Calcutta High Court (Appellete Side)
Asim Kumar Jana And Another vs Biswajit Das And Others on 27 September, 2019
Author: Harish Tandon
Bench: Harish Tandon, Hiranmay Bhattacharyya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
THE HON'BLE JUSTICE HARISH TANDON
&
THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA
C.A.N. 8807 OF 2018
With
C.A.N. 1673 OF 2019
In
F.A. 229 OF 2008
Asim Kumar Jana and another.
Vs.
Biswajit Das and others.
Mr.Haradhan Banerjee,Adv.
Mr.Amitava Pain, Adv.
Ms.Monideepa (Paul) Roy,Adv.
Ms.Nilima Das,Adv.
For the Appellants...
Mr. Probal Mukherjee, Adv.
Mr.Debjit Mukherjee, Adv.
Mr. Somdeb Maity, Adv.
Ms.Susmita Chatterjee,Adv.
Mr. Kaustav Bhattacharya,Adv.
For the respondents..
Judgment On: 27.09.2019
Harish Tandon, J.:
The reverberation of revenge being the hidden object surfaced in the evidence is the bedrock of the institution of suit by the plaintiff/appellant against the respondent.
The suit challenging several deeds would not have seen the light of the day, had not plaintiff/appellant subjected to a criminal proceeding launched on the complaint of the defendant no.1/respondent.
It is not in dispute that the parties are closely related and admittedly the defendant no.1 is the cousin brother of the plaintiff. It is also not in dispute that the defendant no.1 was really nurtured and brought up by the parents of the plaintiff as their son since the age of three to four years.
It is nobody's case that the defendant no.1 was ever adopted as a son by the parents of the plaintiff but the entire tenet of the evidence leaves no ambiguity that he was treated as a foster son and his wellbeing was considered in several dispositions which are the subject matter of challenge in the instant suit.
The disputed property involved in the suit is holding No. 26, Balai Mistri Lane, P.S- Sibpur, District- Howrah which originally belonged to Jiban Krishna Mondal, Khaducharan Mondal and Smt. Nirmala Bala Dasi (since deceased). The aforesaid owners sold, transferred and conveyed the disputed property in favour of Bhagwati Dasi, the mother of the plaintiff, by executing a registered deed of sale on 15th May, 1937. The said Bhagwati Dasi duly mutated her name in the assessment record maintained by the concerned municipality and discharged her obligation as owner upon payment of rates and taxes levied and imposed by such municipality. The husband of Bhagwati Dasi namely, Bhupaticharan Das was engaged in a jewellery business at Barabazar, Kolkata and was also a jury in the Howrah Court. Both the parents of the plaintiff jointly executed a Deed of Settlement dated 30th March, 1984 settling a part of the disputed property in favour of the defendant no.1.
To be more precise the said Deed of Settlement was executed by Bhagwati Dasi being the owner of the disputed property wherein the Bhupaticharan Das was figured as confirming party. Bhupaticharan Das expired on 7th May, 1984 and was survived by his widow namely Bhagwati Dasi and the plaintiff, only daughter.
Subsequently, Bhagwati Dasi executed two separate deeds of settlement dated 1st March, 1986 and 22th April, 1987 and thereby settled the remaining portion of the disputed property in favour of the defendant no.1, who, thus, claimed to have acquired absolute right, title and interest in respect thereof. Bhagwati Dasi died on 21st December, 1991.
The present suit is filed by the plaintiff/appellant for declaration of her right, title and interest in respect of the disputed property as absolute owner and also challenged the purported three Deeds of Settlement dated 30th March, 1984 , 1st March, 1986 and 22nd April, 1987 as void. Alternatively, the prayer for partition is also made with consequential relief of permanent injunction restraining the defendant no.1 and municipality, from mutating the name of the defendant nos. 2 and 3 in the assessment register maintained by it.
The salient facts which are more or less undisputed have been succinctly narrated herein above and therefore, for the sake of brevity, the grounds on which the plaintiff/appellant laid her claim of absolute title over the disputed property and the challenge thrown to the purported Deeds of Settlement are adumbrated hereinafter.
It is claimed by the plaintiff/appellant that her mother Bhagwati Dasi was illiterate and bed ridden, did not have any individual source of income and in fact, the property was purchased from the money possessed by her father, Bhupaticharan Das in Benami of the mother. To put it more correctly, the plaintiff alleged that the mother was not the real owner but the benamidar having no individual source of income, sufficient enough to acquire the said property. The defendant no.1 was brought to the house to discharge household duties being the nephew of Bhupaticharan Das and taking advantage of the old age of her parents, managed to get the execution of the impugned deeds, when admittedly the plaintiff/ appellant being the only daughter, has been deprived. It is further alleged that Bhagwati Dasi during her lifetime communicated to the plaintiff/appellant that she will get the disputed property after her death and she never executed any deeds. It is the specific case of the plaintiff/appellant that Bhagwati Dasi was aged about 90 years and suffering from hearing and visual impairment and was completely bed ridden.
It is categorically stated in the plaint that the contents of the impugned deeds were never read over and explained to Bhagwati Dasi and therefore, were obtained by fraudulous means. The plaint further proceeds that the alleged deeds were never executed by Bhagwati Dasi nor by Bhupaticharan Das at any point of time and is tainted by impersonification and ultimately, a plea of partition is taken for the reasons that in the event the Court finds that the Bhagwati Dasi was a mere name lender and the real owner was Bhupaticharan Das upon his death both Bhagwati Dasi and the plaintiff, being the daughter, inherited the estate of Bhupaticharan Das in equal share and in the event the purported deeds are held to be valid and legal, at most, the same may be restricted to the share of Bhagwati Dasi and not beyond it.
The reasons for impleadment of the defendant nos. 2 and 3 can be reasonably gathered when the plaintiff/appellant also challenged the deeds executed in their favour by the defendant no. 1, divesting his right, title and interest in demarcated portion of the disputed property and the challenge is also made to those deeds for that the defendant no. 4, the municipality, is arraigned as a party in the suit because of the permanent injunction having sought against it from mutating the names of the defendant nos. 3 and 4 on the basis of their respective deeds executed by the defendant no.1.
The defendant no. 3 and 4 though filed separate written statement but ultimately did not participate in trial. The defence in the joint written statement is restricted on acquisition of their right, title and interest from the defendant no.1 and, therefore, the suit was principally contested by the defendant no.1 by refuting the contentions made in the plaint. Furthermore we do find any inconsistency in the plea taken by those defendants as their title depends upon the authority and the power of alienation exercised by the defendant no.1.
Even the municipality, the defendant no.4 filed written statement but it's stand appears to be innocuous as it is pleaded that they would be bound by the decisions of the suit.
The defendant no.1 being the sole contesting defendant resisted the claim of the plaintiff/appellant denying the alleged fraud and upholding the legality, validity and authenticity of the impugned deeds. There is no denial by the defendant no.1 that the plaintiff is the only daughter of Bhupaticharan Das and Bhagwati Dasi and he was not adopted by them. It is also stated that he was brought by them and was treated as a son. It is alleged that the plaintiff/appellant was given in marriage at the age of 13/14 years and there was no cordial relation of her with the parents. She was all along quarrelsome and demanded the property to be given to her by her parents during their lifetime. It is also not disputed that the defendant no.1 was living with them all along and denial is made to the allegations that he was allowed to occupy one room as licensee in the disputed property.
It is a specific stand of the defendant no.1 that Bhagwati Dasi and Bhupaticharan Das executed the Deed of Settlement which, infact, is a deed of gift on 30th March, 1984 and was duly registered in the office of the Registrar of the concerned district. After the death of Bhupaticharan Das, Bhagwati Dasi executed two separate deeds of settlement on 1st March, 1986 and 22nd April, 1987 respectively. It is specifically contended therein that the settlers executed and registered those deeds of their own volition with free mind having disposable capacity. It is denied that those deeds are outcome of fraud having practiced upon them by him.
It appears from the record that an amendment to the written statement was sought by the defendant no.1 which was eventually allowed in order to incorporate certain events to corroborate that the plaintiff/appellant had a knowledge of such deeds having executed by her parents.
In the amended pleading it is stated that, apart from the suit property there were several other properties owned by the grand father of the plaintiff and the defendant no.1, which was inherited by his three sons including Bhupaticharan Das. After his death a portion of such property was acquired by the State of West Bengal and the compensation was paid by the Bally Municipality both to Bhagwati Dasi and the plaintiff/appellant who personally appeared before the concerned authority to accept the said amount. Subsequently, the suit was filed by the plaintiff/appellant being Title Suit No. 20/1997 seeking partition against the other co-sharer of the aforesaid properties and a deed of family settlement was executed by Bhagwati Dasi which was well within the knowledge of the plaintiff/ appellant. It is further stated that despite having knowledge of the said family settlement, the plaintiff/appellant sold those properties, to which the defendant no.1 lodged a complaint with the police and a criminal proceeding was initiated.
In the backdrop of the aforesaid fact it is stated that the plaintiff/appellant had the knowledge of the alleged deeds atleast on the date of the family settlement i.e., 30th November, 1991 and, therefore, the suit filed in the year 1997 is palpably barred by the provisions of the Limitation Act.
On the conspectus of the aforesaid facts, the parties went in trial and the plaintiff/appellant stood as a sole witness. As indicated in the opening paragraph of this judgment, she categorically stated therein that since the defendant no. 1 has lodged a criminal proceeding such is the reason for institution of the instant suit.
The reasons for recording the aforesaid facts are that the Trial Court was swayed much by such facts in not only holding that the plaintiff has miserably failed to prove the allegations of fraud and false impersonification but the suit is also palpably barred under the Limitation Act.
Mr. Haradhan Banerjee, the Learned Counsel for the appellant strenuously submits that the evidence is required to be considered as a whole and one stray sentence should not be segregated therefrom and sway the mind of the Judge in negating the claim. Mr. Banerjee would further submit that the moment the parties fall apart and their emotional bonding got shattered, the Court should ignore the fringe statement to lubricate the mind of the person but the real issues must be addressed on the basis of evidence and materials produced by the parties. Mr. Banerjee vehemently submits that once the plea of fraud is taken by a party, the Court has to view the same seriously as no person can be allowed to reap the benefit of fraud. Mr. Banerjee would further submit that it is undeniable that the settlers of both the deeds were aged persons and not capable to take an independent decision pertaining to alienation and disposition of the property.
According to Mr. Banerjee there is no reason to deprive the biological daughter by executing such purported deeds which itself shrouded the execution thereof. Mr. Banerjee further submits that even if the purported deeds are found to be valid yet the nature thereof is to be ascertained from the language used therein and it is a primary duty of the Court to find the intention of the parties therefrom. Mr. Banerjee thus submits that though the purported deeds are styled as Deeds of Settlement yet the intention of the settlor can be seen from the words used therein which inevitably suggest that it was infact a will and not the immediate divestation of right, title and interest. In other words, Mr. Banerjee would like to submit that the language of the purported deeds are suggestive of the fact that the defendant no.1 would get the property after the death, which is contrary, to the element of gift as it takes effect immediately upon the execution and acceptance thereof.
Mr. Banerjee further submits that there is no plausible reason forthcoming from the defendant no.1 as to why Bhupaticharan Das put his LTI in the first deed when he was a literate person and infact was a jury of Howrah Court. Mr. Banerjee submits that none of the deeds contain any certificate that the contents of the deeds were read over and explained to the executants.
Mr. Banerjee submits that Bhagwati Dasi was not only a illiterate but bed ridden and therefore, the contents of the documents is required to be read over and explained to her in the language known to her and having not done so, those deeds cannot be said to be legal and binding upon the plaintiff. To buttress the aforesaid submission, he relied upon the judgment of Privy Council in Hem Chandra Roy Chaudhury -Vs- Suradhani Debya Chaudhurani & others reported in A.I.R 1940 PC 134.
Mr. Banerjee arduously submits that the onus lies on a person who derived the title from a document executed by an illiterate and bed ridden person to prove that she executed the same on advice and was conscious of the contents thereof having read over and explained to her and relied upon a judgment of Privy Council in case of Mt. Farid-un-nisa-Vs- Munshi Mukhtar Ahmad & another reported in A.I.R. 1925 PC 204. In furtherance thereof, Mr. Banerjee submits that the law relating to execution of document by pardanashin lady equally applies to an illiterate lady and relies upon a judgment of this court in case of Chainta Dasya -Vs- Bhalku Das reported in A.I.R. 1930 Cal 59.
On the point of limitation, Mr. Banerjee submits that the suit is filed within the period of limitation as the plaintiff derived knowledge of such purported deeds in the year 1996-97 and not before it. Mr. Banerjee further submits that the impugned deeds are an outcome of fraud and false impersonification and bad, for want of certificate relating to read over and explained the contents of the documents to the executant.
On the other hand Mr. Probal Mukherjee, the learned Advocate appearing for the defendant no.1/respondent submits that although the expressions fraud and false impersonification are used in the pleading but there is no particulars given therein and therefore, the suit of such nature is liable to fail. Mr. Mukherjee succinctly submits that no attempt was made by the plaintiff/appellant to challenge the thumb impression which inevitably leads to a situation that the challenge on impersonification is not proved. On the nature of document, Mr. Mukherjee submits that the language used therein is explicit and clear that the executants divested their right, title and interest immediately on execution thereof in favour of the defendant no.1.
Mr. Mukherjee would further submit that the line of distinction between the gift and the will is whether the executants reserved the right to revoke the same during his lifetime and placed reliance of the judgment in P.K. Mohan Ram -Vs- B.N. Ananthachary & Ors. reported in (2010) 4 SCC 161.
Mr. Mukherjee further submits that the aforesaid deeds would reveal that immediate right is created into the defendant no.1 though the executant reserved the right to manage and administer as trustee during their lifetime and the same would come to an end on his death. Mr. Mukherjee thus relies upon Section 19 and 21 of the Transfer of Property Act to make a distinction between a vested and the contingent interest.
Mr. Mukherjee arduously submits that the plaintiff/appellant was all along aware of the execution of those deeds and the challenge would not have come had not the defendant no.1 lodged a complaint with the police for the misdeed of the plaintiff/appellant in dealing with the other properties and further stresses upon the statement of the plaintiff/appellant in the evidence that the present suit is filed to take revenge against the defendant no.1.
Mr. Mukherjee submits that all the aforesaid deeds contained a specific statements that the deeds has been read over and explained to the executants which thus satisfies the requirement. It is further submitted that the Learned Advocate stated in the evidence that he read over and explained the contents of those deeds to the executants who after understanding the same put his thumb impression. Mr. Mukherjee refuted the contention of the plaintiff/appellant that Bhupaticharan Das being a literate person could not put the thumb impression by taking us to the deed dated 30th March, 1984 where a certificate is appended explaining the reasons for putting such LTI, Mr. Mukherjee thus submits that after the explanation is given for putting the thumb impression it does not ipso facto render the deed void for the reasons that the executant was an illiterate person.
On the plea of limitation Mr. Mukherjee submits that the plaintiff appellant was well aware of the execution of those documents when the deed of family settlement was executed on 30th November, 1991 by Bhagwati Dasi and, therefore, the suit is barred by limitation.
Mr. Mukherjee takes further plea on the limitation that the limitation would reckon from the knowledge of the instrument which is akin to notice when presented before the Registrar and relies upon Section 3 of the Transfer of Property Act. Mr. Mukherjee thus submits that the registration of a document constitutes notice and therefore, a person is required to have knowledge thereof and if the suit is filed after three years from the date of the registration it is barred and places reliance upon a judgment of the Supreme Court in case of Ram Niwas (Dead) through LRS. VS Bano (SMT) & ors. reported in (2000) 6 SCC 685. Mr. Mukherjee lastly submits that no interference is called for to the impugned judgment and decree and the appeal is liable to be dismissed.
The points which emerge from the submissions of the respective counsels are:-
firstly, whether the impugned three separate Deeds of Settlement are an outcome of fraud perpetrated by the defendant no.1/respondent. Secondly, whether the purported deeds of settlement are bad, illegal and ineffective as the executants being illiterate persons were not read over and explained the contents thereof. Thirdly, whether the suit is barred by the provisions of the Limitation Act.
The plaintiff is the biological daughter of the executants of the Deeds of Settlement and have challenged those deeds in the said suit. It is categorically asserted that the parents at the time of execution of the alleged deeds of settlement were aged persons not capable to take decisions for disposition and/or alienation of the properties in favour of the defendant no.1.
It is an admitted fact that the defendant no.1 was brought by the parents of the plaintiff when he was aged about 2-3 years and was reared and nurtured as son. The defendant no.1 is not a complete stranger but the son of the brother of the Bhupaticharan Das and it is also not in dispute that the defendant no.1 was never adopted as son upon performance of ceremony. None of the parties have claimed in this regard and the claim of the defendant no.1 is founded on the validity of deeds of settlement covering the subject property. It has been brought to our notice that another deed was also executed in the similar fashion in respect of the other property situated in different mouza to which we are not concerned with.
Both Bhupaticharan Das and Bhagwati Dasi executed the first deed of settlement on 30th March, 1984 divesting a part of the suit premises in favour of the defendant no. 1. The throne of challenge to the said deed is basically laid upon when the Bhupaticharan Das and the Bhagwati Dasi put their respective L.T.I. when admittedly the Bhupaticharan Das was an illiterate person.
It is strenuously contended by Mr. Banerjee, Learned Senior Advocate that it is improbable that a literate person would execute a document putting his L.T.I, more particularly, when he was a jury in Howrah Court. It appears in course of the evidence that the Bhupaticharan Das was 84 years of age at the time of the execution of the said document and there is a certificate appended by the Learned Advocate who drafted the said deed that Bhupaticharan Das subscribed his L.T.I. as his hand was trembling. The said lawyer was a summoned witness and deposed as D.W. 2. He specifically stated that he was a family legal advisor of Bhupaticharan Das and Bhagwati Dasi and the said deed was drafted as per their instructions and the contents of the deed was read over and explained to them though there is no separate certificate appended at the foot of the said deed that it was read over and explained to then but the lawyer who drafted the deed in unequivocal terms stated that he read over and explained the contents and the executants after having understood the same and being satisfied that what they actually intended is reflected therein, executed the said deed and also make themselves available before the registering authority.
The other two deeds of settlement executed by the Bhagwati Dasi alone after the death of Bhupaticharan Das were also drafted by the D.W. 2 who also proved the same in evidence with identical assertion that the contents thereof were read over and explained to her.
Mr. Haradhan Banerjee put much emphasis on non-incorporation of the certificate in the aforesaid deeds pertaining to read over and explain the contents thereof with further assertion that there must be an advice given to the executants before the execution thereof. The aforesaid contention is raised because of the fact that Bhagwati Dasi was illiterate lady and the ingredients required to prove the execution of the document for pardanashin lady is also extended to an illiterate lady. The judgment of the Privy Council in case of Mt. Farid-un-Nisa (supra) is heavily relied upon for the aforesaid proposition. In the said case a suit for recovery of possession was filed by a pardanashin lady for recovery of possession of properties against the two alleged muttawalis. It appears that the husband was in government service and played active role in execution of the said document without the concurrence and consent of the said lady.
A wakafnama was executed when there was a clear evidence that she wanted more clauses to be incorporated therein but those were conspicuously absent at the time of the execution by her. She later on filed the said suit which was in effect to challenge the said deed of wakafnama. She was quite unaware of the departure of the terms which she wishes and expressed without letting her know of such changes.
In the backdrop of the aforesaid facts it was held that, "the Law of India contains well known principles for protection of persons, who transfer their property to their own disadvantage when they have not the usual, means of fully understanding the nature and affect of what they are doing. It is further held that the case of illiterate pardanashin lady denuding herself of large proportion of her property without professional or independent advice is one of which there is much authority; even after holding, so the privy council held that the independent legal advice is not in itself essential but the disposition made must be substantially understood and must really be a mental act as its execution is a physical act of persons who makes it". It was ultimately held therein that the said illiterate pardanashin lady did not have the advice to do so. The fact is quite distinguishable for the simple reason that the D.W.2, the legal advisor categorically stated that the executants of the said deeds intended to divest and alienate their rights in respect of the properties comprised therein and an advice was also given to execute the aforesaid deeds with full understanding and on clear comprehension of their disposition.
It is no longer res integra that one who claims benefit from the aforesaid deed has to discharge initial onus that the executant executed the same with free mind after comprehending the nature of the language used therein.
The defendant no.1 discharged the said onus by summoning not only the lawyer (D.W.2) but also the witnesses to the said deeds calling them as witnesses to prove not only the execution but the intention of the executors. Having satisfied with the contents thereof, it is not a point of much quarrel that the rule of law applicable to pardanashin women in executing a document is also extended to a illiterate lady as both stands with disadvantages as held in case of Chainta Dasya ( supra) wherein it is held:-
"the rule of law so far as pardanashin women is concerned is well known and has been clearly laid down in many decisions of the Privy Council. It is true that most of those decisions relate to the case of pardanashin ladies. We have not been referred to any case in which the principle has been extended to the case of other women who do not come within that class; but that does not seem to be any reason why a rule which is applicable to pardanashin ladies on the ground of their ignorance and illiteracy should be restricted to that class only and should not apply to the case of a poor women who is equally ignorant and illiterate and is not pardanashin simply because she does not belong to that class. If the view of the matter were adopted the effect clearly would be to confer an unfair advantage upon rich women as compared with poor women. The object of the rule of law is to protect the weak and helpless, and it should not, in my judgment, be restricted to a particular class of community. It seems to me that what the learned Subordinate Judge has done amounts in a manner to misplacing the onus of proof."
In case of Hem Chandra Roy Chaudhury (supra) accepted the doctrine of "proper and necessary test" which requires the sufficient intelligence of a lady to understand the contents and the relevant clauses in the deed and must be sufficiently understood reflecting her mental act on the execution in these words:-
" A purdanashin women is not required to understand wvery technical detail of a bargain. In the judgment of the Board delivered by Lord Buckmaster in 46 I.A 272 at p.278, this is pointed out and the "proper and necessary test" was held to have been applied by the Subordinate Judge who had found that the lady had sufficient intelligence to understand the relevant and important matters, that she did understand them as they were explained to her, that nothing was concealed and that there was no undue influence or misrepresentation. And in 52 IA 342 at p. 350, the Board stated the requirement as being that the disposition made must be substantially understood and must really be the mental act as its execution is the physical act of the person who makes it.
Though there may not be " a clear understanding of each dtail of a matter which may be greatly involved in technicalities" - to use Lord Buckmaster's words- there may still be an intelligent comprehension of the bargain on the part of the lady. In such a case the bargain is good and is good as a whole. But if a feature of the transaction affecting in a high degree of the expediency of her entering into it is not understood by the lady, the bargain cannot be divided into parts or otherwise reformed by the Court so as to uphold certain portions of it while rejecting others. Her answer to a suit upon the deed is not that she has an equitable defence to the enforcement of a certain stipulation but that it is not her deed. The protection extended to a person in her situation is protection against being held bound by a transaction which never had her free and intelligent consent."
The Division Bench of this Court in Smt. Sonia Parshini-Vs- Sheikh Moula Baksha reported in A.I.R. 1955 Cal 17 was considering a case where a deed was executed by a lady who was working in a mill and the protection was sought by her as illiterate pardanashin lady. An argument was advanced that since she was a working lady she cannot take shelter either as pardanashin or illiterate lady having knowledge of the wordly affairs refuting the aforesaid contentions the Division Bench held :-
"The court below held that the appellant though an illiterate woman was not entitled to the protection in view of her status and habits. Presumably, the learned Judge had in mind the fact that the appellant used to work in a mill and was therefore not subject to the disability imposed by the pardah. The mere fact that the appellant made a living as a mill-hand did not necessarily imply that her deficiencies on account of illiteracy and ignorance were supplied and she was competent to transact business with normal skill and care. In order that the impugned kobala might be upheld it has to be found upon evidence that she understood the contents of the same. An omnibus finding to the effect that the appellant was a 'woman of the world'
-- a phrase not easy to understand and one arrived at without real basis in evidence -- cannot possibly take the place of proof of the essential fact that she comprehended the terms of the kobala by which she purported to have parted with all that she possessed. The observation of the learned Judge that she appeared to be conversant with the language in which the kobala was written is equally unhelpful. Mere acquaintance with the language of the deed as spoken in common parlance can be of no assistance in view of her proved illiteracy and in the absence of satisfactory evidence to establish that the kobala was read out to her so that she was enabled to understand the contents of the document."
In case of Mst. Kharbuja Kher -Vs-
Jangbahadur Rai & Ors. Reported in A.I.R. 1963 SC 1203 the Apex Court reiterated the said principles in the following:
"5. It is settled law that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact. In the instant case the learned Munsif and, on appeal, the learned Subordinate Judge found concurrently that the two widows put their thumb marks without understanding the true import of the document. Imam, J., in second appeal reversed the said findings on the ground that they were vitiated by an erroneous view of the law in the matter of burden of proof. The judgment, if we may say so with respect, consists of propositions which appear to be contradictory. The learned Judge, after reviewing the case law on the subject, concludes his discussion by holding that it was the duty of the plaintiff to prove that there was fraud committed and that, as that had not been established, the question whether the document was read over and explained to the plaintiff, in his opinion, in the circumstances, did not arise. This proposition, in our view, is clearly wrong and is contrary to the principles laid down by the Privy Council in a series of decisions. In India pardahnashin ladies have been given a special protection in view of the social conditions of the time,%; they are presumed to have an imperfect knowledge of the world, as by the pardah system, they are practically excluded from social intercourse and communion with the outside world. In Farid- Un-Nisa v. Mukhtar Ahmad (1), Lord Sumner traces the origin of the custom and states the principle on which the presumption is based. The learned Lord observed:
"In this it has only given the special development, which Indian social usages make necessary, to the general rules of English law, which protect persons, whose disabilities make them dependent upon or subject them to the influence of others, even though nothing in the nature of deception or coercion may have occurred. This is part of the law relat- ing to personal capacity to make binding transfers or settlements. of property of any kind. "
The learned Lord also points out: "Of course fraud, duress and actual undue influence are separate matters". it is, therefore, manifest that the rule evolved for the protection of pardahnashin ladies shall not be confused with other doctrines, such as fraud, duress and actual undue influence, which apply to all persons whether they be pardanashin ladies or not."
6. The next question is what is the scope and extent of the protection. In Geresh Chunder Lahoree v. Mst. Bhuggobutty Debia (1) the Privy Council held that as regards documents taken from pardanashin women the court has to ascertain that the party executing them had been a free agent and duly informed of what she was about. The reason for the rule is that the ordinary presumption that a person understands the document to which he has affixed his name does not apply in the case of a pardanashin woman. In Kali Baksh v. Ram Gopal (2), the Privy Council defined the scope of the burden of a person who seeks to sustain a document to which a pardanashin lady was a party in the following words :
,,In the first place, the lady was a parda- nashin lady, and the law throws round her a special cloak of protection. It demands that the burden of proof shall in such a case rest, not with those who attack, but with those who found upon the deed, and the proof must go so far as to show affirmatively and conclusively that the deed was not only executed by, but was explained to, and was really understood by the grantor. In such cases it must also, of course, be established that the deed was not signed under duress, but arose from the free and independent will of the grant or". The view so broadly expressed, though affirmed in essence in subsequent decisions, was modified, to some extent, in regard to the nature of the mode of discharging the said burden. In Farid-Un-Nisa v. Mukhtar Ahmad
(a) it was stated :
"The mere declaration by the settlor, (subsequently made, that she had not under stood what she was doing, obviously is not in itself conclusive. It must be a question whether, having regard to the proved personality of the settlor, the nature of the settlement, the circumstances under which it was executed, and the whole history of the parties, it is reasonably established that the deed executed was the free and intelligent act of the settler or not. If the answer is in the affirmative, those relying on the deed have discharged the onus which rests upon them".
While affirming the principle that the burden is upon the person who seeks to sustain a document executed by a pardanashin lady that she executed it with a true understanding mind, it has been held that the proof of the fact that it has been explained to her is not the only mode of discharging the said burden, but the fact whether she voluntarily executed the document or riot could be ascertained from other evidence and circumstances in the case. The same view was again reiterated by the Judicial Committee, through Sir George Rankin, in Jagadish Chandra v. Debnath (1). Further citation is unnecessary. The legal position has been very well settled. Shortly it may be stated thus : The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardanashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. It should be established that it was not only her physical act but also her mental act. The burden can be discharged not only by proving that the document was explained to her and that she understood it, but also by other evidence, direct and circumstantial."
In Ponnuchami Servai-Vs-
Balasubramanian & Ors. Repoted in A.I.R. 1982 Madras 281 the point which came up for consideration before the single bench of the Madras High Court as to whether a deed of release executed by the first defendant therein was in effect, a deed divesting the right, title and interest in presenting or in the nature of will or settlement, it is held:-
The Bench held that in order to constitute a document to divest the right, title and interest in presentee or in future, the one of the factors to be borne in mind is whether such document constitutes any provision relating to its revocability. The other factor which has to bear in mind is whether the interest in the property was divested immediately upon execution of the said document or to take effect after the death of the executant. It would be relevant to quote the observations recorded in paragraph 6 of the said judgment which runs thus"
"6. The question whether a particular document is a testamentary or a no testamentary instrume has been gone into in several cases. It is enough to mention two of the latest Bench decisions, namely, (1) Cornmr of Gift Tax Madras v. C. Thiruvenkata Mudaliar, ILR (1977) 1 Mad 53: (1977 Tax LR 1187) and (2) Ramasami Naidu v. M. S. Velappan, (1979) 2 Mad LJ 88. Though the second decision does not refer to the first, to which I was a party, still the principles enunciated in both the decisions are not materially different. Normally speaking, every document has to be construed with reference to the language it contained and therefore a decision construing one document cannot be an authority for construing another document except to the extent that the said decision may lay down certain principles or guidelines.
The principles enunciated in this class of cases is that a testamentary bequest is revocable as the interest contemplated 4,herein is intended to pass only after the lifetime of the testator, while a settlement or a gift which comes into operation immediately is irrevocable. Even if a Will contains a clause that it is not revocable the law makes it revocable whereas in a gift or settlement if there is a clause that the settler or donor can revoke it, still it will remain irrevocable under the law, because the done obtains his interest in the property on the execution of the document itself. Consequently, whether a particular document contains a provision as to whether it is revocable or irrevocable is not decisive of the question whether it is a Will or a gift. Similarly, the caption or the nomenclature given by the parties to the transaction is again not decisive of the question as to whether it is a Will or a gift. If a particular document provides for immediate transfer of the interest from the original owner to somebody else, notwithstanding the fact that the parties called it a Will, it would operate only as a gift. Similarly if a document contains provisions which showed that the disposition would come into existence only on the death of the executant of the document even if the parties call it a settlement, it would be only a Will. The fact of registration alone would not render the document a settlement if it, in other respects, is a Will. Thus, the real and the only reliable test for the purpose of finding out whether the document constitutes a Will or a gift is to examine the nature of the disposition under the document to see whether it had transferred any interest in praesenti in favour of the settlee or whether it intended transfer of interest in favour of the beneficiary only on the death of the executant."
The aforesaid proposition of law is reiterated by the Division Bench in case of G. Narasimhulu Chetti &Ors-Vs- S. Pandurangaiah Chetti & Ors. Reported in AIR 1996 AP 24 in the following"
" 14. In Ignatia Barito v. T.P. Rego, AIR 1933 Mad 492 considering the recitals in the document in question it is held-" A primary test of whether any particular document is a will or not is whether or not it is revocable. If it is irrevocable then it cannot be a will, Another test is that whether a document confers an immediate right to property. Where a document is not a will under both these tests and is registered as a settlement deed when as a will, it would not have required registration, the provision for unborn children and the appointment of the wife of the executant to perform functions such as might be performed by an executrix under a will, will not change the deed of settlement into Will." In this case it was held that the disposition of property was to take effect at once and that it was to be irrevocable."
In case of Krishna Mohan Kul @ Nani Charan Kul & Anr.-Vs- Pratima Maity & Ors reported in (2003) 7 SCC 105 identical reliefs were claimed when challenge was thrown to a deed of settlement as the declaration was sought that the same is void and invalid document. The Apex Court held that the initial onus to prove the validity of the document is on a person who is beneficiary under the said document unless the challenge is thrown on the fraud, misrepresentation or undue influence.
It was further held that in order to uphold the validity of the deed of settlement the first and foremost factor to be borne in mind is that the person conferring the benefit on the other was competent and had an independent advice to execute the same. The Apex Court further restated the principles relating to pardanashin lady to be extended to an illiterate lady as well. The relevant paragraphs are quoted hereunder "12. As has been pointed out by the High Court, the first Appellate Court totally ignored the relevant materials and recorded a completely erroneous finding that there was no material regarding age of the executant when the document in question itself indicated the age. The Court was dealing with a case where an old, ailing illiterate person was stated to be the executant and no witness was examined to prove the execution of the deed or putting of the thumb impression. It has been rightly noticed by the High Court that the courts below have wrongly placed onus to prove execution of the deed by Dasu Charan Kul on the plaintiffs. There was challenge by the plaintiffs to validity of the deed. The onus to prove the validity of the deed of settlement was on defendant No. 1. When fraud, mis-representation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with zealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position. This principle has been engrained in Section 111 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). The rule here laid down is in accordance with a principle long acknowledged and administered in Courts of Equity in England and America. This principle is that he who bargains in a matter of advantage with a person who places a confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The transaction is not necessarily void ipso facto, nor is it necessary for those who inpeach it to establish that there has been fraud or imposition, but the burden of establishing its perfect fairness, adequacy and equity is cast upon the person in whom the confidence has been reposed. The rule applies equally to all persons standing in confidential relations with each other.
Agents, trustees, executors, administrators, auctioneers, and others have been held to fall within the rule. The Section requires that the party on whom the burden of proof is laid should have been in a position of active confidence. Where fraud is alleged, the rule has been clearly established in England that in the case of a stranger equity will not set aside a voluntary deed or donation, however, improvident it may be, if it be free from the imputation of fraud, surprise, undue influence and spontaneously executed or made by the donor with his eyes open. Where an active, confidential, or fiduciary relation exists between the parties, there the burden of proof is on the donee or those claiming through him. It has further been laid down that where a person gains a great advantage over another by a voluntary instrument, the burden of proof is thrown upon the person receiving the benefit and he is under the necessity of showing that the transaction is fair and honest.
13. In judging of the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even de hors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before Court.
16. At this juncture, a classic proposition of law by the Privy Council needs to be noted. In Mst. Farid-Un-Nisa v. Munshi Mukhtar Ahmad & Anr. ( AIR 1925 P.C.
204) it was observed as follows:
'It is, therefore, manifest that the rule evolved for the protection of pardahnashin ladies not be confused with other doctrines, such as fraud, duress and actual undue influence, which apply to all persons whether they be pardahnashin ladies or not".
The ratio laid down in the above noted decisions can be succinctly summarized as under:-
The rule applicable to a pardanashin lady in relation to an execution of a document is extendable to an illiterate lady as both stands on the disadvantages on status. Any document executed by a pardanashin or illiterate lady to her disadvantages must do so with the professional and independent advice after substantially understood the nature of such disposition.
The nature and complexity of the dispositions and unfamiliarity with the subject matter are some of the reasons requiring an increased amount of efficiency of explanation. Apart from the existence of those factors the recitals and the languages used in the document is the other factor to construe the nature of the document and disposition. The executant must expressly and specifically convey its intention to create a right in presentee and not in future.
The fraud, misrepresentation, coercion etc are the other factors to invalidate the instruments/ document, in such case the onus lies on the defendant to prove the same.
There is no quarrel to the proposition of law as laid down in the above noted decisions that the document executed by illiterate pardanashin lady to her disadvantages is required to be proved by the beneficiaries that the said transaction was fair and transparent and on the fair advice extended to her. Once such initial onus is discharged by the beneficiary it shifts upon the persons who challenges the said document on above grounds to prove the contrary. The nomenclature of a document is not the determent factor but required the meticulous reading and construction of the languages and intentions gathered therefrom to ascertain its nature.
The document styled as settlement may be construed as a gift or will depending upon the nature of disposition and the intention of the executants gathered from the languages used therein. The deed of gift takes effect from the date of its execution and the rights are created in the donee in presentee. On the other hand, the will takes effect after the death of the executants. In other words, the will takes effect in future and not in presentee. Atleast there is no ambiguity that the will is revocable in nature even in absence of any express words incorporated therein. The other reasons when a document though not styled as will yet contained a provision of revocation, it cannot be construed to operate in presentee.
The Apex Court in case of P.K. Mohan Ram-Vs- B.N. Ananthachary & Ors. reported in (2010) 4 SCC 161 held that there cannot be a straight jacket formula for construction of the instrument of the document for ascertaining as to whether the right is created in presentee or after the death of the executants. Once the Court after careful examination of the document as a whole finds that the said document has a testamentary character i.e., to take effect after the death of the executant, the immediate right cannot be created in favour of the beneficiary. It is the onerous duty of the Court to carefully examine the substance of the document, the manner in which the disposition is intended, the intention of the executant by the express languages implied therein or by necessary implication and the prohibition, in these words:-
"19. Having noticed the distinction between vested interest and contingent interest, we shall now consider whether Ex.A-2 was a Settlement Deed or a Will.
Although, no strait-jacket formula has been evolved for construction of such instruments, the consistent view of this Court and various High Courts is that while interpreting an instrument to find out whether it is of a testamentary character, which will take effect after the life time of the executant or it is an instrument creating a vested interest in praesenti in favour of a person, the Court has to very carefully examine the document as a whole, look into the substance thereof, the treatment of the subject by the settlor/executant, the intention appearing both by the expressed language employed in the instrument and by necessary implication and the prohibition, if any, contained against revocation thereof. It has also been held that form or nomenclature of the instrument is not conclusive and the Court is required to look into the substance thereof."
In this regard the provision contained in Section 19 and 21 of the Transfer of Property Act can also be placed in action defining the vested interest and the contingent interest. The aforesaid sections are quoted as under:-
" 19. Vested interest.--Where, on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer. A vested interest is not defeated by the death of the transferee before he obtains possession. Explanation.--An intention that an interest shall not be vested is not to be inferred merely from a provision whereby the enjoyment thereof is postponed, or whereby a prior interest in the same property is given or reserved to some other person, or whereby income arising from the property is directed to be accumulated until the time of enjoyment arrives, or from a provision that if a particular event shall happen the interest shall pass to another person.
21.Contingent interest.--Where, on a transfer of property, an interest therein is created in favour of a person to take effect only on the happening of a specified uncertain event, or if a specified uncertain event shall not happen, such person thereby acquires a contingent interest in the property. Such interest becomes a vested interest, in the former case, on the happening of the event, in the latter, when the happening of the event becomes impossible.
(Exception) --Where, under a transfer of property, a person becomes entitled to an interest therein upon attaining a particular age, and the transferor also gives to him absolutely the income to arise from such interest before he reaches that age, or directs the income or so much thereof as may be necessary to be applied for his benefit, such interest is not contingent."
From the reading of the aforesaid provisions and the language implied therein when an interest is created on a person on transfer of property in absence of any time when it would take effect or specifying the time of its effectuation or on the happening of an event which is certain, such interest is a vested interest unless the contrary intention appears therefrom. On the other hand the contingent interest is such which would take effect on a specified uncertain event or if such specified uncertain event does not happen and /or happening of such interest it would become a vested interest.
In order to ascertain whether the interest is vested or contingent, the Court should undertake the task of construction with a bias infavour of the vested interest unless the contrary intention is seemingly definite and clear. The another proposition which can be seen is that in the event the enjoyment of property is postponed and the current income is enjoyed by the executant, the gift is vested and not contingent. The canon of interpretation of such document is again founded on the intention of the executant gathered from the languages used therein as held in paragraph 18:-
"18. This Court referred to Sections 19 and 21 of the 1882 Act, Sections 119 and 120 of the Succession Act and reiterated one of the propositions laid down in Rajes Kanta Roy v. Shanti Debi by making the following observations : ( Subbarao Case, SCC p.210, para 12) "12..... Although the question whether the interest created is a vested or a contingent interest is dependent upon the intention to be gathered from a comprehensive view of all the terms of the document creating the interest, the court while construing the document has to approach the task of construction in such cases with a bias in favour of vested interest unless the intention to the contrary is definite and clear."
Reverting back to the case in hand it is undisputed that the defendant no.1/respondent was brought at the age of 3 to 4 years by the parents of the present plaintiff/appellant and was brought up by them treating him as son.
The plaintiff/appellant has also stated that he all along lived with the parents till their death. Both the parents executed the deed of settlement on 30th March, 1984 and settled a part of the disputed property in favour of the defendant no.1/respondent. After the death of the father of the plaintiff/appellant the mother executed two separate deed of settlement dated 1st March, 1986 and 24th April, 1987 whereby settled the remaining portion of the disputed property in favour of the defendant no.1/respondent. The mother survived for more than 4 years from the date of the execution of the last deed of settlement i.e., 24th April 1987. The languages as used in all the three deeds of settlement are more or less similar and identical.
However, in a later two deeds executed by the mother of the plaintiff/respondent she expressed that by the first deed of settlement executed jointly by herself and her husband a portion of the disputed property has already been given to the defendant no.1/appellant on the death of the husband. Apart from the same we do not find any distinctive difference in all such deeds.
By virtue of the aforesaid deeds they divested their right, title and interest reserving the right to manage the said property during their respective lifetime as trustee and the trust would come to an end upon their death. According to Mr. Banerjee the language used therein conveyed the intention of the executants that such right was created in future and not in presentee. We had an occasion to peruse both the translated versions of the aforesaid deeds as well as the original deeds. Though some of the sentences appeared to have been used in future tense but the intention is definite and clear from the prohibitory clause. It is clearly expressed therein that so long the executants are alive the defendant no.1/respondent shall not sell, alienate and transfer the aforesaid property., On the next breath it is clearly indicated that if he intends to transfer the properties comprised in the said deeds he shall do so with their permission.
The stark distinction between the gift and will is that the gift deed takes effect immediately on mere execution and acceptance. On the other hand, the will takes effect after the death of the testator or testatrix or the executant. The intention gathered from the aforesaid deeds are expressive, specific, clear and definite that the right is created in presentee because of the prohibition reserved therein. The executants did not reserve any right to revoke the said deeds during their lifetime.
It is beyond cavil that if the executant reserve the right to revoke the said deed at any point of time during their lifetime it does not create the interest in the beneficiaries in presentee. We, therefore, do not find that the aforesaid deeds are in effect a will and not the gift or the settlement creating immediate right in presentee in favour of the defendant no.1/respondent.
Taking up another issue as to whether there was a proper advice given to the executant being an illiterate lady to divest her right, title and interest to her disadvantages, the evidence of D.W. 2 has thrown light thereupon. The said witness is a family legal advisor and deposed that the executant intended to create right in favour of the defendant no.1/respondent and he advised them to execute the aforesaid deeds. So far as the first deed is concerned it was jointly executed by the parents of the plaintiff/appellant and it appears from the evidence that the father was a literate person and was the jury in the Howrah Court. The other two deeds executed by the mother is in tune with the first deed and therefore, it cannot be said that the same was not executed on proper advice given to her.
A plea has been taken that even if the father was a literate person yet he put his thumb impression in the first deed and therefore, it is shrouded with suspicious circumstances. The D.W.2 clearly deposed that because of the age his hand was trembling and he decided to put the thumb impression. The said D.W. 2 also deposed that a certificate to that effect is appended in the first deed to corroborate the same.
The credibility of the evidence of the D.W.2 cannot be doubted. The plaintiff/ appellant has not denied in her evidence that he was not the family legal advisor nor there is a slightest whisper that he collided and connived with the defendant no.1/ respondent.
According to Mr. Banerjee there is no reflection in the other two deeds that the mother of the plaintiff/appellant have understood the contents of the said deed nor there is any certificate appended at the foot of the said document that the same was read over and explained to her. We examined the said document and we find that the aforesaid statements are typed therein and the executant duly put her signature beneath the same. We do not find that there is a necessity of incorporating a separate certificate in the handwriting of the person who read over and explained the contents of the said document. If the document contained such statement it complies with the basic requirements and/or formalities. Furthermore, the executant did not come forward to challenge the said deed on above ground during her lifetime. It is only when an FIR was lodged against the plaintiff/appellant by the defendant no.1/ respondent in respect of the other property, the present suit is filed challenging the aforesaid deeds. The plaintiff/appellant in her deposition also admitted that she filed this suit as a criminal case was initiated at the behest of the defendant no.1/respondent. We do not find any justification in the points taken by Mr. Banerjee that the deed is invalid.
So far as point of limitation is concerned, the Trial Court held that the suit is barred by limitation having not filed within three years from the date of the knowledge of the aforesaid deeds. The Trial Court further held that the plaintiff/appellant was aware of the execution of the aforesaid deeds in the year 1991 and did not take any steps to challenge the aforesaid deeds but the challenge came only after starting of the criminal case at the instance of the defendant no.1 respondent. Though the Ld. Advocate for the respondent tried to convince us that the word "
notice" appearing in Section 3 explanation 2 of the Transfer of Property Act is of wide import and imbibe within itself the constructive knowledge of the existence and execution of the aforesaid deeds, but, we do not find that the notice and the knowledge are synonymous for the purpose of limitation. The Apex Court in case of Ram Niwas (Dead) -Vs- Bano (Smt) & Ors ( supra) held:-
"18. Both the learned Single Judge as well as the learned Judges of the Division Bench of the High Court dealt with the question whether the purchasers had actual knowledge of Ext.1, the earlier contract, and on evidence found that the purchasers did not have any knowledge of it. But they failed to notice the provisions of Explanation II to Section 3 of the Transfer of Property Act which is germane on the point of notice. Indeed, Issue 10 was not properly framed. The word " notice" should have been used in Issue 10 instead of "knowledge" because Section 19(b) uses the word "notice". From the definition of the expression " a person is said to have notice" in Section 3 of the Transfer of Property Act, it is plain that the word "notice" is of wider import than the word " knowledge". A person may not have actual knowledge of a fact but he may have notice of it having regard to the aforementioned definition and Explanation II thereto. If the purchasers have relied upon the assertion of the vendor or on their own knowledge and abstained from making inquiry into the real nature of the possession of the tenant, they cannot escape from the consequences of the deemed notice under Explanation II to Section 3 of the Transfer of Property Act. On this point, in the light of the above discussion, we hold that the purchasers will be deemed to have notice of Ext. 1, should it be found to be true and valid."
Such observations clearly distinguish the notice with the knowledge. It is clearly held therein that even if the word notice is of wide import than the knowledge but a person may not have the knowledge of the fact but shall be deemed to have a notice of such fact. Article 56 of the Limitation Act clearly provides that a person must have a knowledge of such facts and the suit is to be instituted within three years therefrom. The plaintiff/appellant categorically stated in her evidence that the present suit is filed because of lodging of the FIR by the defendant no.1/respondent which appears to have swayed the mind of the Learned Judge in the Trial Court that she had knowledge. The matter can be viewed from another angle as well.
It is a specific case of the plaintiff/ appellant that after the death of the mother on 21st December, 1991 the defendant no.1 /respondent used to pay the tax levied on the subject property. She further stated that she demanded the possession from the said defendant after the death of her mother but he refused to vacate the same. A plea of license in respect of one room in the subject property is also taken in the plaint and it can be reasonably deciphered therefrom that the demand to vacate the suit premises was immediately upon the death of the mother.
Furthermore, it is a categorical stand of the plaintiff/appellant that after the death of the father she demanded the property to be given to her by way of partition but the mother communicated to her that after her death it will go to her. She categorically admitted that she has no document nor any witness in support of the aforesaid contention. The plaintiff/ appellant was all along demanding the property to be given to her even during the life time of the mother and it is inconceivable that she allowed the defendant no.1/respondent to continue in occupation even after her death.
The defendant no.1/respondent categorically stated that after the death of the mother when she demanded the property it was divulged to her that she has executed the deed of settlement in their favour and which does not appear to be unbelievable statement. The Trial Court further found that though the knowledge is imported from the certified copy obtained from the registration office but the plaintiff/ appellant did not file any searching slip which is the first step to enquire whether any documents are executed in respect of the said property. Upon the meaningful reading of the deposition of the respective parties we had no hesitation that the plaintiff/appellant had all along the knowledge of the execution and the existence of the aforesaid deeds and the suit is admittedly filed after 5 years of the death of the mother and therefore, is clearly barred by limitation.
Apart from the same it is a specific stand of the plaintiff/ appellant that the defendant no.1/respondent was paying the tax in respect of the subject property and therefore, the story of a permissive occupation in respect of one room is unbelievable and we do not find any infirmity and/or illegality in rejecting the claim by the Trial Court.
The appeal is devoid of merit. The same is hereby dismissed.
I agree.
(Hiranmay Bhattacharyya, J.) (Harish Tandon, J.)