Dismissed¶¶25

Ashok Sarkar v. Pasupati Sarkar Since Deceased Rep by Heirs

Calcutta HC13 May 2025SAT/156/2017

Case brief

AI extract

What is this about?

Gift deed challenged for misrepresentation; donor allegedly misled to believe she executed a power of attorney; completion of gift under Section 122 Transfer of Property Act 1882 by acting upon the deed; Exhibit A LR Records-of-Rights and Exhibit B-series rent receipts as proof of assertion of title; concurrent findings of fact; limitation decided against plaintiff for unexplained 14-year lapse from execution; burden on executant-donor to explain delay; no substantial question of law in second appeal; dismissal under Order XLI Rule 11 CPC; companion application consequentially dismissed; no costs.

What did the court decide?

No relief granted: SAT 156 of 2017 dismissed under Order XLI Rule 11 CPC; CAN 1 of 2018 (Old No: CAN 1772 of 2018) consequentially dismissed; no order as to costs. ¶¶25

Ashok Sarkar Vs Pasupati Sarkar Since Deceased Rep by Heirs — Calcutta HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

No relief granted: SAT 156 of 2017 dismissed under Order XLI Rule 11 CPC; CAN 1 of 2018 (Old No: CAN 1772 of 2018) consequentially dismissed; no order as to costs.

¶¶25

Issue for consideration

Whether the gift deed executed by the original plaintiff/donor was ever acted upon so as to satisfy the requirements of Section 122 of the Transfer of Property Act, 1882, notwithstanding the allegation of misrepresentation +2 more

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Court's answer

For all practical purposes the courts below arrived at a concurrent finding of fact that the gift deed-in-question was acted upon, thus complying with the requirements of Section 122 of the Transfer of Property Act.

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Ratio / Principle

The Trial Judge erred in deciding the question of limitation by treating the plaint's cause-title averments as gospel truth without considering the evidence, whereas the First Appellate Court examined the evidence, including P.W.1's oral testimony, at length.

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Key takeaways

Since the original plaintiff was herself the executant of the deed and her execution was not denied, the burden lay on her to explain why the suit was not filed within the limitation period from execution; the unexplained lapse of 14 years led this Court to decline to disturb the First Appellate Judge's factual findings on limitation, deciding the issue of limitation against the plaintiff.ratio¶¶19
The First Appellate Court's stray sentence observing that the original plaintiff lived in the suit property till her last breath finds no support anywhere else in that court's judgment and cannot justify a contrary conclusion on whether the gift deed was acted upon.ratio¶¶23

Detailed headnote1 paragraphs

Second appeal SAT 156 of 2017 (with CAN 1 of 2018) by Ashok Sarkar against the heirs of Pasupati Sarkar (original plaintiff/donor, deceased), whose suit sought declaration that a gift deed, allegedly executed on the strength of a misrepresentation (the donor was led to believe she was registering a power of attorney), was not binding on her. Both courts below returned concurrent findings of fact that the gift deed was acted upon — the Trial Judge relying on Exhibit 'A' (LR Records-of-Rights) and Exhibit 'B'-series rent receipts showing the defendant asserted title under the deed — thereby satisfying Section 122 of the Transfer of Property Act, 1882; the appellate court's stray remark that the donor lived in the suit property till her death was unsupported by anything else in its judgment. On limitation, the First Appellate Court, unlike the Trial Judge (who took the plaint's cause-title averments as gospel truth), considered P.W.1's evidence and found the 14-year lapse from execution to suit unexplained; as the donor was herself the undisputed executant, the delay stood against her and the factual findings were left untouched. Finding no substantial question of law, this Court dismissed the appeal under Order XLI Rule 11 of the Code of Civil Procedure, consequentially dismissed the accompanying application, and ordered no costs.

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D/L30 13.05.2025 Rohit ct.no.16

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SAT 156 of 2017 With

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CAN 1 of 2018 (Old No:CAN 1772 of 2018)

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Ashok Sarkar Versus

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Pasupati Sarkar since deceased rep by heirs

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Mr. SaumyenDatta Mr. Subrata Bhattacharyya

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…for the Appellant

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The present second appeal has been filed against a judgment of affirmance by the plaintiff in a suit, inter alia for declaration that a gift deed allegedly executed by the original plaintiff was not binding on her due to misrepresentation and for consequential reliefs.

¶10

Learned Counsel for the appellant argues that both the courts below failed to take into account the oral evidence of P.W. 1 where it was stated that the alleged donor/ original plaintiff resided in the suit premises during her lifetime.

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It is submitted that in view of such evidence, it is crystal clear that the gift deed was never acted upon in terms of Section 122 of the Transfer of Property Act, 1882.

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Learned Counsel further argues that the learned First Appellate Judge, despite observing that undeniably the original plaintiff had lived in the suit property till her last breath, affirmed the findings of the learned Trial Judge dismissing the challenge to the gift deed.

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It is next contended by learned counsel for the appellants that the First Appellate Court erred in law in holding the issue of limitation against the plaintiff, inasmuch as the knowledge of misrepresentation in executing the gift deed was discovered first in the year 1991, within the limitation period from which the suit was filed. It is contended that the original plaintiff/donor was given the impression that she was executing and having registered a power of attorney, and not a gift deed.

¶15

However, we are unable to agree with the submissions of learned counsel for the appellant.

¶16

Insofar as the question of limitation is concerned, we find from the judgment of the court of first instance that the learned Judge proceeded to hold the issue of limitation in favour of the plaintiff by taking the averments of cause title in the plaint as gospel truth.

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¶18

The evidence in that regardwas not considered at all by the learned trial Judge, which the first appellate court did at length. The learned first appellant Judge, while considering P.W.1‟s oral evidence as well as the other averments made in the deposition, came to a concrete factual finding that the lapse of 14 years from execution of the deed and the filing of the suit was never explained.

¶19

Also, since the original plaintiff was herself the executant of the deed, which execution was not denied, it was for the plaintiff to explain as to what prevented her from filing the suit within the limitation period from execution of the same. Having failed to do so, we are not inclined to tinker with the factual findings of the learned First Appellate Judge on such count.

¶20

Insofar as the gift deed being acted upon is concerned, the learned Trial Judge took into consideration the evidence on record, including Exhibit „A‟, being the LR Records-of-Rights, and Exhibit „B‟-series, being rent receipts, produced by the defendant to show that the defendant had asserted the defendant‟s title in respect of the suit property after the execution of the gift deed, on the strength of the said deed. Such factual finding has

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been corroborated by the learned first appellate court.

¶23

The learned first appellate court, in a stray sentence, observed that “Undeniably the original plaintiff has lived in the suit property till her last breath”. However, there is nothing in the first appellate court‟s judgment, either before or after the said stray comment, to justify the same.

¶24

Hence, we find that for all practical purposes the courts below arrived at a concurrent finding of fact to the effect that the gift deed-in-question was acted upon, thus complying with the requirements of Section 122 of the Transfer of Property Act.

¶25

In such view of the matter, we find that no substantial question of law is involved in the appeal. Accordingly, SAT 156 of 2017 is dismissed under Order XLI Rule 11 of the Code of Civil Procedure.

¶26

CAN 1 of 2018 (Old No: CAN 1772 of 2018) is consequentially dismissed as well.

¶27

No order as to costs.

¶28

(Sabyasachi Bhattacharyya, J.)

¶29

(Uday Kumar, J.)

Ashok Sarkar v. Pasupati Sarkar Since Deceased Rep by Heirs

Case brief

What is this about?

What did the court decide?

Ashok Sarkar v. Pasupati Sarkar Since Deceased Rep by Heirs

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

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