Sabita Barik & Anr. Vs Namita Barik & Ors. — Calcutta HC (2025) — LawSathi Research

Sabita Barik & Anr. Vs Namita Barik & Ors. — Calcutta HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

None; the appeal and the connected application CAN 1 of 2013 (Old CAN 9760 of 2013) stand dismissed, with no order as to costs.

Issue for consideration

Whether the learned Appellate Judge erred in law in reversing the findings of the learned Trial Judge in the absence of any specific challenge to the registration of the document and/or any pleading as to impersonation of the said donor. +3 more

Court's answer

By application of the parameter of preponderance of probabilities, the learned Appellate Judge arrived at a conclusion which is one of the plausible views in the facts and circumstances of the case.

Ratio / Principle

Clear and specific averments existed in the plaint regarding the alleged donor's condition and the circumstances of the registration, including that Mrityunjoy Barik was not in a position on September 4, 2004, the purported date of the gift deed, to execute the said deed.

Key takeaways

The foundational pleadings underlying the PW1 evidence — that at the juncture when the gift deed was executed the alleged donor was not and could not be in a position to execute it — are amply present in the plaint.ratio¶20
This Court found no reason to substitute its views for those of the First Appellate Court, particularly since there was no legal or factual error in its judgment.ratio¶22
There was no perversity in the judgment of the first Appellate Court.

Detailed headnote1 paragraphs

Second Appeal SA No. 280 of 2014 (decision dated February 18, 2025) — dismissed under Order XLI Rule 11 of the Code of Civil Procedure for want of any substantial question of law. The appeal, brought by defendant no. 1/appellant no. 1 and the proforma defendants (Kumar Sabita Barik and another) against Smt. Namita Barik and others, challenged the first appellate judgment which had partially modified and partially reversed the Trial Judge's decree by holding each plaintiff entitled to a 1/6th share and the gift deed executed by late Mrityunjoy Barik void, inoperative and not binding on the plaintiffs. The appellants argued there was no specific challenge to registration or pleading of impersonation, and that the decree traversed beyond the pleadings. The Court found the plaint carried clear, specific and foundational averments — the eighty year-old donor suffering cerebral thrombosis, hospitalized at Nandakumar Hospital from August 31, 2004 to September 8, 2004 and referred to Tamluk Hospital, taken unconscious to Khanchi Sub Registry Office where the deed was registered, and specifically averred incapable of executing the deed on September 4, 2004 (he died on September 9, 2004). The Appellate Judge's conclusion, reached on the parameter of preponderance of probabilities, was one of the plausible views, free of legal or factual error and perversity; hence this Court declined to substitute its views. Connected application CAN 1 of 2013 (Old CAN 9760 of 2013) also dismissed; no order as to costs.

D/L.22. February 18, 2025. MNS.

SA No. 280 of 2014

CAN 1 of 2013 (Old CAN 9760 of 2013)

Kumar Sabita Barik and another Vs. Smt. Namita Barik and others

Mr. Anit Kumar Rakshit

… for the appellants.

The present Second Appeal has been preferred by one of the defendants and the proforma defendants in a suit for declaration that a gift deed executed by the admitted owner late Mrityunjoy Barik in favour of the defendant no. 1/appellant no. 1 was void, inoperative and not binding on the plaintiffs as well as for declaration of the title of the plaintiffs and consequential permanent injunction.

The learned Trial Judge declared the half share of the plaintiffs in the suit property but did not grant any decree as prayed for in respect of the gift deed.

However, the learned Appellate Judge partially modified and partially reversed the decision of the learned Trial Judge by holding that each of the plaintiffs have 1/6^th share and that the deed of gift was void, inoperative and not binding on the plaintiffs.

The premise of the conclusion of the learned Appellate Judge regarding the deed was a

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sequence of events, which was established by plaintiff no. 1 as PW1. The alleged donor Mrityunjoy Barik was hospitalized between August 31, 2004 and September 8, 2004 in the Nandakumar Hospital due to cerebral infraction. Thereafter, he was advised to be taken to the Tamluk Hospital and was discharged from the Nandakumar Hospital on September 8, 2004.

In the wee hours of the morning on September 9, 2004, that is, the very next day, the said Mrityunjoy Barik met his demise. The gift deed-in-question was allegedly executed on September 4, 2004, in the thick of the illness of Mrityunjoy Barik when he was hospitalized.

Learned counsel appearing for the appellants argues that the learned Appellate Judge erred in law in reversing the findings of the learned Trial Judge in the absence of any specific challenge to the registration of the document and/or any pleading as to impersonation of the said donor.

It is further argued that the learned Appellate Judge traversed beyond the pleadings by passing a decree invalidating the gift deed, thereby reversing the trial court’s judgment and decree to that extent.

However, on a perusal of the judgment of the learned first Appellate Court, we find that there were clear averments in the plaint as to the said Mrityunjoy Barik being an eighty year-old

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gentleman having suffered a cerebral thrombosis and being admitted to the Nandakumar Hospital from August 31, 2004 till September 8, 2004, when he was referred to Tamluk Hospital for better treatment. It has also been averred in the plaint that the defendant no. 1, in collusion with others, took the unconscious alleged donor Mrityunjoy Barik to Khanchi Sub Registry Office from Nandakumar Hospital and got the said so-called deed of gift registered. In fact, it has also been specifically averred in the plaint that Mrityunjoy Barik was not in a position on September 4, 2004, the purported date of the gift deed, to execute the said deed.

Thus, we find that the foundational pleadings, which provided the basis to the evidence of the PW1 to that effect at the juncture when the gift deed was executed, the alleged donor Mrityunjoy was not and could not be in a position to execute the gift deed, are amply present in the plaint.

The learned Appellate Judge, by application of the parameter of preponderance of probabilities, has arrived at a conclusion which is one of the plausible views in the facts and circumstances of the said case.

As such, we do not find any reason to substitute our views for that of the First Appellate Court, particularly since there is no legal or factual error or

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perversity in the judgment of the first Appellate Court.

Thus, we do not find any substantial question of law involved in the present appeal.

Accordingly, the appeal is dismissed under Order XLI Rule 11 of the Code of Civil Procedure. The connected application, being CAN 1 of 2013 (Old CAN 9760 of 2013), also stands dismissed accordingly.

There will be no order as to costs.

(Uday Kumar, J.) (Sabyasachi Bhattacharyya, J.)

Procedural history

How this case reached the court

AI extract

Order under challenge
Judgment of the first Appellate Court partially modifying and partially reversing the Trial Judge's decree, holding that each plaintiff has a 1/6th share in the suit property and that the deed of gift was void, inoperative and not binding on the plaintiffs.¶10
First Appellate Court (learned Appellate Judge)
Prior proceeding
Suit instituted for declaration that the gift deed executed by the admitted owner late Mrityunjoy Barik in favour of defendant no. 1/appellant no. 1 was void, inoperative and not binding on the plaintiffs, along with declaration of the plaintiffs' title and consequential permanent injunction; the Second Appeal was preferred by one of the defendants and the proforma defendants.¶8
Prior proceeding
At trial, the learned Trial Judge declared the half share of the plaintiffs in the suit property but granted no decree as prayed for in respect of the gift deed.¶9
Prior proceeding
Sequence of events established by plaintiff no. 1 as PW1: the alleged donor Mrityunjoy Barik was hospitalized at Nandakumar Hospital between August 31, 2004 and September 8, 2004 due to cerebral infraction, advised to be taken to Tamluk Hospital, and discharged on September 8, 2004.¶13
Prior proceeding
The donor died in the wee hours of September 9, 2004, the day after discharge; the gift deed-in-question was allegedly executed on September 4, 2004, in the thick of his illness while he was hospitalized.¶14
Prior proceeding
Averments in the plaint: the donor was an eighty year-old gentleman who suffered cerebral thrombosis and was admitted to Nandakumar Hospital from August 31, 2004 till September 8, 2004, when he was referred to Tamluk Hospital; defendant no. 1, in collusion with others, took the unconscious alleged donor from Nandakumar Hospital to Khanchi Sub Registry Office and got the deed registered; and the donor was specifically averred not to have been in a position to execute the deed on September 4, 2004.¶19