Joytosh Banerjee, J. - (1.) These two appeals from the appellate decree arose from the decision in T.A. Nos. 208/83 and T.A. 209/83, which were heard analogously and were disposed of by the judgment dated 8.3.1984 and decree thereof passed by the Assistant district judge 3rd Court, Midnapore by which the learned judge allowed T.A No. 208/83 and dismissed T.A. No. 209 of 83.
(2.) There were two Title Suit, namely, T.S. Mo. 182/74 and T.S 200/74 which were disposed of by the Munsif, 3rd Court, Tamluk by a common judgment. In T.S 182/74, the properties described in 'ka' and 'kha' schedule of the plaint originally belonged to defendant No. 1, the father-in-law of plaintiff No. 2 and the father of plaintiff No. 1. It was alleged that the said defendant by a registered deed of gift executed on 25.5.74, gifted the said properties to the plaintiffs along with other properties and delivered possession of those properties in favour of the plaintiffs. The said gift was made as consideration of the dowry promises to be paid at the time of the marriage of the plaintiffs. It was alleged by the plaintiffs that after the said gift the defendant No. 1 had no right, title and possession over the disputed properties. But they came to know on 29.4.74 that the disputed properties along with other properties were gifted away by the said defendant No. 1 to defendant No. 2. According to the case of the plaintiffs, the said defendants in collusion with each other have been trying to grab the disputed properties. Hence the suit. The defendant Nos. 1 to 3 contested the suit by filing a written statement denying all material allegations made in the plaint. It was specifically denied the alleged execution of the deed of gift in favour of the plaintiffs by defendant No. 1. It was also contended that he had no possession in the disputed properties and the deed of gift executed in favour of the plaintiffs was collusive and the said deed was not attested and executed. The contents of the deed were never read over and explained to the defendant No. 1. The said deed was a product of practicing fraud on the defendant No. 1. It was specifically alleged that the defendant No. 1 while he had been in possession gave away the 'kha' schedule properties to defendant No. 2 by a registered deed of gift dated 19.6.74 and delivered possession. It is the case of the defendants that defendant No. 1 had intention to give away 'kha' schedule property to the plaintiffs who had no dwelling house and requested plaintiff No. 2, his son-in-law to get a deed of gift prepared in respect of 'Kha' schedule property only. He also had intention to give away 11 decimals of lands appertained into 'kha' schedule properties to defendant No. 2 and requested defendant No. 3 to get such a deed of gift prepared. The plaintiff No. 2 got a deed of gift prepared and got the said deed registered after getting the same executed by defendant No. 1, who did in good faith, that through that deed he was giving away 'kha' schedule property to the plaintiffs. The specific case of the defendants was that defendant No. 1 was not aware of the fraud practiced on him by the plaintiff No. 2. The defendant took the plea that in the facts and circumstances of the case, the deed of gift in favour of the plaintiffs was not binding upon them and therefore the suit filed by the plaintiffs was liable to be dismissed. In T.S. 200/74 plaintiffs filed a suit for declaration title on the suit properties on the basis of a memo of Nirupan settlement and for permanent injunction as well as for a declaration that the Deed of Gift executed by defendant No. 3 is not binding upon the plaintiffs and the same was fraudulent, coercive and the result of causing undue influence, to the properties described in both the schedule of the plaint originally belonged to one Naran Chandra Panja and Paran Chandra Panja. After the death of Naran Panja the half portion of the said properties along with others devolved upon his wife Sulochana Dasi and after her death the said property devolved upon defendant No. 3 Satya Charan Panja as the only heir of Sulochana Dasi. The defendant No. 3 who is the husband of plaintiff No. 1 and father of plaintiff Nos. 2, 3, 4 and defendant No. 1, father-in-law of plaintiff No. 5 and defendant No. 2. The defendant No. 3 has only 4 daughters, has no male issue. All the daughters were married long back. The said defendant No. 3 by his own accord settled his landed properties with the plaintiffs and defendant No. 2 and executed the memo of Nirupan on 2nd February, 1965 in presence of witnesses and delivered possession to the plaintiff Nos. 1 to 4 and defendant No. 1. It is further alleged that the defendant No. 3 prior to the above execution, by a registered deed of gift in the year 1371 B.S. gifted some landed property to defendant No. 1 and by another deed of gift dated 9th May, 1964 (5th Jaistha, 1371 B.S gifted some landed property to the plaintiff No. 4 and 5. According to the said Nirupanpatra, the said deed of gift, the plaintiffs and the defendant No. 1 took their respective possession as described in those deeds of gifts. In this way, the total land which was settled by the Nirupanpatra was about 1.68 acres within Mouza Chatinda in P.S Panskura in the district of Midnapore, presently east Midnapore. It is further alleged that the said defendant No. 3 became addicted to drinking liquors in coming into contact with some bad elements of the locality including defendant No. 2 and his associates and most of the time the defendant No. 3 used to spend his days in the house of the said defendant No. 2. Since 1973 the defendant No. 3 became almost blind and was continuously in ill health. It was further alleged that defendant No. 1 and 2 in collusion with each other exerted their undue influence upon the defendant No. 3 in trying to grab the properties, which were the subject-matter of the settlement as aforesaid. It is further alleged that while these plaintiffs were in possession of the said lands as the per said settlement, they were astonished to hear on 29th July, 1974 that the said properties were alleged to have been gifted to defendant No. 1. In this background, the plaintiffs filed the suit for declaration that the deed of gift executed 19th June, 1974 and registered on 1st July, 1974 is collusive, fraudulent etc. For further declaration that the plaintiff's have right, title and interest in 'a' schedule property on the basis of the memo of Nirupanpatra dated 2nd February, 1965 and also for permanent injunction.
(3.) The learned Muncie who tried the suits analogously raised certain issues for the trial of the suits including Issue No. 4 which reads as follows:- Have the plaintiffs any right, title and interest in the suit land? Is the impugned deed of gift executed by the defendant No. 1 in favour of defendant No. 2 illegal, fraudulent and ineffective and also Issue No. 5 touching the questions whether the plaintiffs were entitled to get any decree for declaration as prayed for on the basis of Nirupanpatra dated 2.2.1965. Learned trial Court on going through the evidence on record and on consideration of the document, namely, Nirupanpatra found that the said document created interest in the immovable property and those interests were present demise. Therefore, the documents, namely, deeds of Nirupanpatra were compulsorily registrable under Section 17 of the Indian Registration Act as those documents were unregistered, the same could not be used even for collateral purposes under Section 49 of the same act as the use of collateral purpose had limited meaning and the term could not be used for creating title. Regarding possession of the suit properties, the learned trial Court noted that P.W. 1 in support of his contention that he had been possessing the suit properties produced 17 rent receipts. But on careful scrutiny found that some rent receipts Ext. 2 series were obtained long after the filing of the suit and some rent receipts did not relate to the suit land. The learned Court further noted that it was alleged by P.W. 1 that he got the name mutated in respect of the suit land, but no relevant document was produced. It was claimed that draft record of rights prepared under the provisions of West Bengal Land Reforms Act, their names were included but the learned Court rightly observed that there was no presumptive value of such recording unless there was finally published record of rights. Considering all the evidence on record and other facts and circumstances of the case, the trial Court came to a firm finding that plaintiffs failed to prove their case. With this finding learned trial Court dismissed both the suits. In appeal, learned Assistant District Judge, 3rd Court, noted the suit properties originally belonged to defendant No. 3. It was not disputed that the said defendant executed a deed of gift on 19.5.64 and registered on 25.5.64 whereby he gave away the properties covered in the said deed. The learned judge of the appellate Court below noted that Para-21 of the written statement filed by the contesting defendant, it was clearly stated that the defendant No. 3 intended to give away some properties to the plaintiffs, but according to those defendants, the said defendant entrusted the plaintiff No. 2 who happened to be the son-in-law of the defendant No. 3 to get a draft deed of gift prepared in respect of the 'kha' schedule properties only, but the said plaintiff practised fraud on the defendant No. 3 and got a deed of gift prepared in respect of the disputed properties also and manage to get the same executed by the defendant No. 3. It was observed that in support of such contention no document or any cogent evidence was produced or adduced and therefore it did not find any basis in the contention set forth in para 21 of the written statement. In that background, the deed of gift in favour of the plaintiffs stand to be valid deed of gift executed properly by the defendant No. 1 and by the said document title in the disputed properties passed to the plaintiffs. So the learned judge of the appellate Court below found that the learned Muncie was not justified in dismissing the suit that is to say T.S. No. 182 of 1974. As regards the T.A. 209 of 1983, the case of the plaintiffs was that originally Satya Charan Panja settled his landed properties with the defendant No. 1 and executed memo of Nirupan on February 2, 1965 and delivered up possession to the plaintiff Nos. 1 to 4 and defendant No. 1 only and since then the plaintiff started to possess the properties allotted in their favour by the said deed of settlement but on July 29, 1974 they came to know that the said properties allegedly were given away by a deed of gift executed by the said admitted owner to defendant No. 1 on July 1, 1974. The plaintiff in that case prayed for a declaration that the said deed of gift is void and not binding on them. The learned judge of the first appellate Court found that the basis of such claim was an unregistered document and against it there was a deed of gift by which the same property had been transferred. So it is a conflict between an unregistered document and a registered one where the registered document would prevail and ultimately came to a conclusion that the plaintiffs of the suit through the said deed of unregistered deed of Nirupanpatra did not acquire any title. With such finding, the learned appellate Court below affirmed the finding of the learned Muncie passed in T.S. 200/1974 and dismissed the appeal being T.A. 209 of 1983. ;