Pratima Sarkar v. Debi Prosad Chowdhury — 1989 DIGILAW 445 (CAL)

ORDER The petitioners, who are the tenant in respect of premises No. 91, Deb Lane, P.S. Entally, Calcutta-700014 have obtained the present rule against the opposite party against the decision arrived at by the learned Munsif, 3rd Court at Sealdah in Title Suit No. 332 of 1975 disposing of the petitioners application under s. 17(2) of the West Bengal Premises Tenancy Act by order No. 71 dated November 21, 1984. 2. The case of the petitioners as made in the present rule, inter alia, is that one Smt. Pravabati Ghose, since deceased, was the owner of premises No. 91, Deb Lane, P.S. Entally, Calcutta-700014, who inducted Sri Debi Prosad Sarkar, since deceased, the predecessor-in-interest of the petitioners as a monthly tenant in respect of a portion of the said premises No. 91, Deb Lane at a rental of Rs. 25/- per month, in the year 1942 which was subsequently increased to Rs. 30/- payable according to the English Calendar. On the death of the said Smt. Pravabati Ghose, her only heir and daughter Smt. Ashalata Chowdhury (nee Ghose) inherited the suit premises and became the landlady of the petitioners predecessor-in-interest in respect of the said tenancy, which was inherited by the petitioners on the death of their predecessor-in-interest Sri Debi Prosad Sarkar, the original tenant. As the said Smt. Ashalata Chowdhury refused to accept rent from the petitioners for the month of March, 1974 on the pretext that by way of a family settlement or partition, the suit premises was allotted to the opposite party, who thus became their landlord, the petitioners started depositing rent with the Rent Controller. Subsequently, in the month of (?) 1975, the opposite party as plaintiff filed Title Suit No. 332 of 1975 in the 3rd Court of the learned Munsif at Sealdah against the petitioners for their eviction form the suit premises, inter alia, on the grounds of reasonable requirement and building and rebuilding. In the said suit the petitioners filed an application under s. 17(2) of the West Bengal Premises Tenancy Act, 1956, denying and disputing of the relationship landlord and tenant between the parties and also challenged the alleged Deed of Partition-cum-Family Settlement, inter alia, on the ground that the plaintiff-opposite-party had not acquired any right, title, interest or share in the suit premises by virtue of the said deed and the same was not binding upon the petitioner. The learned Munsif, however, by his order No. 71 dated 21st November, 1984 disposed of the said application under s. 17(2) of the West Bengal Premises Tenancy Act, 1956 holding, inter alia, that there was relationship of landlord and tenant between the petitioners and the opposite party and directed the parties to file their respective statement of accounts regarding arrears of rents within the stipulated period. Being aggrieved by the said order, the petitioners have come up in revision in this Hon’ble Court and obtained the present Rule. 3. It is contended by Mr. Ghose, learned Advocate, appearing on behalf of the petitioners that the learned Munsif had failed to construe or interpret and appearing the legal effect of the alleged Deed of Partition-cum-Family Settlement (Exhibit-5) and had passed his order upon a misconstruction of the said documents and that the learned Munsif also filed to consider that the opposite party had not acquired any title to the suit premises by virtue of the alleged Partition-cum-Family Settlement (Annexure-5) and because there was no real dispute between Smt. Ashalata and her spes successionis, namely, her sons and daughters including the plaintiff/opposite party, no transfer of any right, title or interest of Smt. Ashalata could be made under the law or under the alleged Deed which had been manufactured for creating a ground of eviction of the defendants from the suit premises. Mr. Ghose has strenuously argued that the dispute Partition-cum-Settlement Deed did not fulfill the necessary and essential requirements of such a deed as there was no bona fide intention intension on the part of the parties of the alleged deed to make an arrangement of the family properties with a view to resolving any dispute between them once for all or to decide, settle or resolve their conflicting titles for ever in respect of their ancestral property in order to bring peace and harmony in the family and according to Mr. Ghose the said document was created with the ulterior motive to get a decree for eviction against the petitioners from the suit premises. Mr. Ghose in support of his contention has referred to several decisions, namely, that of the Hon’ble Supreme Court, in the case of Sahu Madho Das & ors. v. Mukand Ram & anr. ( AIR 1955 SC 481 ); the Privy Council decision in the case of Mathukumalli Ramayya & ors. Mr. Ghose in support of his contention has referred to several decisions, namely, that of the Hon’ble Supreme Court, in the case of Sahu Madho Das & ors. v. Mukand Ram & anr. ( AIR 1955 SC 481 ); the Privy Council decision in the case of Mathukumalli Ramayya & ors. v. Uppalapati Lakshmayya (46 CWN 1008 PC) and a Division Bench decision of the Madhya Pradesh High Court in the case of Kasturchand Chhotmal v. Kapurchand Kewalchand ( AIR 1975 MP 136 ). 4. Mr. Dasgupta learned Counsel, appearing on behalf of the opposite party, however, has contended that the alleged Partition-cum-Family Settlement (Exhibit-5) was a valid document and it was acted upon the there was no infirmity and/or illegality in respect of the said document and it was not only binding upon the parties to the said document but also binding upon the petitioners. Moreover, the erstwhile landlady Smt. Ashalata Chowdhury also gave letter of attornment to the petitioners and the petitioner had also made inspection of the disputed Deed of Settlement and according to Mr. Das Gupta there is thus relationship of landlord and tenant existing between the parties to the suit and the order of the learned Munsif does not suffer from any material irregularity nor the same has been passed by the learned Munsif in excess of his jurisdiction or in the irregular exercise of his jurisdiction. In support of his contention regarding the legality of the disputed family settlement, Mr. Das Gupta has referred to the decision of the Supreme Court in the case of Kale & ors. v. Deputy Director of Consolidation & ors. ( AIR 1976 SC 807 ). 5. In support of his contention regarding the legality of the disputed family settlement, Mr. Das Gupta has referred to the decision of the Supreme Court in the case of Kale & ors. v. Deputy Director of Consolidation & ors. ( AIR 1976 SC 807 ). 5. So far as the facts of the present case are concerned, it clearly appears from the impugned order the Smt. Ashalata had given a letter of attornment of the petitioners previously, asking them to inspect the said Partition-cum-Family Settlement Deed as would appear from (Exhibit-E) which was duly received by the petitioners and the petitioners also held inspection of the said document and opposite party Witness No. 1, who is one of the brothers of the plaintiff/opposite party, also admitted in his evidence the title of the plaintiff in respect of the suit premises on the strength of the alleged Partition-cum-Family Settlement Deed and the said facts and also the fact that neither of the parties to the alleged Partition-cum-Family Settlement Deed had raised any question regarding the title of the opposite party in respect of the suit premises, were recorded by the learned Munsif in the impugned order and the learned Munsif had further observed in his order that from the plan annexed to the alleged Partition-cum-Family Settlement Deed, it would clearly appear that the suit property was allotted exclusively to the plaintiff/opposite party after making proper description and demarcation and the said allotment as well as the dispute deed were acted upon. Such being the state of facts, in my view, the learned Munsif’s order cannot be said to have been passed acting either in excess of jurisdiction or exercising irregular jurisdiction in the matter. 6. So far as the decisions cited at the Bar are concerned, the decision of the Privy Council in the case of Mathukumalli Ramayya & ors. Such being the state of facts, in my view, the learned Munsif’s order cannot be said to have been passed acting either in excess of jurisdiction or exercising irregular jurisdiction in the matter. 6. So far as the decisions cited at the Bar are concerned, the decision of the Privy Council in the case of Mathukumalli Ramayya & ors. v. Uppalapati Lakshmayya (supra) according to me, does not apply to the facts of the present case at all as that was a case in which the right of a Hindu Widow to alienate property by way of family settlement, before passing of the Hindu Succession Act, 1956 came in for consideration, as the alienation by the Hindu Widow was challenged by one Uppalapati Lakshmayya claiming to be the nearest reversioner to the estate of one Ramachandrudu on the death of his widow Achamma in 1926, on the ground that such alienation by the said widow had been wrongfully and/or illegally made. In the present case, however, no challenge has been thrown by any of the heirs of Late Jyoti Prosad Chowdhury in respect of the estate of the said deceased which estate along with the personal property of the widow of the deceased, were partitioned and/or settled amongst the heirs of the said deceased Jyoti Prosad Chowdury by the alleged Partition-cum-Family Settlement Deed executed by and between the said heirs including the opposite party and her mother, namely, the widow of the deceased, Smt. Ashalata Chowdhury. 7. So far as the decision of the Madhya Pradesh High Court in the case of Kasture and Chhotmal v. Kapurchand Kewalchand (supra) is concerned, it may be noted that it was decided inter alia, therein that where the parties are to get the property by inheritance in their respective branches and there is no chance of any litigation for the avoidance of which necessity of any family arrangement is felt, still then, if any family arrangement is made, it cannot be held to be valid, as in such a case, it does not fulfil the essential requisites of such a family settlement. Mr. Mr. Ghose, on the basis of the said decision, has, however, strenuously argued that the disputed deed also did not fulfil the essential requirements of a family settlement as there was no bona fide intention on the part of the parties to the alleged deed to make an arrangement of the family properties with a view to resolving any disputes between them once for all or to decide, settle or resolving their conflicting titles for ever in respect of their ancestral properties in order to bring peace and harmony in the family, on the contrary, according to Mr. Ghose the disputed deed was created with the ulterior motive to get a decree for eviction against the petitioners from the suit premises, but in my view that decisions too does not help the petitioners in any way inasmuch as that was also a case in which the family settlement was challenged by none else than a coparcener to the original Hindu Joint Family whose properties where sought to be partitioned and/or amicably settle and/or arranged between the coparceners to such a joint family by a deed of family settlement, in a suit brought by one of such coparceners for recovery of possession and for partition. 8. Lastly, so far as the decision of the Hon’ble Supreme Court in the case of Sahu Madho Das & ors. v. Mukand Ram & anr. (supra) is concerned, it is the contention of Mr. 8. Lastly, so far as the decision of the Hon’ble Supreme Court in the case of Sahu Madho Das & ors. v. Mukand Ram & anr. (supra) is concerned, it is the contention of Mr. Ghosh that as it was held in that decision that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the arrangement acknowledges and defines what the title is, as it is assumed that the title, claimed by the party under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned, the opposite party cannot claim any title to the disputed property by virtue of the alleged deed on the ground that such title always resided in him inasmuch as the disputed property belonged exclusively to his mother Smt. Ashalata but did not form part of the estate of his father Late Jyoti Prosad Chowdhury and so long as his mother was alive, the opposite party could at best be called as a spes successionis and as such the dispute deed was not binding upon the petitioners. 9. In answer to the said contention of Mr. Ghosh is concerned, it can, however, be said as has been held by the Supreme Court in the case of Kale & ors. (supra) at page 812 of the said judgment that “the object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are typing for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term “family” has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The Courts, have therefore, learned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement seeks to unsettle a settle dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits.” 10. It is also held in the said decision of the Supreme Court that the member who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledge by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or title in favour of such a person and acknowledgement him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same. 11. When bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement. 11. When bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement. In the said decision, the Supreme Court had also refused to consider its earlier decision in the case Sahu Madho Das’s case (supra) as cited by Mr. Ghosh. 12. So far as the concept of family is concerned, reference may be made to the decision of the Supreme Court in the cases of Krishna Biharilal v. Gulabchand ( AIR 1971 SC 1041 ) and Ram Charan Das v. Girjanandini Devi ( AIR 1966 SC 323 ). The Supreme Court in those decisions held inter alia that to consider a settlement as a family arrangement, it is not necessary that the parties to the compromise should all belong to one family. The word “family” in the context of family arrangement is not to be understood in a narrow sense of being a group of persons who are recognized in law as having a right of succession or having a claim to share in the property in dispute. If the dispute which is settled is one between near relations then the settlement of such a dispute can be considered as a family arrangement. The courts lean strongly in favour of family arrangement to bring about harmony in a family and do justice to its various members and avoid in anticipation future disputes which might ruin them all. 13. Furthermore, the disputed family arrangement and/or settlement in the present case also appears to have been acted upon by the parties. One of the brothers of the opposite party also deposed at the time of hearing of the application under s. 17(2) of the West Bengal Premises Tenancy Act as O.P.W. no. 1 acknowledging the title of the plaintiff to the suit premises and such being the position, it cannot be held that the plaintiff had not acquired any title to the suit premises by virtue of the disputed family settlement as he was merely a spes successionis of his mother Smt. Ashalata Chowdhury in respect of the disputed premises at the time of creating such family settlement. Hence, my view, the learned Munsif has rightly held that there is relationship of the landlord and tenant between the petitioners and the opposite party so far as the suit premises is concerned. The Rule is accordingly, discharged without any order as to costs. 14. Parties are directed to submit their respective statements of accounts so far as the arrears of rents is concerned, in the Court below, within a month from the date of communication of this order to the trial court so as to enable the learned Munsif to finally decide the question of payment of arrears of rents by the petitioners and the learned Munsif is directed to decide such question to pass appropriate orders within one month from the date of filing such statements. If any party files to file such statement within the stipulated period, the learned Munsif is to proceed ex-parte in the matter. Since the suit is on the grounds of reasonable requirement and building and rebuilding and pending for quite some years, the learned Munsif is further directed to dispose of the suit as early as possible without delaying hearing of such suit unnecessarily and also without granting, unnecessary adjournment to the parties. The petitioners, if they have not filed their written statement in the suit as yet, must file the same by November, 1989 positively. 15. Let us order be communicated to the trial court forthwith and the office is to report within two week from date about the communication of this order to the trial court. Rule discharged.