Kalyan Kumar Nag vs Pranati Bose and Others

S. N. Sanyal, J.—These appeals at the instance of the appellant Kaiyen Kumar Nag are directed against the judgment and decree of the learned Additional District Judge, 8th Court, Alipore dated June 26, 1978 in Title Appeal Nos. 1190 and 1191 of 1977. The appellants father Dr. Arun Chandra Nag instituted. Title Suit No. 15 of 1972 against his son Kalyan Kumar Nag for declaration that he was the sole and absolute owner of the disputed property In this suit Dr Nag also prayed for declaration that the Registered Deed of Gilt dated July 4 1959 executed by him In favour of his son Kalyan Kumar Nag was a benami document and otherwise had in law. In this suit the second wife and the other children (both by the first wife and the second wife) were in pleaded as proforma defendants. The case of the plaintiff Dr Arun Chandra Nag is that he was a medical practitioner at Bagerhat in the district of Khulna now in Bangladesh and he had an extensive practice. On June 17, 1950 he purchased the suit land from the Karunsmoyee Estate for a consideration of Rs. 5200/- and obtained possession thereof. He intended to construct a building on the said land but as there were certian difficulties in this behalf, as he was a resident of Bangladesh, he executed and registered a benami deed of gift In favour of his eldest son Kalyan Kumar Nag (defendant no 1) on July 4,1959 in respect of the purchased land. He also assigned several Life Insurance Polices to the extent of about Rs. 13000/- to hit eldest son the defendant no 1 Dr Nag further alleged that ho remitted money from Begerhat to Kaiyan from time to time for the construction of the house and with the money given by him to the defendant no 1 the house was constructed on the disputed land some time in 1960. The plaintiff Dr Nag was in exclusive possession of the same by letting out the ground floor to the tenants and possessing the first floor through the defendant no 1 and the proforma defendants. Although the deed of gift stood In the name of the defendant no. 1 Kalyan, the latter had no title to the suit property. Subsequently, the plaintiff Dr Nag along with other members of his family came down to India on July 24 1971 with the intention of permanently residing in India and since then he has been living in the suit property with his family members. The defendant no. 1 and his wife threatened to dispossess the plaintiff and the other members of the fiamily, On October 17, 1971 the plaintiff Dr Nag called upon the defendant no. 1 Kalyan to execute and register a ''Nadabipatra'' in his favour but the defendant no 1 Kaiyan refused to comply with the same and the plaintiff Dr Nag was obliged to file the suit

2 The suit was contested by the present appellant who was the defendant no. 1 in the said suit. According to him, he obtained title to the suit property by Virtue of the deed of gift executed in his favour by his father His father thereafter made several gifts in cash in his favour and also by assigning Life Insurance Policies. The defendant no 1 constructed the building on the suit land with the said money as well as with his own income and loan received from others The defendant no 1 was the absolute owner of the suit property. He was in possession of the same since the time of gift as ownar of the same.

The appellant Kalyan Kumar Nay instituted Title Suit no. 60 of 1975 on March 21, 19973 against his tatnar Or Arun Chandra Nag describing him as a licensee occupying tne first floor of the suit premises under (sic) and he prayed for his eviction from the suit property on revocation of the licence.

Dr. Arun Chandra Nag instituted Title Suit no. 61 of 1975 on April 9, 1973 for eviction of one Paritosh Ganguly who was in occupation of the ground floor in the disputed house as a tenant. Title Suits 60 and 61 of 1975 were originally filed in the 1st Court of the Munsif at Sealdah but were transferred to the 6th Court of the Subordinate Judge at Alipore for analogous trial.

The learned Subordinate Judge by his judgment dated September 15, 1977 came to the conclusion that the plaintiff Dr. Arun Chandra Nag had failed to prove that the transaction contemplated by the deed of gift was merely to create a benami document in the name of the defendant no. 1 Kalyan Kumar Nag without the intention of parting with the ownership of the property. The learned Subordinae Judge further held the deed of gift to be invalid on the ground that there was no attestation as required by the law. The learned Subordinate Judge thus held that the disputed deed of gift did not confer any title on Kalyan Kumar Nag but the defendant no. 1 Kalyan Kumar Nag by virtue of his continuous and uninterrupted possession over the suit property for a period of more than 12 years asserting his ownership acquired title thereto by prescription. The learned Subordinate Judge accordingly dis missed the Title Suit no. 15 of 1972 which was brought by Dr. Arun Chandra Nag. The learned Subordinate Judge decreed Title Suit no. 60 of 1975 (instituted by the appellant) and granted a decree for eviction of Dr. Arun Chandra Nag from the suit property. Title Suit no. 61 of 1975 was dismissed.

Dr. Arun Chandra Nag challenged the judgment and decree of the learned Subordinate Judge in three appeals, namely, Title Appeal nos. 1190,1191 and 1192 of 1977. The learned Additional District Judge by his judgment dated June 26, 1978 allowed Title Appeal nos. 1190 and 1191 of 1977. The learned lower appellate court granted a decree declaring that the plaintiff (Dr. Arun Chandra Nag) of Title Suit no. 15 of 1972 was the sole owner of the suit property described in the schedule to the plaint of the said suit and the principal defendant no. 1 Kalyan Kumar Nag was merely his benamdar. It was further declared that the registered deed of gift dated July 4, 1959 executed by Dr. Nag in the name of his son Kalyan was a benami document and it was otherwise bad in law and it did not confer any right, title and interest on the defendant no. 1 in respect of the suit property. The learned Additional District Judge however dismissed Title Appeal no. 1192 of 1977. The learned Appellate Court reversed the finding of the learned trial court and came to the conclusion that the defendant no. 1 (namely, the appellant before us) did not acquire any title to the suit property by adverse possession. The learned Appellate Court further held that the entire cost of construction of the disputed property was borne by Dr. Nag. The deed of gift executed by Dr. Nag was. a benami document. The learned Appellate Court however agreed with the learned trial court that the deed of gift was not a valid document as it was not attested by two witnesses as required by law.

In these appeals the appellant has challenged the said decision of the learned Additional District Judge.

Mr. B.C. Dutt, learned Advocate for the appellant, has contended that the execution of the deed of gift was admitted by the donor. Mr. Dutt has argued that the learned courts below were wrong in holding that the deed of gift has not been properly attested. The contention of Mr. Dutt is that the donee is not a party to the deed of gift and as such he is entitled to be an attesting witness. In this connection, Mr. Dutta has referred to the case of Kumar Harish Chandra Singh Deo and Anr. v. Bansidhar Mohanty and On (A.I.R. 1965 SC 1938). The next contention of Mr. Dutt is that the execution was admitted by the executant before the registering officer and in view of the principles of law laid down in Radha Mohun Dutt Vs. Nripendra Nath Nandy and Others, the endorsement of the registering officer would mean that the document was properly attested. Mr. Dutt has contended that the learned courts below were thus wrong in holding that the deed of gift was void for want of proper attestation. It has been argued by Mr. Dutt that if the deed of (sic) is (sic) to be void for want or proper attestation, it cannot be declared to be a benami document as a benami document means a document otherwise valid in law. Mr. Dutt has contenued that the learned appellate court has not taken into consideration all the pieces of evidence and its finding is not a proper finding. It has been argued that the property vested in the appellant and he was also in possession of the same for more than 12 years prior to the institution of the suit asserting his title as owner. The learned appellate court, according to Mr. Dutt, was wrong in reversing the finding of the trial court as regards the acquisition of title by the appellant by adverse possession.

Mr. S.P. Sen, learned Advocate for the respondents, has contended that the deed of gift should be considered in the background in which it was executed by Dr. Nag. Dr. Nag was living in the then East Pakistan which subsequently became Bangladesh. He purchased the disputed piece of land with his own money and as there was difficulty on his part to construct a house thereon in view of his residence in East Pakistan, he entrusted his eldest son (the present appellant) to construct a house on his behalf and with that end in view he executed a deed of gift and advanced money from time to time. Mr. Sen has argued that it was never intended by Dr. Nag that the benifit would accrue to the appellant only. The ''Jama Kharach Book'' was maintained by the appellant, his wife and the step mother. The entire cost of construction was provided by Dr. Nag. It has been further argued that the appellant was merely looking after the property on behalf of his father and the was never in adverse possession of the same.

The learned courts below have held the deed of gift to be invalid for want or proper attestation, the trial court has round that there was only one attesting witness whereas the law requires that the deed of gift shall, be attested by at least two witness. According to the learned trial court, he deed of gift (Exhibit A) was attested by only one witness, namely, P.W. 4 Ajoy Kumar Bose, son-in-law of Dr. Nag, Mr Dutt, the learned Advocate for the appellant, has argued that the Sub-Registrar, that is, P.W. 8, should be considered to be an attesting witness. In support of his contention, Mr. Dutt has referred to the case of Radha Mohun Dutt Vs. Nripendra Nath Nandy and Others, . In this decision, it was held that where the mortgagor acknowledges execution of the mortgage before the Sub-Registrar, and the endorsement of the Sub-Registrar shows that the execution was admitted by the mortgagor, then the document should be held to be properly attested In this connection, we may refer to the case of M. L. Abdul Jabbar Sahib Vs. M. V. Venkata Sastri and Sons and Others, . It has been held in this decision that the essential conditions of a valid attestation u/s 3 of the Transfar of Property Act are : (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgement of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence or me executant, it is essentair that the witness should have put his signature ammo attestandi, that is, for the purpose or attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person purs his signature on the document for some other purpose, e. g., to certify that he is a scribe or an identifier or a. registering officer, he is not an attesting witness, it has Deen further held that prima facie the registering officer purs his signature on the document in discharge of his statutory duty u/s 59 of Registration Act and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature. In this case, the evidence did not show that the registering officer put his signature on the document with the intention of attesting it. It was not also proved that he signed the document in the presence of the executant. It was held that in those circumstances he could not be regarded as an attesting witness. In the instant case, D.W. 8 Gobinda Lal Singha Roy was the Registering Officer. His evidence is that Dr. Nag admitted the execution He has no independent recollection about the transaction. D.W. 8 has stated that he was not a witness to the document. There is no evidence to show that D.W. 8 the registering officer put his signature in presence of the executant. Having regard to the principles of law laid down in M. L. Abdul Jabbar Sahib Vs. M. V. Venkata Sastri and Sons and Others, the registering officer cannot be considered to be an attesting witness.

Mr. Dutt has argued that the donee Kalyan Kumar Nag signed the deed of gift (Ext. A). The contention of Mr. Dutt is that as the donee is not a party to a deed of gift, he may be an attesting witness in view of the principles of law laid down in Kumar Harish Chandra Singh Das and Others Vs. Bansidhar Mohanty and Others, . In this case, A executed a mortgate of his immovable property in favour of B though the money was lent by C. The mortgage deed was attested by two witnesses one of whom was C, that is, the lender himself. It has been that where a person is not a party to the deed, there is no prohibition in law to the proof of the execution of the document by that person. A distinction has to be drawn in between a person who is a party to a deed and a person, though not a party to the deed, is a party to the transaction. According to Mr. Dutt, D. W 7 Kalyan Kumar Nag deposed about the. execution of the deed of gift (Ext. A) by his father. As the defendant no. 1 is not a party to the deed, he should be considered to be an attesting witness In his evidence, the defendant no I CD. W. 7) stated that he accepted the gift in respect of the suit land in writing. An endorsement in respect thereof was embodied in the deed of gift itself. He has further stated that the sub-Registrar enquired of him when he affixed his signature thereon whether he has accepted the gift and his reply to. the same was in the affirmative. According to Section 123 of the Transfer of Property Act. for the purpose of making a gift of immovable property a transfer must be effected by a registered instrument signed by or on be half of the Honor and attested by at least two witnesses The deed of giff must be accepted during the life time of the donor and while he is still capable of giving. In the instant case, it appears that the defendant no. 1 (D. W. 7) signed as a token of his acceptance and not as an attesting witness. If there is acceptance of the gift after execution of the deed though registration may be postponed to a later date, the gift. would remain irrevocable, but if there is no acceptance at all, registration will not make the gift irrevocable. In the circumstances, it appears that the acceptance was effected by the donee in the deed of gift and as such he became a party to the document. The evidence of the defendant no 1 cannot thus be used to show that he was an attesting witness. The finding arrived at by the learned courts be low that the deed of gift was invalid as it was not attested by at least two witnesses cannot thus be assailed.

It has been argued by Mr Dutt that the learned court of appeal below having found the deed of gift in valid under the law. was wrong in declaring the same to be a benami document. Mr. Dutt has argued that a benami document pre-supposes that the document itself is valid but the apparent state is not the real state. According to Mr. Dutt, if the deed of gift be considered to be bad in law, the possession of the appellant under the invalid deed of gift was adverse to the donor. Mr. Sen has argued that the deed of gift has to be taken into consideration in the background in which it was executed. According to Mr. San, Dr. Nag purchased the disputed land with his own money but as he was a resident of the then. East Pakistan, it was difficult for him to construct a house at Calcutta. Mr. Sen argues that the evidence on record establishes that the real intention of Dr. Nag was not to benefit the appellant only but he wanted to have a property of his own at Calcutta and with that end in view he executed a deed of gift in favour of his eldest son, namely, the appellant, and assigned Life Insurance Policies and remitted money to the appellant for. the construction of the house.

The learned court of appeal below on a consideration of the evidence on record has held that the entire cost of construction of the disputed house was borne by Dr. Nag and in coming to the conclusion, the learned lower appellate court has taken into consideration the oral and documentary evidence on record. Not only Dr Nag assigned the Life Insurance Policies but he also provided money to the appellant for the construction of the house. The letter (Ext. 4) written by the appellant to the income tax Officer on December 20, 1963 shows the amount spent for the construction of the house. The learned court of appeal below has held that the account shows that the entire amount for the construction of the house was borne by the father barring two items, namely, Rs. 3130|- against the appellant''s mothers gold ornaments and Rs. 480|- collected by the appellant from his G.P. Fund 1961-62. Not only Dr. Nag provided money from his own account but he also paid a part of the sale proceeds obtained by selling a land at Behala which stood in the name of his second wife, that is, the step-mother of the appellant. Having regard to the background in which the deed of gift was executed and money provided by Dr. Nag to the appellant for the construction of the house, the observation of the learned Judge of the court of appeal below was that it was not at all likely that any father would deprive his other children for the sake of one of his sons. Mr. Dutt has argued that in view of Section 38(5) of the Insurance Act, the appellant after the assignment by his father of the Life Insurance Policies, became the owner of the amount received by him under those policies The amount thus became the property of the appellant. This question, however. is not at (sic) important In view of the fact that the intention of Dr. Nag to assign the policy to the appellant was for the construction of the house Having regard to the circumstances in which the deed of gift was executed and the advancement of funds by different means to the appellant was made, if it Is found that the intention of Dr Nag was not to benefit the appellant only, the assignment of the Insurance Policies cannot be placed on a different footing from the remittance of money by other means by Dr Nag In the circumstances the deed of gift, as it is Invalid under the law. may not be termed to be a benami document but the deed of gift along with the other evidence on record will be indicative about the nature of possession of the disputed property by the appellant. In the circumstances, the finding of the lower appellate court that Dr Nag wanted to construct a house on the suit land out of the entire money ho could remit or bring from Bangladesh and the deed of gift was executed by him to avoid complication cannot be called to be an Improper finding.

This brings us to the main conten to in urged by Mr Dutt. Mr. Dutt has argued that the appellant came into possession of the suit property since the deed of gift dated July 4, 1959 and as the gift was invalid, the appellant was thus in adverse possession for more than 12 years prior to the institution of the sait by his father Dr. Nag. the contention or Mr. Dutt is that in view of Section 27 of the limitation Act, 1963 the right of Dr. Nag to institute the suit for possession on the strength of his title was lost and as such his right to the property was extinguished'' In support of his contention Mr. Dutt has referred to the case of Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, . He has also referred to the cases reported in 39 CWN 352 (Maharaja Srish Chandra Nandi & Ors. v, Baijnath Jugal Kishore) and 82 CWN 92 (Usha Rice Mill Co. Ltd. v. United Bank of India).

In answer to this contention, Mr. Sen has argued that the claim of the appellant that he was In adverse possession for 12 years has been negatived by the court of appeal below as the evidence did not establish such a contention. The learned trial court held that the appellant by virtue of his continuous, uninterrupted and notorious possession over the property for 12 years openly asserting his ownership thereover acquired possessory title thereto by prescription. The learned trial court has further held that the owner whose property was adversely possessed suffered his right to be barred by the law of prescription and as a result his title was extinguished in favour of the party in possession. The learned court of appeal below, however, reversed the said finding of the learned trial court and held that the defendant no. 1 (the appellant before us) did not alone live in the suit house but it was also occupied by the proforma defendants and the plaintiff also came to reside there on some occasions The learned lower appellate court observed that the fact that the proforma defendants lived in the suit house goes against the contention of the defendant no. 1 that he was the absolute owner of the suit property The learned lower appellate court came to the conclusion that It could not be held that the defendant no. 1 acquired title to the suit property by adverse possession. In Nair Service Society''s case (supra) the Supreme Court held that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights to owership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is forever extinguished, and the possessory owner acquires in absolute title. In Maharaja Srish Chandra Nandi''s case (39 CWN 352) the Privy Council laid down the essential elements of adverse possession. In 82 CWN 92 the principles of law laid down in AIR 1965 S. C. 1165 were followed.

According to Section 87 of the Limitation Act, at the determination of the period limited under the said Act to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. The relevant provisions are Articles 64 and 65 of the Limitation Act. Article 64 deals with suits based on possessory title. According to Article 64, a suit for possession of immovable property based on a previous possession and not on title, when the plaintiff while In possession of the property has been dispossessed is to be instituted within 12 years from the date of dispossession. Article 65 of the Limitation Act deals with a suit for possession of immovable property or any interest therein based en title. In a case governed by Article 65 the suit has to be instituted within 12 years when the possession of the defendant becomes adverse to the plaintiff. in the instant case, the suit instituted by Dr Nag was based on his title and as such the relevant Article would be Article 65 of the Limitation Act. Having regard to the materials on record, the claim of the appellant that he was in adverse possession for the requisite period has not been accepted by the learned court of appeal below. Mr. Sen has referred to the account books of the joint family (and the learned Appellate Court has also placed reliance upon the same) in support of his contention that the rent realised from the tenants of the disputed house was credited to the joint family account and was spent for joint family and the book was maintained by the appellant for some time and thereafter by his stepmother and his wife. The finding of the learned Judge of the court of appeal below also shows that not only the appellant but some of the proforma defendants also used to reside in the house and Dr Nag also resided there tor some time. In the circumstances, the contention of Mr Dutt that the right of Dr Nag to the property was extinguished cannot be upheld. The contention of the appellant that he was in adverse possession for 12 years has not been established. In the result, both the appeals fail, Subject to the observation made In the judgment the appeals are dismissed. In the circumstances of the casts, there will be no order for costs in respect of these appeals. Since the appeals are disposed of the application and the Rule become Infructuous and ere disposed of. The Receiver may now be discharged upon furnishing accounts to the tril Court below.

Anil K. Sen, J.

I agree.