KAKALI GHOSH Vs. MADAN MOHAN GHOSH & ANR.

JUDGEMENT

(1.) The present revisional application at the instance of the plaintiff in Title Suit No. 133 of 2015, pending before the Court of the learned Civil Judge, Senior Division, Sealdah is directed against the orders dated Aug. 5, 2016 and Sept. 6, 2016 passed by the learned Court below. By the first impugned order dated Aug. 5, 2016 the learned Court below rejected the application filed by the plaintiff-petitioner praying for, expunging the registered deed of gift dated July 4, 2015 (hereinafter referred to as the said deed of gift ) executed by the defendant-opposite party no.1, in favour of the defendant-opposite party no.2, as Exhibit A from the list of exhibits of the suit. By the second impugned order dated Sept. 6, 2016 the learned Court below rejected, the application filed by the plaintiff petitioner under Sec. 151 of the Code of Civil Procedure, 1908 praying for, recalling of the first impugned order dated Aug. 05, 2016 and further directing closure of the cross-examination of the defendant no. 1 opposite party.

(2.) So far as the challenge against the first impugned order dated Aug. 5, 2016 the same raises a question of law that whether in view of the proviso to Sec. 68 of the Evidence Act, 1872 if the execution of a registered deed of gift is admitted by the donour himself the same can be exhibited in a suit, in the absence of any evidence being adduced by any of the attesting witnesses. In the present case, the plaintiff-petitioner in her suit claimed a declaration that the said deed of gift executed by the defendant-opposite party no.1 transferring of a portion of his property situate at premises no. 12/1, Ganguli Para Lane, Kolkata is void, invalid and inoperative and not binding upon her and liable to be cancelled. In the plaint it is the case of the plaintiff-petitioner that at the time of execution of the said deed of gift the defendant-opposite party no.1 was suffering from parkinson, neuroepileptic, renal disorder dease, hiper tension and he also has a pacemaker. The said deed of gift is duly registered under the Registration Act, 1908 witnessed by two witnesses. At the trial of the suit, the defendant-opposite party no.1 adduced evidence in his examination in chief by way of affidavit evidence, he proved his signature on the said deed of gift and also stated that he has himself executed the said deed of gift. Thereafter, the said deed of gift was tendered and exhibited as Exhibit- A of the suit, without any objection being raised on behalf of the plaintiff-petitioner. On Sept. 6, 2016 the plaintiff-petitioner moved an application praying for, before the learned Court below praying for, expunging of the said registered deed of gift from the list of exhibits in the suit. By the order dated Aug. 5, 2016 the learned Court below held that in view of the proviso to Sec. 68 of the Evidence Act, in the present case when the defendant-opposite party no.1 admitted the execution of the said registered deed of gift, the absence of any of the two witnesses shall not stand in the way of the same being proved and being marked as an exhibit. Thus, as mentioned earlier, by the first impugned order dated August 5, 2016 the learned Court below rejected the application filed by the plaintiff-petitioner for expunging the said registered deed of gift from the list of exhibits in the suit.

(3.) Mr. Sukanta Chakraborty, learned advocate appearing for the petitioner in the present revisional application strenuously contended that as per, Sec. 123 of the Transfer of Property Act, a deed of gift in respect of an immovable property is not only required to be registered under the Registration Act, 1908, but the same has to be attested by at least two witnesses. According to him, as per section 68 of the evidence Act a deed of gift in respect of an immovable property, unless being proved by anyone of the two attesting witnesses, the same cannot be proved or exhibited in the suit. He strenuously contended that when the execution of the said deed of gift is not proved by any of the two witnesses mentioned therein, the learned Court below fell into an error of law in exhibiting the said deed of gift as an exhibit. He also contended that in the present case when the said deed of gift could not be exhibited, the learned Court below committed a further patent error of law in not allowing the application filed by the plaintiff-petitioner for expunging the said registered deed of gift from the list of exhibits in the suit. According to Mr. Chakraborty, on the above grounds already urged on behalf of the plaintiff petitioner, even the second impugned order dated Sept. 06, 2016 is also vitiated by failure of exercise of jurisdiction by the learned Court. He also contended that the plaintiff-petitioner bona fide prayed for adjournment of the further cross-examination of the defendant-opposite party no.1, but the learned Court below fell into an error in rejecting such prayer of the plaintiff-petitioner and concluding the cross-examination of the defendant-opposite party resulting in the plaintiff petitioner suffering injustice.