TaxTMI 
TaxTMI 
2025 (3) TMI 2
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....al Judge proceeded primarily on the premise that there was a violation of Clause II (6) of the original lease deed of 99 years which was executed by the Calcutta Improvement Trust (CIT) in favour of the donor and one Namita Devi on July 26, 1961. 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 ....
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....the original lease deed between CIT on the one hand and Rama and Namita on the other could not operate as a fetter in execution of the deed of gift in favour of appellant no.1 in view of Section 108(j) of the Transfer of Property Act, which empowers the lessee 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....
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.... as to the suit being time-barred was not dealt with by the learned Trial Judge at all, although it is incumbent upon the court to decide such issue, even irrespective of any objection, within the contemplation of Section 3 of the Limitation Act. 22. We find that despite the original 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 foundat....
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....handra, the father of Durga, which was marked as Exhibit-4, does not proof anything but his own opinion on the issue. 30. The argument that the attesting witness (DW2) does not remember whether the contents of the deed were read over and explained to Rama are not correct, since the exact statement 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....
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....and Namita Devi is concerned, the bar incorporated in the said clause is not backed up by any sanction or penal provision in the lease deed itself, thus indicating that the said clause is directory and not mandatory. 40. 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. 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 c....
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....t deed was a valuable property and the execution of the same in favour of the daughter-in-law of the donor's elder brother-in-law by depriving her own children gives rise to suspicious circumstances, the same, by itself, is not sufficient justification for invalidating the deed. The execution of the gift deed and its registration 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 r....