that there was no good relation with her husband.
She contended that the impugned deeds of gift had been executed at
the instance of the donor and she arranged everything including
engagement of a lawyer, purchase of stamp papers, etc. But on
scrutiny of her evidence, we are of the view that her evidence is
doubtful. According to her statement in December, 1981 Isharaji
Debi executed a registered deed of Will in her favour in respect
of the suit properties. She also contended that previously
Isharaji Debi executed another Will in her favour in respect of
the suit properties. Dispute with Uday Raj Sngh arose when Uday
Raj Singh asked her to transfer the properties obtained by Will in
his favour and she did not agree. That is why, Uday Raj Singh
assaulted her. That contention of the donee, we hold, could not
be believed at all. When a Will was executed, title did not pass
automatically at that very moment. Title would pass upon death of
the executant of the Will. The legatee had to obtain a probate of
the Will. Then and then the legatee might be able to transfer the
property in favour of any person of his/her choice. Moreover, if
the registered deed of Will was executed as per contention of
Ashawati Debi in December, 1981, that is, at the fag end of the
life of Isharaji Debi, there was no need/occasion to execute deeds
of gift again over the self-same properties within six months in
favour of the same person. In fact, the registered deed of Will
was not produced before the Trial Court. One certified copy of
the purported Will was produced and that was marked 'x' for
identification. Isharaji Debi denied execution of such Wills in
favour of Ashawati Debi. The statement of a witness who had taken
an unbelievable defence could not be believed.
As regards execution of the impugned deeds, the donee stated
that during stay at Narharpur, the donor asked her to take her to
Chandannagar for gift. That statement of the donee, we hold,
could not be believed because at that time the son of the donor
was residing at her sister's house at Protap Bahadur Park which
was just eight miles away from Narharpur. Another sister of Uday
Raj Singh namely, Raghupati Debi was also residing in Uttar
Pradesh. When Isharaji Debi asked Ashawati Debi to take her to
Chandanagar for execution of the so-called deeds of gift, we find
from the very statement of Ashawati Debi that neither Uday Raj
Singh nor his sisters or any member from the family of Bidyabati
Debi and Raghupati Debi was present. So it could well be presumed
that at the time of expressing such opinion, no such close
relations who were to get the properties of Isharaji Debi after
her death, were present. So from this fact alone it could well be
decided that there was no independent advice to the donor for
execution of the deeds of gift.
Admittedly, Uday Raj Singh normally lived at the premises at
Chandannagar. But this property was also given to Ashawati Debi
by the deeds of gift without any consultation with him. There is
no evidence that after arrival at Chandannagar Isharaji Debi was
examined by Dr. A. K. Sain or any other physician. On the other
hand, we find that arrangements were made for execution of the
deeds of gift and another deed of lease. As per evidence of
Ashawati Debi, Isharaji Debi asked one Advocate namely Chunilal
Ghosh to prepare the deeds of gift and she gave particulars.
Chunilal Ghosh prepared the deeds but the impugned deeds exhibit G
& G-1 do not lay down anywhere the name of the Advocate Chunilal
Ghosh. As per her evidence supported by D. W. Nos.2 and 3,
Chunilal Ghosh (since deceased), Advocate, the donor and the donee
were present at the time of holding talks for preparation of the
deeds of gift. This fact clearly shows that Isharaji Debi was not
given any independent advice by any person at the time of
preparation of the deeds. The witnesses examined by Ashawati
Debi, we find, are all interested. Though Raghupati Debi was the
sister of Uday Raj Singh, we find that she always stayed with
Ashawati Debi while at Chandannagar. Raghupati Debi stated that
her mother told her that she gifted property to Ashawati Debi.
Her statement to this effect, we hold, could not be believed at
all because though Isharaji Debi was cross-examined in details
there was no whisper in her statement that she told such fact to
Raghupati Debi. Therefore, we hold that her evidence is not
believable.
D.W. 4, Kalu Yadav, is another witness residing at Nima,
Dist.- Protapgarh. He did not tell anything about attestation.
He stated simply that there was no good relation between Ashawati
Debi and her husband.
D.W.5, Moloy Kumar Ghosh, was a law clerk cum deed writer.
He was an attesting witness to the deed. He stated that according
to instruction of the lawyer, Chunilal Ghosh, he prepared the
draft copy of the deeds of gift. Thereafter they went to the
house of Isharaji Debi and Chunilal Ghosh read over and explained
the same to her. She paid money to purchase stamp paper, etc. On
the next date, the deeds of gift were prepared and they again went
to the house of Isharaji Debi whereat the deeds of gift had been
executed and registered on commission. Chunilal Ghosh is dead and
as observed earlier there was no whisper in the deed that Chunilal
Ghosh had any role in the preparation of the deeds. As per
contents of the deeds, one Harikesh Bahadur Singh identified the
donor and he was also an attesting witness to the deeds. Harikesh
Bahadur Singh is now dead as per evidence on record. As per
evidence of the donee, what was surprising is that though the
deeds were prepared at Chandannagar and the donee claimed that
Harikesh Bahadur Singh resided at Lakhraj Bhavan, that is, at the
suit properties and that he ran a transport business, there was no
iota of evidence on this regard. On the other hand, Harikesh
Bahadur Singh had put his signature as an attesting witness
describing his address at Narharpur, Protapgarh. This casts a
doubt why Harikesh Bahadur Singh put his address of Protapgarh if
he actually stayed at the house in suit. The donee could not
produce any paper that he was a tenant under the parties to the
deeds of gift. No paper was produced by the donee that Harikesh
had any transport business at Chandannagar. So there is every
doubt if Harikesh Bahadur Singh stayed ever at Chandannagar.
Rather the deeds of gift revealed that Harikesh Bahadur Singh was
a residence of Narharpur, Protapgarh. The donor stated in her
evidence that beside the driver of the jeep another unknown person
was in the jeep. So that unknown person might be Harikesh and he
was a man of the donee from Narharpur.
What was more surprising was that according to the evidence
of the attesting witness, D.W.5 when Chunilal Ghosh (an Advocate)
was taking notes at the time of conversation with Isharaji Debi,
Ashawati Debi was present there signifying the fact that except
Ashawati Debi no other person was present at the time of
preparation of the deeds of gift. From such fact it could be
ascertained that no independent advice was tendered to the donor
at the time of execution of the deeds of gift.
D.W.6, Ramesh, we find, is a person working under the donee
and there is no convincing evidence that he worked under the
donor. Suggestion was given to the donor to that effect and the
donor denied. So such admission of the donee goes against her
implying that Ramesh was an employee of the donee. He was not a
witness to the deeds of gift. He stated that there was no good
relation between Ashawati Debi and Uday Raj Singh but there was
good relation between the donor and the donee. So evidence of
such person, we hold, should not be believed.
As the donor was illiterate and old and as the parties to the
deeds of gift were in a fiduciary relation - one being able to
dominate the Will of the other, the donee was bound to prove that
the donor had competent and independent advice to execute the
deeds. The donee was also bound to prove that the donor had the
mental act to execute the deeds of gift independently. But from
the admission of the donee herself as stated above, it was clear
that except the donee no other person was present at the time of
preparation of the deeds of gift or subsequent execution and
registration of the transaction.
Our observations get support from the decision reported in
(2004) 9 SCC 468. In the instant suit though normally the parties
to the deed of gift resided at Chandannagar specially Uday Raj
Singh stayed at Chandannagar, at the time of execution and
registration of the transaction, we find that there was none to
give independent advice to the donor except some men of the donee
who hailed from Narharpur, Protapgarh.
The donor stated in her deposition that she was forced to put
her L.T.Is. on the deed under coercion and under influence.
The evidence on record revealed that Moloy Kr. Ghosh, D.W.5,
took steps for execution and registration of the transaction and
he filed an application before the concerned Sub-Registrar for
registration of one deed of gift at the house of the donor at
Chandannagar vide Exhibit 3a. He deposited requisite money for
execution and registration of the transaction on commission. But
in fact we find two deeds of gift and another deed of lease by
Ashawati Debi in favour of the defendant no.2 who was a previous
tenant, had been executed on commission and the attesting
witnesses were the same in respect of such deeds. This fact also
proves that the real transactions were not also brought to the
notice of Isharaji Debi.
Upon careful scrutiny of the evidence on record, we are of
the view that the following facts and circumstances have emerged
from the record:
i) The donor, the donee and one Advocate namely Chunilal
Ghosh were present at the time of preparation of the
draft deeds of gift.
ii) After execution and registration the donor intimated her
son, who came to Chandannagar and took steps for search
etc., about the deeds. That fact signified that the
donor suspected about taking her L.T.Is. on some papers
whether on blank or written for conversion of certain
documents prejudicial to her.
iii) Within three months of the execution of the deed, the
donor filed the suit for declaration, cancellation of
the deeds etc. signifying that she took prompt action
for cancellation on realising that certain transactions
had been caused to be done by the donee and others on
which the donor had no support.
iv) The donor deposed on commission denying execution of the
deeds of gift. Her evidence was convincing and
trustworthy. She stated that she had put her L.T.Is. on
some papers under coercion, undue influence, etc.
v) From Narharpur to Chandannagar the donor was taken by
the donee and some of her men at night by a jeep to
travel 600 kilometers to make something hurriedly.
vi) Though the donor was told that she was being taken to
Chandannagar for her medical treatment but in fact, no
medical treatment was ever done at all at Chandannagar.
vii) The donee took the opportunity of illness of her husband
and absence for a very short period of about 15/20 days
from their house at Narharpur. He was not told about
the fact that of taking his mother to Chandannagar.
Even those two sisters who also resided in Uttar Pradesh
were not informed at the time of taking the donor to
Chandannagar from Narharpur and preparation of the deeds
of gift at Chandannagar.
viii) At the time of taking the donor from Narharpur to
Chandannagar Uday Raj Singh was at his sister's house at
Protap Bahadur Park just eight miles away and he was
convalescing at that period but neither the sister nor
Uday Raj Singh was consulted for taking the donor to
Chandannagar.
ix) The evidence of the donee relating to transactions is
not trustworthy.
x) Immediately, on getting information, Uday Raj Singh came
to Chandannagar and enquired the fact. Then on being
realised about the execution of the transactions the
donor took necessary steps for cancellation of the two
deeds of gift.
xi) If the deeds are perused, it would appear that the deeds
laid down several properties valued several lac, but the
two deeds had been prepared on under-valued stamp paper
of Rs.45,000/- each only. That fact proved that the
donee was in a hurry to have the deeds without delay for
any moment further.
xii) D.W.5, M. K. Ghosh applied for execution and
registration of one deed of gift (vide exhibit 3a) but
in fact on that day two deeds of gift were purported to
have been executed by the donor and another deed of
lease was also prepared and executed by Ashawati Debi
and the attesting witnesses of the three deeds were the
same persons.
xiii) The fact that the relation between the donee and
her husband was not good, was proved by overwhelming
evidence on behalf of both the sides. The donor proved
that she had no good relation with the donee and that
fact was supported by the reliable evidence of P.W.2 and
3 as discussed earlier. The relation between Isharaji
Debi and Uday Raj Singh was very good and cordial.
Admittedly, Uday resided at Chandanagar. That property
too, was gifted by the so-called deeds of gift without
consent of Uday Raj Singh. So it is difficult to
conclude that in spite of such strained relation the
donor would give several properties to the donee without
any discussion with Uday Raj Singh.
xiv) The donee alleged that Chunilal Ghosh did everything but
the deeds did not indicate that he had prepared, read
over and explained the deeds to the donor.
xv) As per contention of the donee, in December, 1981 the
donor executed a registered deed of Will in respect of
the suit properties in her favour. At that time, the
donor was at the fag end of her life and in fact she
died in February, 1986. The donee also claimed that
previously the donor executed another Will in her favour
in respect of the suit properties. If the donor
executed a registered Deed of Will in favour of the
donee in respect of the suit properties, at the fag end
of her life, she was not required to execute other two
deeds of gift in respect of the selfsame suit properties
within six months of the execution of the so-called
registered deed of Will and
xvi) The donor was an old and illiterate lady. The donee
being in a fiduciary position to dominate her Will, she
was bound to prove that the execution of the two deeds
of Will was intelligent one and that there were
independent advice and mental act of the donor to
execute the deeds of Will voluntarily in favour of the
donee. But the donee had failed to discharge that
burden of proof.
In consideration of the above facts and circumstances, we are
of the view that the donor did not execute the transaction out of
her own volition but under coercion and undue influence created
upon her by the donee. Consequently, no title in respect of the
suit properties could pass in favour of the donee at all. As a
result, the execution of the deed of lease in favour of the
defendant no.2 by the defendant no.1 could not be valid. We
conclude that the two impugned deeds exhibit G & G-1 purported to
have executed by the plaintiff/Isharaji Debi were vitiated by
fraud, collusion, coercion and undue influence. The two deeds of
gift were not the outcome of mental and physical acts of the
donor. They are, therefore, void, invalid and inoperative. So
the inferences drawn by the learned Trial Judge, we hold, are
erroneous.
Accordingly, we hold that the plaint case has been duly
proved by convincing oral, documentary and circumstantial
evidence. But unfortunately, the learned Trial Judge decided the
issues without proper appreciation of the evidence on record. The
suit should have been decreed instead of dismissal of the same.
The donee did not acquire any right, title and interest over the
suit properties by way of the so-called impugned deeds of gift
exhibit G & G-1. The plaintiff was, therefore, entitled to get
decree and reliefs as prayed for. The impugned judgment and
decree passed by the learned Trial Judge cannot be upheld.
So the appeal succeeds. It is allowed. The judgment and
decree dated 27.04.1989 passed by the learned Assistant District
Judge, Additional Court, Hooghly is hereby set aside. The suit
stands decreed on contest with costs against the defendant nos.1,
2 and 3 and ex parte without costs against the defendant no.4.
The plaintiff do get decrees in terms of prayer (a), (b), (c)
and (e) of paragraph 21 of the plaint as appearing in page no.21
of the Paper Book. Draw up decree accordingly.
Considering the circumstances, there will be no order as to
costs.
Interim order, if any, is hereby vacated.
Urgent xerox certified copy of this order, if applied for, be
made available to the learned Advocate for the parties on their
usual undertakings.
Ashim Kumar Banerjee, J.
I agree, [Ashim Kumar Banerjee, J.] [Prasenjit Mandal, J.]