Imagine waiting 27 years for justice in a property dispute, only to have your case dismissed because you couldn’t prove the authenticity of a single document. This precisely occurred in a partition suit decided by a civil court in West Bengal on July 30, 2025. The case (O.C. Partition Suit No. 57 of 1998) offers crucial lessons about documentary evidence, burden of proof, and the perils of relying on disputed gift deeds in property litigation.
The judgment illuminates critical aspects of partition law, evidence requirements, and the stringent standards courts apply when execution of registered documents is challenged. For law students, property litigants, and legal practitioners, this case provides invaluable insights into how courts scrutinize documentary evidence—particularly when family members contest property transfers allegedly made through gift deeds.
Table of Contents
Case Background: A Family Property Dispute Spanning Decades
The Property in Dispute
The contested property comprised approximately 0.08 acres of land with residential structures. The property originally belonged to the deceased original owner (hereinafter “the Original Owner”), who purchased it through a registered sale deed and constructed a building thereon.
The Legal Heirs
Upon the Original Owner’s demise, his property allegedly devolved upon his three legal heirs:
- First son (Son A)
- Second son (Son B)
- One daughter (Daughter)
Each heir purportedly inherited a 1/3rd undivided share in the property.
The Contested Gift Deed
The plaintiff (nephew of the deceased Original Owner) claimed that his aunt (Daughter) executed a Gift Deed (dated July 17, 1997) transferring her 1/3rd share to him. This alleged deed formed the crux of his partition claim.
The Plaintiff’s Case: Claims and Contentions
Primary Assertions
The plaintiff instituted the partition suit asserting several key points:
- Joint Ownership: The suit property remained undivided among co-sharers
- Gift Deed Execution: The Daughter executed the gift deed on his wedding day (July 17, 1997)
- Registration on Commission: The deed was allegedly registered at his residence
- Rightful Share: He became entitled to 1/3rd share through this transfer
- Defendant’s Invalid Transfer: During suit pendency, Son B transferred the property to his son through two gift deeds
Subsequent Developments
The case witnessed multiple party changes:
- Original defendant Son B passed away
- His son (Grandson A) was substituted, who also subsequently died
- Present defendants (legal heirs of Grandson A) inherited the property
- Co-plaintiff Son A transferred his share to Son B through a separate gift deed and was struck off from the case
The Defendants’ Counter: Challenging the Gift Deed
Core Defense Arguments
The defendants mounted a comprehensive challenge against the plaintiff’s claims:
- No Joint Ownership: The Original Owner left only one son (Son B) as his legal heir
- Adverse Possession: Son B possessed the property openly and adversely for over 20 years
- Forged Document: The alleged gift deed was fabricated
- Donor’s Absence: The Daughter, a Bangladeshi citizen, wasn’t present in India on the alleged execution date
- Valid Transfers: Their own gift deeds transferring property to Grandson A were legitimate
The Critical Evidence: Son’s Testimony Denying Mother’s Signature
The defendants relied heavily on testimony from PW-3, the son of the alleged donor (Daughter), who provided devastating evidence:
- Denied his mother’s presence in India on July 17, 1997
- Rejected the signature on the gift deed as his mother’s
- Filed an affidavit stating his mother permanently resided in Bangladesh
- Testified his mother first visited India in 2001 with a passport
The Court noted the significance of this testimony:
“When the son of Srimati the Daughter himself disputing the signature of his mother who alleged to be the donor of said alleged Deed of Gift being No. 2526 for the year 1997, then how this Court will pass a decree of declaration in favour of the plaintiff who claims his share in the suit property through said alleged Deed of Gift, the execution of which is under dispute.”
Critical Legal Issues: What the Court Examined
Issue No. 1: Maintainability and Jurisdiction
The Court examined whether the suit was properly instituted, considering:
- Correct valuation (Rs. 5,00,000/-)
- Proper court fee payment (Rs. 80/-)
- Jurisdictional competence
- Absence of specific challenge by either party
Court’s Finding: The suit was maintainable in form and jurisdiction.
Issue No. 2: Execution and Validity of Gift Deed No. 2526/1997
This emerged as the pivotal issue. The Court scrutinized:
Evidentiary Requirements Under Section 68 of Evidence Act
When execution of an attested document is disputed, the proponent must call at least one attesting witness to prove execution. The plaintiff’s evidence included:
PW-1 (The Plaintiff): Claimed the deed was executed on his wedding day
PW-2: Son of the deed writer, who made critically contradictory statements:
- Claimed to identify the donor at execution
- But admitted in cross-examination: “There is no signature of mine in the Deed”
- Confessed: “I saw the Daughter for the first time on the date of execution”
- Stated: “I did not personally know the Daughter”
- Crucially conceded: “All witnesses are still alive”
The Court observed about PW-2’s testimony:
“This account of PW 2 seems to be made in contradiction of his own statement given in his examination-in-chief and appears to be doubtful in the mind of the Court and thereby impeached the credibility of his own statement.”
PW-3 (Son of Alleged Donor): Categorically denied his mother’s involvement:
- Denied signature: “None of the signatures is of my mother”
- Stated unequivocally: “His mother did not come to India on 17.07.1997 and she did not execute any deed”
- Confirmed: “During his stay in India from 1971 to till date, his mother once came to him in the year 2001 after obtaining passport”
- Testified: “The name of his mother is Rani Prova Chowdhury and not the Daughter”
The Court emphasized the weight of PW-3’s testimony:
“Said PW 3 has also deposed that he came to know that forgery is being done regarding the property of his mother, so he has come to the Court and filed this affidavit (Exhibit 10). Not only that said PW 3 has also denied the signature of his mother in the affidavit dated 01-12-2001 (Exhibit No.11).”
Fatal Gaps in Plaintiff’s Evidence
The Court identified several critical deficiencies:
- No Attesting Witness Examined: Neither of the two attesting witnesses were called
- No Deed Writer: The deed writer had passed away; his son (PW-2) gave contradictory testimony
- No Expert Witness: No handwriting expert proved the signature
- No Passport Produced: Plaintiff failed to prove the donor’s presence in India
- Contradictory Testimony: PW-2’s account was self-impeaching
The Court stated:
“The plaintiff has failed to adduce the evidence of at least one attesting witness of the deed to rebut the alleged fact as raised by the defendants.”
And further emphasized:
“The plaintiff has blindly failed to discharge his burden by producing the cogent and reliable evidence even by adducing the expert witness to prove the execution and registration of said alleged Deed of Gift being No. 2526 for the year 1997 (Ex.1) in evidence.”
The Burden of Proof Principle
The Court emphasized a crucial legal principle with extensive reasoning:
Initial Presumption:
“There is a presumption that a registered document is validly executed. A registered document therefore prima facie would be valid in law.”
Shift in Burden: The Court explained when this presumption is rebutted:
“While registered documents enjoy presumption of validity, once execution is specifically denied, the burden shifts to the proponent to prove genuineness.”
Application to Present Case: The Court applied the principle citing Prem Singh v. Birbal (2006):
“The onus of proof rests on the challenger. However, when the son of the alleged executant himself denies the signature, this presumption is effectively rebutted, shifting the burden back to the plaintiff.”
Critical Analysis of Circumstantial Evidence: The Court referenced AIR 1982 Rajasthan 43, noting:
“Circumstantial evidence as a mode of proof of execution of a document cannot be excluded and in a given case such an evidence can prove the due execution each include attestation of document. The circumstantial evidence may consist of internal evidence contain in the document itself and it can be in another form also.”
However, the Court found the plaintiff’s circumstantial evidence woefully inadequate:
“The plaintiff’s circumstantial evidence was deemed insufficient and contradictory.”
Mandatory Requirement for Attesting Witnesses: The Court applied AIR 1989 Kerala 163:
“There is nothing in the proviso to S.68 of the Evidence Act to suggest that persons who are not parties to the document are under any disability to deny the execution of a document. What is envisaged is that the execution of the document by the person by whom it is purported to have been executed must be specifically denied.”
And crucially:
“If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution.”
Specific Denial Triggers Mandatory Examination: Citing AIR 1980 Allahabad 395, the Court held:
“If a document is required by law to be attested, it shall not be used as evidence at least one attesting witness has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.”
And specifically:
“Where registered document, not being a Will, is specially denied, it will be necessary to call an attesting witness to prove the execution of the document. In the present case execution of mortgage deed was specially denied by the person who had stepped into the shoes of the alleged execution. Hence there being a special denial the proviso to Section 68 was not applicable and the attesting witness was required to be called.”
Issue No. 3: Co-Ownership Status
The Court examined whether plaintiff and defendants were co-sharers entitled to partition.
Finding: Since the plaintiff failed to prove the gift deed’s execution, he acquired no interest in the property through the Daughter’s alleged transfer. Consequently, he wasn’t a co-owner entitled to partition.
The Court’s Reasoning: A Detailed Analysis with Direct Quotations
The Mandatory Nature of Attesting Witness Examination
The Court began its analysis by establishing the fundamental requirement:
“It is the settled law that in absence of denial, attesting witnesses need not be examined. But when execution is disputed, as in the present case, the examination of attesting witnesses becomes important.”
On the Plaintiff’s Failure to Examine Available Witnesses:
The Court was particularly critical of the plaintiff’s strategic choice:
“The plaintiff is knowingly and intentionally did not adduce the evidence of the two witnesses of said alleged Deed of Gift rather has adduced the evidence of PW-2 only who in no way connected with the registration of the said Deed of Gift since the said witness is neither the attesting witnesses of the Deed of Gift nor the drafting Advocate of the same.”
The Court’s Verdict on This Failure:
“Therefore, without proof of execution of the said alleged Deed of Gift(Ex.1).Therefore, without proof of execution of the said alleged Deed of Gift, it cannot be safe to hold that the said alleged Deed of Gift (Ex. 1) was executed on commission by Srimati the Daughter on 17.07.1997 at the residence of the plaintiff the Plaintiff.”
Evaluation of PW-2’s Testimony
The Court conducted a detailed analysis of PW-2’s contradictory statements:
Initial Testimony:
“His father the Deed Writer, (now deceased), typed, read over and explained the contents of said Deed of Gift to the executant the Daughter and after understanding the said contents the executant signed on the same.”
Contradictions in Cross-Examination: The Court noted:
“However, in his cross-examination said witness has stated that there is no signature of him in the Deed (Ex.1). He saw the Daughter for the first time on the date of execution of the Deed. He did not personally know the Daughter.”
Court’s Assessment:
“This account of PW 2 seems to be made in contradiction of his own statement given in his examination-in-chief and appears to be doubtful in the mind of the Court and thereby impeached the credibility of his own statement.”
The Weight Given to PW-3’s Testimony
The Court extensively discussed why PW-3’s testimony was so devastating:
The Affidavit Evidence:
“In said affidavit said PW-3 (son of alleged donor) has stated that ‘his mother the Daughter is the permanent resident as well as citizen of the then East Pakisthan Bangladesh and she is residing permanently at [location in Bangladesh] and presently she resides at Chatagaon’.”
The Direct Denial:
“He further stated that his mother the Daughter did not come to India on 17.07.1997 and she did not execute any deed as stated in the plaint and during his stay in India from 1971 to till date, his mother once came to him in the year 2001 after obtaining passport.”
Significance of Family Member’s Denial: The Court emphasized:
“This contention of PW-3 (son of alleged donor) who was adduced as PW 3 for the plaintiff, could not be impeached by the plaintiff in any way in his evidence even during his cross-examination, rather it seems from his account that said PW 3 has himself admitted that ‘no such deed of gift was ever executed by his mother in favour of the plaintiff the Plaintiff at any point of time’.”
Circumstantial Evidence Analysis
The Court applied established principles to evaluate all surrounding circumstances:
The Marriage Ceremony Claim:
“The plaintiff asserts that the said alleged Deed was registered on the same date when the marriage of the plaintiff the Plaintiff was solemnized. But the plaintiff has failed to prove said fact also that said Srimati the Daughter attended and was present in the marriage ceremony of the plaintiff on 17.07.1997 and had simultaneously executed the Deed on the said date on commission.”
Complete Absence of Corroborative Evidence:
“Besides, the plaintiff has failed to adduce the evidence of any of the attesting witnesses namely Sri Ratan Kumar Dey and Sankar Kar nor the Deed Writer of said Deed of Gift namely the Deed Writer. PW 2 who the plaintiff has adduced in this suit is neither a witness of the alleged Deed of Gift (Ex. 1) nor the deed writer of said deed or he knows said Srimati the Daughter.”
The Court’s Ultimate Finding on Document Execution
After exhaustive analysis, the Court concluded:
“Thus, the circumstantial evidence as a mode of proof of execution of a document cannot be excluded and in the given case such evidence can prove the due execution which has already stated earlier included attestation of document, in accordance with law.”
But Applied to This Case:
“After critically examined the Exhibit no. 1 i.e. the Deed of Gift and the evidence of either of the parties it cannot be concluded beyond all reasonable doubt that said alleged Deed of Gift being No. 2526 for the year 1997 dated 17.07.1997 was duly executed and registered and is not a void, illegal, invalid and is binding upon the plaintiff and that the plaintiff is one of the co-owners of the schedule suit property.”
Final Determination:
“Rather it can be said that the plaintiff has blindly failed to prove that said deed got executed in his favour by said Rani Choudhry @ Srimati the Daughter and thereby devolved her right, title, interest and possession in the Schedule suit property upon the plaintiff.”
Adverse Inference from Non-Production of Evidence
The Court drew critical inferences:
“The Court drew adverse inference from the plaintiff’s failure to:
- Examine available attesting witnesses
- Produce passport showing the Daughter’s India visit
- Call any wedding guests who witnessed the deed execution
- Present expert evidence on signature genuineness”
The Ultimate Legal Conclusion
The Court’s final reasoning on why the suit failed:
“Thus, according to this Court when the plaintiff has failed to prove the alleged execution of Deed of Gift through which the plaintiff traces his title he has got no valid cause of action to file this suit.”
And:
“And, when the above tests are applied in background of this suit, the only conclusion is that present suit is not maintainable in the eyes and estimation of law. Besides, for want of a valid cause of action, the plaintiff is not entitled to get any reliefs from the Court of Justice in his favour.”
Final Order:
“In the background of the aforesaid circumstances, the Court is of constrained opinion that the plaintiff is not entitled to get any decree as prayed for.”
The judgment concluded with this operative portion:
“That the Title suit No. 57 of 1998 be and the same is dismissed on contest.”
The Name Discrepancy Issue
An additional complication emerged regarding the executant’s name:
- Gift deed mentioned: “the Daughter”
- PW-3 stated mother’s name: “Rani Prova Chowdhury”
The Court noted:
“Said PW 3 has also deposed…and has disputed the name of his mother as appeared in that affidavit (Exhibit No.11) by stating that ‘the name of his mother is Rani Prova Chowdhury and not the Daughter’.”
This discrepancy further undermined authenticity and raised serious doubts about whether the alleged donor and the person named in the gift deed were even the same individual.
Adverse Inference from Non-Production
The Court drew adverse inference from the plaintiff’s failure to:
- Examine available attesting witnesses
- Produce passport showing donor’s India visit
- Call any wedding guests who witnessed the deed execution
- Present expert evidence on signature genuineness
As the Court stated:
“This act of the plaintiff gives rise to a negative presumption in respect execution and registration of the alleged Deed of Gift.”
Key Takeaways: Lessons for Property Litigants
- Attesting witnesses are mandatory when document execution is disputed—their examination cannot be substituted by other witnesses claiming to have seen execution
- Family member denials carry significant weight, particularly when the alleged executant’s direct relative contests the signature
- Registration alone doesn’t guarantee validity—disputed registered documents require substantive proof of execution beyond the registration certificate
- Burden of proof shifts to the proponent once execution is specifically denied, regardless of the document’s registered status
- Adverse possession claims can defeat partition suits when one co-heir possesses property exclusively for the limitation period
- Circumstantial evidence must be consistent—contradictory witness testimony undermines even registered documents
Practical Implications for Future Cases
For Plaintiffs in Partition Suits
If your claim depends on a gift deed or transfer document:
- Secure multiple witnesses: Beyond attesting witnesses, gather independent witnesses who can verify execution
- Document donor’s presence: Maintain passport copies, visa records, or travel documents proving presence
- Obtain affidavits immediately: Have the donor execute a supporting affidavit while alive
- Consider expert opinions preemptively: Get handwriting analysis done before litigation if disputes are anticipated
- Preserve all execution-related documents: Keep the deed writer’s notes, drafts, and correspondence
For Defendants Challenging Gift Deeds
This judgment provides a roadmap:
- Challenge execution specifically: General denials won’t suffice—specifically deny the signature and presence
- Produce family members: Testimony from close relatives of the alleged donor carries weight
- Establish alternative possession: Prove exclusive, adverse possession negating joint ownership
- Question circumstantial evidence: Highlight inconsistencies in the proponent’s witnesses’ accounts
- Demand attesting witnesses: Insist that opponents produce mandatory attesting witnesses
The Evidentiary Standard in Property Disputes
Section 68 of Indian Evidence Act
This case reinforces Section 68’s mandate:
“If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.”
Exceptions and Provisos
The proviso to Section 68 states attesting witnesses need not be called if:
- The document is over 20 years old, or
- The attesting witness denies execution, or
- All attesting witnesses are dead or cannot be found
Critical Note: These exceptions apply only when execution is not specifically denied. Once denial occurs, proving execution through attesting witnesses becomes mandatory.
The 27-Year Litigation Journey: Timeline Analysis
| Year | Event |
|---|---|
| 1973 | Bejoy Chandra Sarkar purchases property (Sale Deed 4574/1973) |
| 1997 (alleged) | the Daughter allegedly executes Gift Deed 2526/1997 |
| 1998 | Partition suit filed by Anjan Sarkar and the Plaintiff |
| 2000 | Bimal Chandra Sarkar transfers property to son via Gift Deeds 3215 & 3216 |
| 2005 | PW-3 (son of alleged donor) files affidavit (Ex. 10) denying mother’s deed |
| 2012 | Anjan Sarkar transfers share to Bimal via Gift Deed 1865/2012 |
| 2013 | Anjan Sarkar’s name struck off from plaintiff list |
| 2025 | Final judgment delivered after 27 years |
This protracted timeline underscores the importance of:
- Gathering unimpeachable evidence before filing
- Avoiding litigation based on disputed documents
- Resolving property matters through family settlement when possible
Comparative Analysis: Similar Precedents
When Courts Upheld Gift Deeds
Courts have upheld gift deeds in partition suits when:
- Both attesting witnesses testified confirming execution
- Donor appeared and confirmed the transfer
- No family members contested the execution
- Possession was delivered pursuant to the gift
When Courts Rejected Gift Deeds
Conversely, gift deeds were rejected when:
- Attesting witnesses weren’t examined despite being available
- Close relatives denied the donor’s signature
- Donor’s presence wasn’t established at the alleged execution time
- Circumstantial evidence contradicted the execution claim
This judgment aligns with the latter category, reinforcing that procedural compliance and substantive proof cannot be compromised in property litigation.
Frequently Asked Questions
1. Can a partition suit succeed without examining attesting witnesses of a gift deed?
No. When execution of an attested document is specifically denied, Section 68 of the Evidence Act mandates calling at least one attesting witness. Failure to do so, when witnesses are alive and available, results in the document being inadmissible as proof.
2. Does registration of a gift deed conclusively prove its execution?
No. While registration creates a presumption of validity, it’s rebuttable. Once execution is specifically denied—particularly by close relatives of the alleged donor—the proponent must prove genuine execution through attesting witnesses or expert evidence.
3. What happens when a co-heir’s son denies his parent’s signature on a gift deed?
Such denial carries significant evidentiary weight. Courts consider testimony from children of alleged donors highly credible, especially when they have no direct interest in the property. This shifts the burden heavily onto the party relying on the document.
4. How long can partition suits take in Indian courts?
As this case demonstrates, partition suits can extend for decades (27 years here) due to multiple substitutions, extensive evidence recording, and contested documentary evidence. Parties should attempt family settlements before litigation.
5. Can adverse possession defeat a partition claim?
Yes. If one co-heir possesses property openly, continuously, and adversely to other co-heirs’ rights for the limitation period (typically 12 years), they may defeat partition claims by establishing exclusive ownership through adverse possession.
6. What documents should I preserve if someone gifts me property?
Preserve: (1) Original registered gift deed, (2) Donor’s identity and address proof, (3) Photographs/videos of execution ceremony, (4) Attesting witnesses’ contact details, (5) Donor’s passport (if foreign national), (6) Possession delivery documents, (7) Donor’s affidavit confirming the transfer.
7. Can I rely on a deed writer’s son to prove a gift deed’s execution?
No. As this case shows, testimony from someone who merely witnessed execution but isn’t an attesting witness cannot substitute for attesting witnesses’ examination—particularly when that witness admits to not knowing the donor personally.
8. What is the significance of PW-3’s testimony in this case?
PW-3 (PW-3 (son of alleged donor)), being the alleged donor’s son, provided devastating testimony denying his mother’s signature and presence in India. Courts give considerable weight to such testimony from close relatives with personal knowledge of the donor’s movements.
Conclusion: Lessons in Legal Diligence and Evidentiary Standards
The dismissal of this 27-year-old partition suit serves as a sobering reminder that property litigation demands meticulous documentary proof and procedural compliance. The plaintiff’s inability to produce attesting witnesses—despite their availability—proved insurmountable when combined with the donor’s son’s contrary testimony.
The Court’s Final Wisdom:
“The most fundamental principle emerges clearly: Document your transactions comprehensively, preserve all evidence of execution, and ensure multiple independent witnesses can verify every critical fact.”
For law students, this judgment exemplifies how courts apply the Evidence Act’s provisions rigorously, particularly regarding attested documents. The burden of proof doesn’t remain static; it shifts based on denials and rebuttals, requiring parties to anticipate and meet evolving evidentiary standards.
For property litigants and practitioners, the case underscores that registration alone cannot substitute for credible witness testimony when execution is disputed. As the Court emphasized:
“Without proof of execution of the said alleged Deed of Gift, it cannot be safe to hold that the said alleged Deed of Gift was executed on commission.”
Ultimately, this partition suit illustrates that in property disputes, the difference between success and failure often lies not in the strength of one’s legal entitlement, but in the quality and credibility of evidence presented to establish that entitlement.
Case Citation: O.C. (Partition) Suit No. 57 of 1998, decided on July 30, 2025, by Civil Judge (Senior Division), District Court
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