Author: Shalu Goyal, Graduated from ICFAI Law School, ICFAI University Dehradun
The Calcutta High Court has held that “The registration of a gift deed by the legal representative of the donor post his death has the same effect as its registration by the donor himself during his lifetime.”
This appeal was filed to challenge the legality and validity of the judgment and decree of reversal order passed by the learned Civil Judge (Senior Division), Kandi Murshidabad.
The substantial question of law before the Hon’ble High Court is-
“Whether the learned 1st Appellate Court committed substantial error of law in declaring that the deed bearing No. 213 of 1994 is void and thus setting aside the same and decreeing the suit in favour of the plaintiffs.”
Counsel for the appellants submitted that the 1st Appellate Court failed to consider that the respondents made out a case to the effect that the deed of gift in question was not executed by Jagomaya Dasi, on the contrary It was pleaded that defendant No.1 and 2 in collusion with some interested persons of crooked nature manufactured the said deed of gift. It was also pleaded that jagomaya dasi lost her senses in her last days whereas she was living in the care of defendants in village.
He submitted that the plaintiffs alleged that the defendants got the deed of gift in question manufactured by practicing fraud. Order 6 Rule 4 of Code of Civil Procedure requires that complete particulars of fraud shall be stated in the pleadings. Whenever a party wants to put forth a contention of fraud, it has been specifically pleaded and proved. In the instant case, no particular with regard to the allegation of fraud against the defendants was pleaded by the plaintiffs.
He also submitted that since the plaintiffs , who are respondents in present appeal, claimed the deed of gift was manufactured with the help of some interested persons with defendants amd it was created by practicing fraud upon the donor, burden of proof lies upon the plaintiffs to prove their case. But same was wrongly placed upon the defendants by the 1st appellant Court.
Learned Counsel for the respondents argued that as a general rule, in case of a plea of fraud or undue influence In the matter of execution of a document, burden is upon the party who pleas fraud or undue influence. He referred the case of Subash Chandra v. Ganga Prasad AIR 1967 SC 878. In this it was held by the Hon’ble Supreme Court that the court trying the case of undue influence must consider two things to start with namely, 1- Are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor? And 2- Has the donee used that position to obtain an unfair advantage over the donor? Upon the determination of this issue, a third point emerges which is that the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in position to dominate the will of the other.
The Bench said that However, this above mentioned principle of law relating to burden of proof is not applicable under the facts and circumstances of the instant case because the plaintiffs/respondents did not plead execution of deed of gift. The case of M. Rangasamy V. Rangammal reported in (2003) 7 SCC 683 was also referred. Hence, it is needless to say that merely because the parties are related to each other or the donor was old and infirm, no presumption of undue influence or fraud can arise.
The Bench of High Court relied upon the case of Bhabotosh v. Soleiman reported in 33 Cal 584 where a Hindu man executed a deed of gift in favour of his wife and died, and the deed was subsequently registered at the instance of the widow-donee. Validity of the deed of gift was challenged on the ground that it was registered subsequent to the death of the donor. This Court held that subsequent registration of a deed of gift after death of the donor at the instance of the done did not offend the provisions of Section 123 of the Transfer of Property Act. The Post-mortem registration of a deed of gift by the legal representative of the donor has the same effect as its registration by the donor himself during his lifetime.
Hon’ble High Court while pronouncing Judgment said that “The judgment and decree passed by the learned Judge in 1st Appellate Court in liable to be set aside and the instant Second Appeal deserves to be allowed. Therefore, this appeal be and the same is allowed on contest, however without cost. The Judgment and decree passed by the learned Civil Judge (Senior Division) is set aside and the judgment and decree of dismissal of the suit passed by learned Civil Judge (Junior Division).
To Read Judgment: Click Here!
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