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TMI Blog2025 (3) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... iolation of Clause II (6) as an issue for the parties to address. Clause II (6) provides that the lessees shall not assign or transfer in any way or mortgage the subject land without the previous consent in writing of the Chairman of the Board of Trustees of the CIT. However, we do not find any clause within the four corners of the lease deed which invalidates such a transfer, even if made without such written prior permission. The maximum consequence which might have visited the lessees in the event of breach of any of the covenants of the lease deed, including Clause II (6), would be non-renewal of the lease after the expiry of its normal tenure of 99 years - the violation of Clause II (6) is not otherwise fatal to the validity of such transfer, made without any prior written consent of the CIT. In the gift deed itself, sufficient explanation for transfer of the property in favour of the donee in exclusion of the donor's children was given. The donor stated that she had great love and affection for the done, who happened to be her daughter-in-law and the donee maintained great regards and esteem in her behaviour and dealings with the donor. It was further stated that the sons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 61. The said Clause prohibited the lessees from assigning or transferring in any way or from mortgaging the subject-property without the previous consent in writing of the Chairman of the Board of Trustees of the CIT. 4. Learned counsel for the appellants argues that the suit was barred by limitation. Whereas the original plaintiff executed the deed of gift on May 22, 1985, the suit was filed in the month of August, 1992, that is after 7 years. Since the Trial Court has not held that the deed was vitiated by fraud, the limitation of 3 years would commence from the date of execution of the deed, to which the original plaintiff Rama Devi was a party. 5. Learned counsel for the appellant next argues that the original plaintiff, in answer to question no.89 put to her in her cross-examination, stated that the disputed deed was not forged and false. Furthermore, the plaintiff Rama Devi, as PW2, in her cross-examination, admitted having signed papers in the Registration Office and put her LTI (Left Thumb Impression), although she feigned ignorance regarding whether the LTI was put on the disputed gift deed, which was tendered to her in her cross-examination, was vague about the identity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to assign the whole or part of its interest in the let-out property in favour of third parties. 12. Learned counsel next argues that no issue was framed in the suit as to breach of Clause II (6) and as such, the decision thereon was perverse and without jurisdiction. 13. It is further argued by the appellant that Durga, the younger son of the original plaintiff, deposed as the first witness of the plaintiff (PW1) before the plaintiff herself, without obtaining any leave under Order XVIII Rule 3-A of the Code of Civil Procedure, which vitiates such evidence of Durga. Subsequently, leave was granted vide order no.87 dated August 10, 2004, which is challenged in the present appeal on the ground that such leave could not be obtained post facto. Learned counsel place reliance on an Orissa High Court decision in Jagannath Nayak v. Laxminarayan Thakur and others, reported at AIR 1978 Ori 1, in support of such contention. It is argued that although a contrary view was expressed by the same High Court in the judgment of Maguni Dei v. Gouranga Sahu and others, reported at AIR 1978 Ori 228, the latter judgment does not lay down the correct proposition of law. 14. Learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal plaintiff Rama having herself executed the disputed deed of gift, she pleaded ignorance of the character of the same at the relevant point of time and contended that only upon receiving the subsequent letters immediately prior to the filing of the suit, she learnt that the document was purported to be a deed of gift, whereas allegedly she intended to execute a power of a attorney in favour of Ashish, the husband of the original defendant no.1 Mandira, the donee. Thus, on the basis of such pleading and in the absence of any evidence to the contrary, it cannot be said the suit was timebarred. 23. Insofar as the allegation of fraud/misrepresentation is concerned, the very premise of the allegation that the donor was under the impression that she was executing a power of attorney to empower Ashish, the husband of the donee, to collect rent for her Kolkata property, is not substantiated by any foundational evidence. There is nothing on record to indicate that Ashish used to collect rent on behalf of Rama, nor has any document come forth before the court to substantiate that Ashish used to collect such rent and deposit the same with Rama. 24. That apart, Rama, the donor, herself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment was that he could not remember whether the contents were read over and explained "entirely" or not. It may very well be that the irrelevant parts of the agreement were not read over and explained, which is not ipso facto fatal to the corroborative evidence otherwise adduced on behalf of the propounder to substantiate valid execution of the Will. 31. The statement of the attesting witness that he does not know anything except the LTI being put by Rama in the deed is also not fatal to the veracity of his evidence. An attesting witness is not supposed to know anything else than the actual execution of the deed in front of him. The knowledge of the attesting witness about the contents of the deed is not required to prove valid execution of the same in law. 32. The respondents seeks to make much out of the purported discrepancy between the statement of DW3, the scribe, that he did not know Ashish whereas Ashish, as DW4, said that he was a friend of DW3. In fact, DW3 stated that he does not know Ashish but also mentioned that Ashish might have come as a client sometimes to his office. The perception of friendship is personal and nothing hinges on the same in respect of the veracit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he subject land without the previous consent in writing of the Chairman of the Board of Trustees of the CIT. However, we do not find any clause within the four corners of the lease deed which invalidates such a transfer, even if made without such written prior permission. 41. The only provision which requires consideration in this context is Clause (2) of paragraph III of the deed, which provides that the Board will, on the written request of the lessees made three months after the expiration of the term of the lease, at the expense of the lessees, grant a further lease for a period of 99 years from the expiration of the said term, unless, at the time of such request, there is an existing breach or non-observance of any of the covenants on the part of the lessees. Thus, the maximum consequence which might have visited the lessees in the event of breach of any of the covenants of the lease deed, including Clause II (6), would be non-renewal of the lease after the expiry of its normal tenure of 99 years. 42. Hence, the violation of Clause II (6) is not otherwise fatal to the validity of such transfer, made without any prior written consent of the CIT. 43. A further factor which ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having been validly proved by corroborative evidence by the plaintiffs/appellants, we do not find any reason to hold that the deprivation, by itself, tantamounted to suspicious circumstance sufficient to dispel the presumption of correctness raised by the corroborative evidence in support of the valid execution of the deed. 48. Moreover, in the gift deed itself, sufficient explanation for transfer of the property in favour of the donee in exclusion of the donor's children was given. The donor stated that she had great love and affection for the done, who happened to be her daughter-in-law and the donee maintained great regards and esteem in her behaviour and dealings with the donor. It was further stated that the sons and daughters of the donor were well established in their lives. The husband of Rama, who subsequently shot off a letter which has been relied on by the respondent, was a confirming party to the deed and endorsed the transfer of the said land and premises in favour of the donee by way of gift by reason of natural love and affection for the donee, which is also recorded in the deed itself. The donor further asserted in the gift deed that she was executing the same in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded, permits him to appear as his witness at a later stage. 57. Hence, there is no fetter for the court to grant such permission even at a later stage when the party himself seeks to adduce evidence. In the present case, the learned Trial Judge granted such permission to DW2 after DW1 adduced evidence, thereby validating the belated adduction of evidence by the plaintiff Rama Devi as PW2. Hence, we did not find force in the contention of the appellant that the evidence of PW2 ought to be discarded on such ground. 58. In fine, on the basis of the observations made above, we are of the opinion that the learned Trial Judge acted patently contrary to the law and materials on record in declaring the disputed gift deed to be void and not binding on the plaintiff and granting permanent injunction against the defendants from selling, mortgaging, encumbering, alienating the suit property on the strength of the said document dated May 22, 1985. 59. Accordingly, FA No. 104 of 2017 is allowed on contest without costs, thereby setting aside the impugned judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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