Calcutta High Court (Appellete Side)
Shrimati Sarathi Samanta @ Sarathi Rani ... vs Manoranjan Samanta on 13 September, 2023
Author: Supratim Bhattacharya
Bench: Supratim Bhattacharya
1
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Supratim Bhattacharya
S.A. 14 of 2015
Shrimati Sarathi Samanta @ Sarathi Rani Samanta
-Vs
Manoranjan Samanta
For the Appellant : Mr. Rabindra Nath Mahato.
Mr. Aritra Shankar Ray
For the Respondent (in-person) : Mr. Krishna Das Poddar
Mr. Sujit Bhunia
Heard On : 12.09.2023
Judgement Delivered On : 13.09.2023
Supratim Bhattacharya, J.:
1. The instant appeal has been preferred by the appellant/defendant being aggrieved by and dissatisfied with the Judgment and decree passed in Title Appeal No. 73 of 2009 dated 27.06.2014 by the Ld. 2 Additional District Judge-cum-Special Judge(under EC ACT), Paschim Midnapore.
2. Through the said Judgement the First Appellate Court has been pleased to allow the said appeal on contest by setting aside the judgement and decree passed by the Ld. Civil Judge Junior Division 3rd Court Paschim Midnapore in the Title Suit No. 88 of 1999.
3. The appellant in the instant appeal was the defendant in the Title Suit and the respondent in the First Appeal, while the respondent in the instant appeal was the plaintiff in the Title Suit and the appellant in the First Appeal.
4. Through the impugned Judgment the First Appellate Court has been pleased to grant title and possession in respect of the 'Ka' schedule property of the plaint and thereby restrained the respondent from disturbing the title and possession. Through the impugned judgment the appellate court also granted a decree of declaration to the effect that the deed of gift as mentioned in the 'Ka' schedule of the plaint is void, ineffective and illegal.
5. At the time of the admission of the instant second appeal the following substantial question of law has been framed:
I) Whether the Ld. Appellate Court fell into a grievous error of law in holding that the deed of gift in this case is void ab initio ?3
6. The Ld. Counsel appearing on behalf of the appellant has submitted the following:
i) The respondent in the instant appeal filed the Title Suit against the appellant praying for declaration in respect of his title and possession over 84 decimals of land in plot No.577 under Mouja Naraharipur, JL No. 96 Police Station-Debra along with a declaration that the deed of gift being No. 1479 for the year 1992 is illegal, void, ineffective and not binding upon him.
ii) The Ld. Counsel has further submitted that the respondent married the appellant during the lifetime of his first wife. He has further submitted that the respondent/husband executed the deed of gift out of natural love and affection, in favour of the appellant for her future maintenance, which was presented for registration.
iii) The Ld. Counsel has further submitted that subsequently at the instance of the appellant the property in question has been recorded in her name in the record of rights.
iv) The Ld. Counsel has further submitted that the First Appellate Court has erroneously travelled beyond the scope of the pleading of the parties and has erroneously applied different provisions of the Indian Contract Act, 1872 without considering the fact that a deed of gift is not a contract 4 instead as per Section 122 of the Transfer of Property Act, 1882 a gift is a transfer made voluntarily and without consideration.
v) The Ld. Counsel has also submitted that the Trial Court and the First Appellate Court have come to the concurrent finding that the respondent was mentally alert at the time of the execution of the deed of gift and the said deed of gift has not been challenged.
vi) The Ld. Counsel has further submitted that it is settled law that the Hon'ble High Court will not interfere with the concurrent findings with the courts below unless
a) the Courts below have ignored the material evidence or acted on no evidence, or
b) the Courts have drawn wrong inferences from proved fact, by applying the law erroneously, or
c) the courts have wrongly cast the burden of proof.
vii) The Ld. Counsel has also submitted that there is concurrent findings of both the Court to the effect that the respondent was mentally alert at the time of execution of the deed of gift and further considering that the appellant has accepted the deed of gift by presenting the same before the registering authority for its registration and by mutating the land in question in her name. The judgment passed by the First 5 Appellate Court is not in accordance with law and is required to be set aside. The Ld. Counsel has relied upon the following judgments:
a) (1979) 3 SCC 226, Wherein it has been stated that a deed of gift should be made voluntarily and without consideration.
b) (2003) 11 SCC 303
c) 2013 SCCOnline Calcutta 22868.
d) (2014) 2 CHN 27 wherein the following proposition of law that a Court cannot make out a third case and travel beyond the scope of the pleading of the parties.
e) (2020) 19 SCC 57 has been relied upon by the Ld. Counsel stressing upon the proposition of law that concurrent finding of both the court cannot interfered with.
7. The Ld. Counsel appearing on behalf of the respondent has submitted the following:
i) The respondent at the time of making of the alleged Will was mentally unfit as the said person is a person of mental imbalance.
ii) The Ld. Counsel has further submitted that the respondent is a mental patient and cannot decide what is right and what is wrong for him.6
iii) Ld. Counsel has further submitted that the respondent never ever intended to gift his property to the appellant. The Ld. Counsel has relied upon the judgment published in AIR 1993 CAL 144 stating that fact based on no evidence but being on assumption or surmise and conjecture cannot be allowed to go unremedied if it leads to denial of justice.
iv) Ld. Counsel has further relied upon the judgment reported in (2019) 13 SCC 70 and (2019) 10 SCC 259 stressing upon the point that record of right does not create the title. He has further relied upon the Judgment reported in AIR 2010 Bombay 122 stressing upon the point that a lady not being legally wedded wife cannot claim maintenance. Banking upon the facts and circumstances the Ld. Counsel has prayed for dismissal of the instant appeal.
8. The crux of the issue is that as to whether the deed of gift executed by the respondent herein dated 25.2.1992 in favour of the appellant is at all valid or not.
9. The First Appellate Court has come to the finding that the gift in issue is not in accordance with law as the provisions of the Indian Contract Act have not been complied at the time of execution of the said deed of gift. The First Appellate Court has taken into consideration Section 2(a) of the Indian Contract Act, 1872 and has stated that the husband donor made a proposal by signifying his 7 willingness to transfer his property to the second wife and as soon as the proposal has been accepted by the second wife it became a promise. The Ld. First Appellate Court has also discussed about Section 25 (2) of the Indian Contract Act. The Ld. Judge has also taken into consideration Sections 11 and Section 12 of the Indian Contract Act. Section 11 of the Contract Act states that the husband should be of sound mind at the time of transferring the suit property while Section 12 states that the donor must have been capable of understanding the Contract and of forming a rational judgment as to its effect upon his interest. In this regard this Court is of the view that gift of a property takes place inter vivos and for the purpose of gift there is no consideration at all. Gift takes place only and solely out of natural love and affection. In the case of a contract between two persons there shall have to be a consideration. Consideration is one of the essential criteria of a contract. In case of a gift there being no consideration involved so gift does not fall within the purview of the Indian Contract Act. As such the discussion of the First Appellate Court cannot be accepted. Thus, the inference drawn by the First Appellate Court is hard to subsist.
10. The fact of the instant lis is that during the year 1979 Monoranjan Samanta the respondent fell mentally ill and had been treated by doctor and the said Monoranjan Samanta became mentally fit during the year 1981 and he first married during the year 1982 and one 8 daughter and one son has been born as a result of the said marriage. It has also been alleged that during the last part of the year 1987 the said Monoranjan Samanta once again fell mentally ill and he had to be treated by Dr. S.P. Mukherjee and after long treatment he recovered in the year 1995. It is very much important to take note that only a single prescription dated 27.2.1989 has been exhibited by the said Monoranjan Samanta and in the said prescription the word "Fit" is mentioned. Though not being a medical professional one can presume that the word "Fit" signifies that the said Monoranjan Samanta had recovered from his mental illness on and from 27.2.1989. It has been alleged that Sarathairani Samanta by prevailing upon the employees of the marriage registration office had registered the marriage between Monoranjan Samanta and Sarathairani Samanta on 22.11.1988.
11. Registration of a marriage requires the presence of the bride and the bridegroom along with two to three persons who are known to the bride or the bridegroom before the marriage registrar. It is hard to believe that all these things have been manipulated by the bride. Had that been so that the said Sarathairani Samanta had mislead the marriage registrar and the employees of the said office then the said Monoranjan Samanta had the opportunity to take legal steps praying for cancellation of the said marriage but the said Monoranjan Samanta did not take any such step.
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12. Later on after a gap of four years from marriage that is in the year 1992, these two contending parties filed a petition praying for mutual divorce and ultimately the said mutual divorce took place on 10.06.1993 in the Court of the Ld. District Judge at Midnapore and that too in the sole presence of the said Monoranjan Samanta. The certified copy of the dissolution of marriage under Section 13B of the Hindu Marriage Act has been exhibited on behalf of the said Sarathairani Samanta. It is also fact that the said Monoranjan Samanta and Sarathairani Samanta resided together since their marriage. These facts prove that both Monoranjan Samanta and Sarathairani Samanta led a marital life, without going into the aspect of the legality of their marriage.
13. The impugned deed of gift is dated 26.2.1992 as such the contention on behalf of the said Monoranjan Samanta that he was not mentally fit at the time of execution and registration of the said deed of gift cannot at all be accepted.
14. On behalf of the respondent a point has been raised, that the deed of gift in question is required to be accepted but in the instant case the same has not been accepted by the donee. In this regard this Court places the definition of the word 'gift' as laid down in Section 122 of the Transfer of Property Act which states as follows:
"122. "Gift" defined.--"Gift" is the transfer of certain existing moveable or immoveable property made 10 voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee."
As regards to acceptance, this Court refers to Paragraphs 18 and 26 of the Judgment passed by the Hon'ble Apex Court reported in (2021) 3 SCC 459 which reads as follows:
"18. .......
Acceptance when to be made.--Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void.
26. Hence, being an act of receiving willingly, acceptance can be inferred by the implied conduct of the donee. The aforesaid position has been reiterated by this Court in Asokan v. Lakshmikutty [Asokan v. Lakshmikutty, (2007) 13 SCC 210] :
(SCC pp. 215-16, para 14) "14. Gifts do not contemplate payment of any consideration or compensation. It is, however, beyond any doubt or dispute that in order to constitute a valid gift acceptance thereof is essential. We must, however, notice that the Transfer of Property Act does not prescribe any particular mode of acceptance. It is the circumstances attending to the transaction which may be relevant for determining the question. There may be various means to prove acceptance of a gift. The document may be handed over to a donee, which in a given situation may also amount to a valid acceptance.
The fact that possession had been given to the donee also raises a presumption of acceptance."
In this instant case one of the Exhibited documents is a record of right in respect of the property which is the subject matter of the deed 11 of gift. In the said exhibited record of right the name of Sarathi Samanta transpires.
One of the essential elements of gift is that the gift must be accepted by transferee. Gift must be accepted by the donee. Property cannot be given to a person even in gift against his (her) consent. The donee may refuse the gift, for example when it is a non-beneficial property or, onerous gift. The donee may refuse the offer of gift of such properties. Acceptance of the gift is, therefore, necessary. Such acceptance may either be express or implied. The acceptance is implied if it inferred from the conduct of the donee and the surrounding circumstances. In this instant case it is apparent that the name of Sarathi Samanta appears in the record of right in respect of the property gifted through the deed of gift which is also mentioned in the schedule of the plaint. Thus, in this instant case, from the aforementioned act it is crystal clear that the donee has accepted the gift.
15. Thus, from the aforesaid discussion it is clear that there was marriage between these two contending parties and mutual divorce have also taken place and it is also apparent that whether it be out of actual natural love and affection or not there has been a gift. It is very hard to believe the contention of the respondent that all these things have been done without his consent and he being not mentally fit. 12
16. Thus, this Court finds sufficient reason to interfere with the Judgment passed by the Ld. First Appellate Court. The Instant appeal being SA No. 14 of 2015 is allowed and thereby setting aside the judgment passed by the Ld. First Appellate Court in the Title appeal No. 73 of 2009 and affirming the Judgment passed by the Ld. Civil Judge Junior Division 3rd Court Midnapore in Title Suit No. 88 of 1999. The application being CAN 10867 of 2014 is also disposed of. Parties shall be entitled to act on the basis of the server copy of the judgment and order placed on the official website of the Court.
Urgent Xerox certified photo copies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.
(Supratim Bhattacharya, J.)