Dismissed¶32

Gautam Das v. Nirupam Das

Calcutta HC13 May 2025SAT/76/2022

Case brief

AI extract

What is this about?

SAT 76 of 2022, Gautam Das v. Nirupam Das: second appeal against First Appellate Court's reversal of decree cancelling deed of gift dated April 30, 2002; cancellation of deed of gift; misrepresentation; burden of proof and initial onus on plaintiff; pleadings particulars under Order VI Rule 4 CPC; attesting witness D.W. 2; due execution of deed; disbelief of witness evidence held invalid; substitution of plaintiff after donor's death; 16 annas share declaration refused; remand sought under Order XLI Rule 23 CPC; dismissal under Order XLI Rule 11 CPC for want of substantial question of law; no order as to costs.

What did the court decide?

The first appellate court undertook an elaborate exercise of adverting to the entire evidence on record, unlike the learned Trial Judge. ¶18

Gautam Das Vs Nirupam Das — Calcutta HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the learned First Appellate Court was justified in reversing the trial court's decree, and whether the present second appeal involves any (substantial) question of law, including the appellant's prayer for remand under Order XLI Rule 23 CPC. +2 more

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Court's answer

The first appellate court undertook an elaborate exercise of adverting to the entire evidence on record, unlike the learned Trial Judge.

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Ratio / Principle

The learned First Appellate Court was perfectly justified in reversing the judgment of the court of first instance.

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Key takeaways

No question of law, let alone any substantial question of law, is involved in the present second appeal; accordingly the appeal is dismissed under Order XLI Rule 11 of the Code of Civil Procedure rather than remanded.ratio¶31
In a suit for cancellation of a deed on the ground of misrepresentation, the burden and initial onus are on the plaintiff, who must plead particulars as contemplated under Order VI Rule 4 CPC and prove his own case; the learned Trial Judge reversed the burden of proof against established law.ratio¶25
The trial court's rejection of the otherwise sound evidence of D.W. 2 (attesting witness who proved due execution) on the ground that he resided half a kilometer away and was not a relative or neighbour of the donor was a third case made out by the Trial Judge and an invalid ground of disbelief.

Detailed headnote1 paragraphs

Second appeal by the substituted plaintiff against the First Appellate Court's judgment reversing the trial court's decree cancelling a deed of gift dated April 30, 2002 allegedly procured by misrepresentation. Held: (i) the burden and initial onus in a suit for cancellation of a deed on the ground of misrepresentation lie on the plaintiff, who must plead particulars under Order VI Rule 4 CPC and prove his own case; the trial judge reversed the burden of proof contrary to established law; (ii) the trial court's disbelief of D.W. 2, an attesting witness who proved due execution, on the ground that he resided half a kilometer away and was neither relative nor neighbour of the donor, was an invalid ground; (iii) the First Appellate Court adverted to the entire evidence on record and was perfectly justified in reversing the court of first instance; (iv) no question of law, let alone any substantial question of law, arises in the appeal. Appeal dismissed under Order XLI Rule 11 CPC; no order as to costs.

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D/L36 13.05.2025 Rohit ct.no.16

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SAT 76 of 2022

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Gautam Das Versus

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Nirupam Das

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Mr. Suprabhat Bhattacharyya Mr. Basudev Bag

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…for the Appellant

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The present second appeal has been preferred by the substituted plaintiff in a suit filed by the original plaintiff (father of the parties) for cancellation of a deed of gift executed by the father, on the ground of misrepresentation, for declaration of the original plaintiff/father’s 16 annas share in the suit property and for consequential reliefs.

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During pendency of the suit, the original plaintiff/father met his demise and his other son apart from the defendant was impleaded/substituted in his place as the plaintiff. In such view of the matter, the learned Trial Judge refused to pass the decree of declaration of 16 annas share since, by then, the original plaintiff/absolute owner had died and his sons, who were co-sharers in the property on his

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demise,became the parties to the suit, none of them having 16 annas share in any event.

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However, the learned Trial Judge granted the decree of cancellation of the deed of gift as claimed by the plaintiff/appellant.

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Being aggrieved, an appeal was preferred. The learned First Appellate Court allowed the appeal, thereby reversing the trial court’s decision and declaring that the impugned deed of gift dated April 30, 2002 was valid and operative in law.

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Learned counsel appearing for the substituted plaintiff/appellant submits that the learned First Appellate Court did not take into consideration the evidence on record and/or the findings of the trial court while reversing the same. It is contended that since two different views were taken by both the courts below, and the appeal has been preferred against a judgment of reversal, the first appellate court’s judgment ought to be tested on grounds of law.

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Learned Counsel for the appellant further submits that this is a fit case where the matter should be remanded under Order XLI Rule 23 of the Code of Civil Procedure.

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However, upon a perusal of the judgment of the first appellate Court, we find that the first appellate

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court undertook an elaborate exercise of adverting to the entire evidence on record, unlike the learned Trial Judge.

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The learned First Appellate Judge, inter alia, took into consideration the plaint allegation that after the gift deed was executed and registered, the registration slip in that regard was handed over to the donor/original plaintiff by the donee,

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defendant/respondent.

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The learned First Appellate Judge observed that it goes beyond logic that a person who will commit fraud and misrepresentation and thereby procure a deed of gift from another will again hand over the registration slip to that person or executor of the document and thereby take the risk of exposing himself of his misdeeds.

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That apart, the learned Appellate Judge took into consideration the statements of D.W. 2 in cross-examination as well as other evidence on record and, by a well-reasoned judgment, reversed the findings of the trial court.

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On the contrary, we find certain observations of the trial court, in support of the partial decree granted in favour of the plaintiff, which border on the absurd.

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It is well-settled that the burden and the initial onus is on the plaintiff in a suit for cancellation of a deed on the ground of misrepresentation, not only to plead the particulars of his case as contemplated under Order VI Rule 4 of the Code of Civil Procedure but also to prove his own case. The learned trial Judge reversed the burden of proof against established law by observing that although the defendant appeared in the suit when the original plaintiff was alive, the defendant, despite having sufficient opportunity to ask the original plaintiff for adducing his evidence to the effect that the impugned deed was executed voluntarily, did not do so.

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Apart from such reversal of the burden of proof contrary to law, the learned Trial Judge disbelieved the impugned deed on a peculiar ground. D.W. 2, one of the attesting witnesses in the impugned deed, adduced evidence and proved the due execution of the deed. However, his evidence was disbelieved by the learned trial Judge on the ground that he resided at a distance of half a kilometer away from the residence of the original plaintiff and was not a relative or a neighbour of the donor. It was also held by the trial court that the defendant had miserably failed to prove that the said attesting witness had

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good relation with D.W. 2 and why the donor left behind his friends, neighbours and relative by choosing D.W. 2 to be an attesting witness.

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The said case was a third case made out by the learned Trial Judge and was an invalid ground of disbelieving the otherwise sound evidence of D.W. 2. Thus, even the conclusion of the learned Appellate Judge, apart from the rationale of the learned Appellate Judge, are sound and in accordance with law.

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