Calcutta High Court (Appellete Side)
Pari Bibi & Ors vs Sg Jamana Bibi & Ors on 27 September, 2022
SA 167 of 2012
Item-12.
27-09-2022
Pari Bibi & Ors.
Versus
sg Jamana Bibi & Ors.
Ct. 8
Mr. Gopal Chandra Ghosh, Adv.
...for the appellants
The learned Counsel for the appellants has expressed his
inability to argue the matter, as he has no instruction from his
clients.
The matter is pending since 2009 without having any
intention to move the appeal. The record would show that the
matter was adjourned twice at the instance of the appellants.
The second appeal is arising against the judgment and
decree dated 20th September, 2008 passed by the learned
Additional District and Sessions Judge, Fast Track 5th Court at
Barasat affirming the judgment and decree dated 15th November,
1995 passed by the learned Munsif (now learned Civil Judge
(Junior Division), 2nd Court at Basirhat). The concurrent finding of
facts with regard to validity of a deed of gift is the subject matter
of challenge in the second appeal.
We have carefully considered the judgments of the trial
court as well as the first appellate court. The trial court, on
consideration of the materials on record, declared that the deeds of
gift being nos. 375 and 376 registered on 17th January, 1994 at
Deganga Registration Office and the deeds of settlement being
Nos. 377 and 549 registered in January, 1994 at Deganga
Registration Offices are all void deeds and these deeds have no
binding effect upon the plaintiff. The trial court has also declared
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that the plaintiff has title to and possession in the suit land. The
defendant nos. 1 to 2 (ja) are permanently restrained from
interfering with the plaintiff's possession in the suit land.
The plaintiff, namely, Tena Molla was a very old man and at
the time of filing of the suit, he was 95 years old. The plaintiff was
the illiterate, naïve and village cultivator. The plaintiff has two
sons, five daughters and a wife. Among his daughters, Chapura
Khatun was deserted by her husband and was living with his old
father. The plaintiff has 15/16 bighas of land. Out of these lands,
he gifted .83 decimals of land to Chapura. Taking advantage of
the illiteracy and old age of the plaintiff, his to sons in collusion
with others created a deed of settlement which is in effect the
revocation of the gift of .83 decimals of land in favour of Chapura.
PW-1 i.e. the plaintiff in his unequivocal oral testimony
testified that he intended to execute and register a deed of
revocation revoking the deed of gift in favour of Safura. But the
defendant nos. 1 and 2 in collusion with the deed writers obtained
the impugned deeds of gift by practicing undue influence and
challenged by making false statement about the nature of the said
deeds. PW-1 has categorically held that the impugned deeds of
gift were not read over and explained to him. The defendant nos. 1
and 2, however, could not prove that the said impugned deeds
were read over and explained to the plaintiff before execution or
that the plaintiff has executed the said deeds on his own volition
and free will and conscious of the contents of the said deeds.
One Rabindranath Roy was the scriber of the said two
deeds. During cross-examination, he has stated that he did not
scribe any deed either of the plaintiff or of the defendants. He also
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did not say that Tena Molla was known to him earlier. If he did
not know Tena Molla then question arose how he could identify
the signature of Tena Molla in the deed of gift. In the deed of gift
no. 375 it was found that Abdul Mannan of Village Vasania
scribed the said deed. Abdul was not examined as witness. DW-3
Motiar Rahaman, who claims to be a deed writer, tried to that
Abdul Mannan scribed the deed as per the instruction of Tena
Molla. In the deed of gift no. 375 Abdul identified Tena Molla but
no evidence was adduced by the defendants to prove that Tena
Molla was acquainted with Abdul before hand.
The learned Trial has elaborately discussed about the
validity of the gift in the following words:
"Now, let us see whether the deeds of gift standing in the
names of the defdts no. 1 and 2 have been acted upon or not.
Section 149 of Mulla's Mahomedan Law read as follows:
It is essential to the validity of a gift that there should be (I)
a declaratio nof gift by the donor, (2) an acceptance of the gift,
express or implied, by or on behalf of the donee, and (3) delivery
of possession of the subject of the gift by the donor to the nonee
aas mentioned in section 150. If these conditions are complied
with, the gift is complete.
Section 150 enjoins that delivery of possession is a sine qua
non to validate a deed of gift under Mahomedan law. Section 152
says that a gift of immovable property of which the donor is in
actual possession is not complete, unless the donor physically
departs from the premises with all his goods and chattels and the
donee formally enters into possession.
As held above after discussion of evidence that there held
no declaration of gift by the donor and there held no acceptance
of the gift by the donees. Now, let us see whether the lands
included in the deeds of gift or the suit land were or was delivered
to the defdts in possession or not.
P.W.1 in examination in chief says that he is in exclusive
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possession of the suit land and he did not deliver the possession of
the suit land to the defdts. It appears that P.W.1 was not cross-
examined by the defdts that the pltff delivered possession of the
suit land to the defdts. On the other hand, evidence of D.W.1 does
not show that his father Tena Molla parted with the possession of
the suit land to them. On analysis of evidence of D.W.1, I do not
find anywhere in his evidence that the defdts accepted the deeds
of gift. So, I find that the impugned deeds of gift were not acted
upon in terms of sections 149, 150 and 152 of Mahomadan law
(Mulla).
Therefore, I hold that the defdts managed to obtain the
impugned deeds of gift by practising undue influence, fraud and
giving misrepresentation to him and the deeds were never acted
upon. So, the deeds are void deeds and the same have no binding
effect upon the pltff. Consequently, the impugned deeds of
settlement executed by the defdt nos. 1 and 2 on the basis of the
void deeds of gift are also void deeds."
The first appellate court concurring with the view of the trial
court has relied upon the aforesaid passage from Molla. From the
evidence, both the courts have arrived at a finding that after the
plaintiff gifted the portion of the property in favour of Safura and
after knowing the same, the sons of the respondent became furious
and by inflicting torture in different ways upon the plaintiff compelled to agree to revoke the deeds of gifts executed and registered in faovur of Safura on 17th January, 1994. The plaintiff was taken to Registry office by his two sons and on the same date tow deeds of gift were executed by Tena Molla in cross transcriber.
In order to give effect to the deeds of gift, there has to be an acceptance by the donee in the lifetime of the donee. In the unequivocal evidence that the two sons have coerce the appellant to execute the said document without having the contents thereof 5 and that such gift was never acted upon.
The concurrent finding of facts arrived at by both the courts does not call for any interference at this stage.
The second appeal stands dismissed. However, there shall be no order as to costs.
(Uday Kumar, J.) (Soumen Sen, J.)