- (1.) This Court has heard the learned Advocates for the respective parties. The facts of the case, briefly, are as follows: The plaintiff-respondent filed a Suit being Title Suit No. 118 of 1990 in the Court of the learned Munsif at Raigunge against the defendants-appellants and their father Chandra Kanta Debsharma alias Sarkar. In such suit the plaintiff-respondent prayed for a declaration of his right, title and interest in the suit property and for a declaration that the deed of gift executed by the plaintiffs mother on 27.6.1988 and registered on 12.10.1988 in favour of the defendant Nos. 2 to 5 is illegal, not acted upon, void and not binding upon the plaintiff-respondent. The plaintiff-respondent also prayed for decree for perpetual injunction restraining the defendants-appellants from dispossessing the plaintiff from the suit property.
(2.) The said Suit was contested by the defendant No. 1 by filing a written statement. Defendant Nos. 2 to 5 are the sons of defendant No. 1. The learned Trial Court by his judgment and decree dated 31.3.1992 dismissed the said Suit upon finding inter alia that admittedly the suit property belonged to Laxmi Kanta Barman and on his death his wife Pramila Bala Roy and his two sons i.e. the plaintiff and his brother, Bejoy Barman, inherited the suit property in equal shares but Bejoy Barman died a bachelor. Thus, Pramila Bala Roy became the owner of 2/3rd share in the property left by Laxmi Kanta Barman. There is no dispute with regard to the fact that the plaintiff ultimately had 1/3rd share and Pramila Bala Barman had 2/3rd share in the property left by Laxmi Kanta Barman. The main question involved in the suit was with regard to the legality and validity of the said deed of gift dated 27.6.1988 (registered on 12.10.1988). The learned Trial Court found that the certified copy of the deed of gift was adduced in evidence as Exbt. 'B' and that the defendants-appellants had called for the original deed from the registration office concerned but the original deed was not produced by the said office. It was found by the learned Trial Court that D.Ws. 5 and 6 are the attesting witnesses to the deed and that the deed was executed by Pramila Bala though Pramila Bala was an illiterate lady. The learned Trial Court found from evidence of D.Ws. 5 and 6 that they had no animosity to either of the parties and that there is nothing to disbelieve them and that the said witnesses have deposed that the deed was read over and explained to Pramila Bala and in their presence Pramila Bala executed the gift deed. The learned Trial Court found that the said Pramila Bala was duly identified and the learned Trial Court was satisfied with regard to the execution of the deed. The plaintiff's allegation that the gift deed was vitiated by fraud and/or misrepresentation was not believed by the learned Trial Court and the learned Trial Court ultimately dismissed the Suit. The plaintiff has alleged that the defendant No. 1 (Chandra Kanta Debsharma alias Sarkar) had misrepresented to the said Pramila Bala that for the purpose of obtaining a bank loan, certain documents were required to be executed and under the cover of such misrepresentation, the defendant No. 1 ultimately got a gift deed executed by said Pramila Bala and such act on the part of the defendant No. 1 was a fraudulent act. This story did not find any favour with the learned Trial Court.
(3.) The plaintiff-respondent filed a Title Appeal No. 65 of 1992 challenging the judgement and decree passed by the learned Trial Court and such Title Appeal was placed before the learned Assistant District Judge, Uttar Dinajpur at Raigunge and ultimately, the said learned Lower Appellate Court by its judgement and decree dated 25.8.1993 allowed the said Title Appeal by setting aside the judgement and decreed passed by the learned Trial Court. The defendants have preferred the instant second appeal challenging the said judgement and decree of the learned Lower Appellate Court. During the pendency of the second appeal the defendant No. 1 died and since his sons (defendant Nos. 2 to 5) were already on record, the name of the defendant No. 1 has been deleted. The defendant Nos. 2 to 5 appellants have proceeded with the appeal. The following substantial questions of law were formulated for the purpose of hearing the appeal: i) Whether or not the learned Lower Appellate Court committed an error in not coming to any finding with regard to the case of the plaintiff/respondent that the defendant No. 1 had obtained the deed of gift from the plaintiffs mother by way of misrepresentation and by way of committing fraud when the onus was upon the plaintiff to prove such allegations of misrepresentation and/or fraud. ii) Whether or not the learned Lower Appellate Court committed an error in holding that there is no reason to believe that the plaintiffs mother voluntarily gifted the suit property to the defendant Nos. 2 to 5 on the basis of surmises and conjectures as it appears that while coming to such finding that the learned Lower Appellate Court took into consideration the fact that the defendant No. 1's legally married wife and also defendant Nos. 2 to 5 cannot be believed to have allowed the defendant No. 1 to marry plaintiffs mother for the second time and that the alleged marriage of the defendant No. 1 and the plaintiffs mother and the execution and registration of the alleged deed of gift and the death of the plaintiffs mother took place within three years. iii) Whether or not the learned Lower Appellate Court erred in drawing adverse inference against the execution and registration of the alleged deed of gift as it could not be produced even when the Sub-Registration Office was summoned to that effect when the Xerox copy of the said deed of gift was adduced in evidence and the formal proof of the said deed of gift was alleged to have been waived by the other side. iv) Whether or not the Learned Lower Appellate Court committed an error in holding that the deed of gift in question cannot be said to have been acted upon in absence of evidence that the plaintiffs mother delivered possession of her share in the suit property to the defendant Nos. 2 to 5 on the face of recitals in the deed in question.;