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Gauhati High Court · body

1999 DIGILAW 195 (GAU)

Saru Bala Pal v. Amiya Bhusan Pal and Ors.

1999-06-07

N.CHOWDHURY

body1999
This appeal is directed against the judgment and preliminary decree passed by the learned Addl Subordinate Judge, West Tripura dated 20.2.91 and 6.3.91 respectively in Title Suit No. (Partition) 54 of 1981 dismissing the suit instituted by the appellant as plaintiff which has arisen in the following circumstances. 2. I have heard Mr. BB Deb, learned senior counsel and Mr. M. Kar Bhowmik, learned counsel for the appellants. Also heard Mr. B. Das, learned senior counsel for the respondents. 3. The title suit was instituted by the appellants praying for preliminary decree for partition of the property by metes and bounds and for declaration that the deed dated 2.11.80 registered on 13.7.81 in respect of properties within the plaintiff and defendants as null and void, inoperative and not binding upon the parties. The h plaintiff and the predecessor of the defendants were the full blooded brothers and they used to live in the same mess and held respective properties jointly acquired from joint fund as well as the properties acquired from their parents. The predecessor of the defendants, namely, Monoranjan Paul (since deceased) left the defendants as his only heirs. Before the death of Monoranjan Paul plaintiff started living in a separate mess though properties remained joint. A deed of partition was executed by the plaintiff and defendants on 2.11.80 which Was registered on 13.7.81 in respect of some of the joint properties. The said partition did not include all the joint properties. The plaintiff pleaded that the said partition was not affected by metes and bounds and did not allocate 50% of the share of the plaintiff in the joint property. The plaintiff also pleaded that the defendant Nos 6 and 10 did not execute the partition deed dated 2.11.80. According to the plaintiff, the partition deed was vitiated by fraud committed by the defendants. The plaintiff demanded the partition of properties by metes and bounds putting a claim of 50% of the share and on refusal by the defendants to comply with his demand, the suit was instituted accordingly.' 4. All the defendants including the minor defendants through their natural guardian i.e. the mother contested the suit and submitted written statement. The plaintiff demanded the partition of properties by metes and bounds putting a claim of 50% of the share and on refusal by the defendants to comply with his demand, the suit was instituted accordingly.' 4. All the defendants including the minor defendants through their natural guardian i.e. the mother contested the suit and submitted written statement. The respondents in their written statement stated that the plaintiff and their predecessor amicably partitioned-the joint property by way of a family arrangement at the instance of the respectable persons and well wishers during the life time of their predecessor and both the parties were possessing separately the properties allocated by the family arrangements. Defendants pleaded that on terms of the family settlement a deed was drawn up which was signed by both the parties and Salishdar. It was, inter alia pleaded that the liability of mortgage deed of Rs. 16,750 (Rs.8,000+Rs.8,750) and other outstanding income tax debt fastened on the predecessor of defendants by the family settlement and in consideration of the fact that the properties standing in the name of late Monoranjan Paul which were acquired by his personal business, Salishdar allotted a little more property in the share of predecessor of defendants and both the parties accepted the terms of family settlement deed and acted upon the same. It was the plaintiff who was anxious to embody the family arrangement in a partition deed and at his instance the parties executed the partition deed in terms of the family settlement. At the behest of plaintiff Srish Chowdhury agreed to increase the breadth of pathway on Dag No. 14210 from 6 feet (as per family settlement deed) to 12 feet and plaintiff promised to pay for the increased area of pathway to the defendants and the same was embodied in the partition deed. The defendant No.6 at the time of execution of partition deed was outside the State for study and the husband of defendant No. 10 was also away from home on official duty and accordingly the defendant Nos 6 and 10 could not execute the deed. The defendant No.6 at the time of execution of partition deed was outside the State for study and the husband of defendant No. 10 was also away from home on official duty and accordingly the defendant Nos 6 and 10 could not execute the deed. The defendants wanted to defer the execution of the partition due to the absence of the aforesaid defendants, but the plaintiff was unrelenting and suggested that the property of defendant Nos 6 and 10 will remain in joint allotment of the share and they may get their share from the share allotted to the defendants as and when demanded. The partition deed was accordingly executed. The plaintiff himself presented the partition deed in Registration Office when the defendants were absent. The defendants appeared before the Registration Office on 13.7.81 and admitted the execution on receipt of the notice from the Registrar and the same was registered accordingly. The plaintiff denied the allegation of fraud. The following issues were framed by the trial Court. “(l)Has, the plaintiff any cause of action for this suit ? (II) Is the suit for declaration simplicities without a suit for cancellation of the partition deed dated 2.11.80, maintainable in law ? (III) Has the plaint properly valued and stamped and is it liable to be rejected under O VIIR11 (b) of CPC ? (IV) Is the suit barred by the principle of estoppel, waiver and acquiescence ? (V) Have the suit properties both movables and immovables, been previously partitioned by family settlement between plaintiff and late Monoranjan Paul and are the plaintiff and defendants in separate possession of the suit properties according to the partition of family settlement ? (VI) Has the partition deed dated 2.11.80 been executed and registered in furtherance of the previous partition and is it a legal and valid deed ? Or is it fraudulent deed as alleged by plaintiff ? (VII) Is the Schedule G property, at all in existence and in possession of the parties ? . (VIII) Whether Schedule H to K properties and hut in Schedule D are ejmali properties of the plaintiff and defendants as claimed by plaintiff by amendment ? (IX) Is the plaintiff entitled to get a decree for partition of the suit properties ? (X) To what relief or reliefs the plaintiff is entitled ?" Plaintiff on his behalf examined 6 witnesses and defendants examined 4 witnesses. (IX) Is the plaintiff entitled to get a decree for partition of the suit properties ? (X) To what relief or reliefs the plaintiff is entitled ?" Plaintiff on his behalf examined 6 witnesses and defendants examined 4 witnesses. In addition, both the parties adduced numerous documents before the trial Court. A Survey Commission was issued for local investigation. The report of the Survey Commissioner was accepted by the Court after hearing objection as per order dated 21.2.87. The report of the Survey Commissioner, Saham of parties, Chitha of suit property and field book were accordingly exhibited. The learned trial Court after considering the evidence on record dismissed that suit. 5. The trial Court after considering the pleadings and evidence on record found that on 20.12.80 the Salish took place. The Salish was held for amicable family settlement of the properties of the plaintiff and the predecessor of defendants. But the same was not acted upon. Ext 2 (also Ext A) also reflected the fact that the family arrangement was modified in modification of Ext 1 and the same was accepted by the plaintiff and the predecessor of defendants. The learned trial Court examined the Ext 3 and found that it was accepted by the parties. It also found that the plaintiff received the necklace of gold of the deity (Goddess Laxmi) and the certified copy of original deed and the order of release of the property from encumbrance on 4.7.76. The trial Court also found that the Ext C was prepared on the basis of Ext 2 (also Ext A). The Ext C disclosed the value of the immovable property allotted in the share of the plaintiff as Rs.25,000 and that of the defendants as Rs.75,000. The parties relinquished their respective claims in the properties allotted in Saham of other. The learned trial Court also took into consideration that pathway mentioned in Ext 2 has been recorded as 12 feet in breadth and 50.3" in length. But in Ext 2, it was shown as 6 feet in breadth showing variation between Ext 2 and Ext C excludes the G Schedule land of the plaint. The learned trial Court also took into consideration that pathway mentioned in Ext 2 has been recorded as 12 feet in breadth and 50.3" in length. But in Ext 2, it was shown as 6 feet in breadth showing variation between Ext 2 and Ext C excludes the G Schedule land of the plaint. Having taken into consideration the Ext 2, the learned trial Judge found that G Schedule land measured 3 Kanis out of which I Kani 10 Gandas was allotted to the plaintiff and the remaining 1 Kani 10 Gandas of the land of the same property purchased in the name of the father of the plaintiff and late Monoranjan Paul was allotted to the share of the predecessor of the defendants while the land of the jote allotted to the plaintiff was subsequently made khas. The trial Court after considering the evidence on record did not find any inequality in allotting some more property to the predecessor of defendants in view of the fact that he shouldered the liability to get the properties released from the encumbrance. The learned trial Court also rejected the claim of the plaintiff regarding the remaining portion of the C Schedule land of the joint property and held that since the above property was purchased in the name of the predecessor of the defendants, the same was treated as self acquired property of the defendants. The learned trial Court accordingly decided the issue No. V in favour of the defendants and held that Ext 2 family agreement and Ext 3 were acted upon by the parties and the parties were possessing the allotted share separately both movable and immovable. Also indicated earlier, the learned trial Court turned down the plea of the plaintiff that the property purchased in the name of predecessor of the defendants as joint property and rejected the plea that the said purchase was a benami transaction. While deciding theissue No. VI, the trial Court rejected the plea of the plaintiff that the partition deed was vitiated by fraud. The learned trial Court pointed out variance of pleadings and evidence of the plaintiff and on the basis of materials on record, the trial Court refused to entertain the plea of the plaintiff and held that Ext C partition deed was a valid piece of document. The learned trial Court pointed out variance of pleadings and evidence of the plaintiff and on the basis of materials on record, the trial Court refused to entertain the plea of the plaintiff and held that Ext C partition deed was a valid piece of document. The learned trial Court on consideration of the evidence on record found that the plaintiff failed to prove that defendants were in possession of the G Schedule land and reached the conclusion and held that the G Schedule land was non­existent. The learned trial Court held that there was no property in existence on the day of the suit requiring further partition of the property. Issue Nos II, III and IV were decided in favour of the plaintiff and in view of his decision in Issue No.V and VI Issue No.I was decided against the plaintiff. The learned trial Court accor­dingly dismissed the suit against the defendants without cost. Hence this appeal. 6. Mr. BB Deb, learned senior counsel appearing with Mr. M. Kar Bhowmik, learned counsel for the appellants has submitted that the learned Court below fell into serious error in not considering the evidence on record in its proper perspective. Mr. Deb in support of his contention drawn my attention to the both oral and documentary evidence that were relied upon by the parties. He also submitted that the evidence on record clearly points out to the fact that the defendants and their predecessor took advantage of the situation and played fraud in execution and registration of Ext C the partition deed. Mr. Deb further submitted that despite the execution of Ext C the joint family remained joint without disintegration and maintained the character of a joint family. The learned Court below fell into grave error in overlooking the case of the plaintiff and the learned trial Court on the basis of the evidence on record ought not have rejected the claim of the partition of the appellant, submitted Mr. Deb. 7. Mr. M. Kar Bhowmik, the learned counsel supplementing the argument of Mr. Deb, submitted that there was a gross violation of the mandate of law within the time specified in Order XX Rule 1 of the CPC. Deb. 7. Mr. M. Kar Bhowmik, the learned counsel supplementing the argument of Mr. Deb, submitted that there was a gross violation of the mandate of law within the time specified in Order XX Rule 1 of the CPC. He further submitted that a proviso was added by way of amendment of Proviso 1 to Rule 1 of Order XX CPC along with other provisions which were added to the Code by way of amendment of the CPC (Amendment) Act, 1976. It has its definite objects and means. In view of the long delay, naturally, errors crept-in in the decision making process which affected the ultimate decision of the learned trial Court. 8. Mr. B. Das, the learned senior counsel appearing on behalf of the respondents and supporting the judgment of the Court below, submitted that since the plaintiff failed to establish the case, the learned trial Court rightly dismissed the suit on evaluation of the factual matrix. Mr. Das, in support of his contention, drew my attention to the relevant portions of the pleadings as well as the evidence on record. 9. The learned trial Court considered the documentary as well as the oral evidence and reached its findings on evaluation of the facts. The learned Court on considering the evidence on record, found that though there was a family Salish for amicable family settlement on 20.10.80, the same was not acted upon by the parties. The family arrangement entered into the above Salish, was modified and the parties accepted the same accordingly. The learned trial Court reached its decision on consideration of the Ext 2 (also Ext A) and Ext 3. On consideration of the evidence of the parties as well as Ext C, the learned trial Court held that the Ext G scheduled land of the plaint was excluded by the Ext C. The learned trial Court on consideration of the evidence on record adduced by the parties and in view of the fact that the predecessor of the defendants shouldered the responsibility of the family for repayment of the family debts, income tax, etc, did not find anything extraordinary or inequitable for allotting a bigger slice of the property in favour of the defendants. The learned trial Court took note of the fact that the plaintiff was given Rs.5,000 (Rs five thousand) only in cash by way of adjustment with the predecessor of the defendants for construction of the kitchen and the latrine, vide Ext 2. The learned Court accepted the report of the Survey Commissioner and Ext Cl series. Considering the totality of the evidence as well as the Survey Commissioner's report, Exts 2 and 3, the Court found that both the parties acted as per their family arrangement and were possessing the properties, both movable and immovable, in terms of the family arrangement. The learned trial Court refused to accept Exts 4, 5 and 6 as those were prepared during the pendency of the suit without the leave of the Court. The learned Court also rejected Ext E, the sketch map, which did not contain the signature of the person who prepared the same. To reach that conclusion, the learned trial Court also considered the evidence of PW 2 who stated that he did not prepare the said sketch map (Ext 2). The property at Nuabadi was found to be non-existent; at any rate the learned trial Court found that the above land was under the possession of neither of the parties. The learned Court also rejected the plea of the parties that the properties purchased in the name of the predecessor of the defendants was a fact joint properties, in the face of the evidence on record. 10. The findings reached by the leaned trial Court find support from the evidence on record. The learned trial Court which tried the suit, arrived at the above conclusions of facts which cannot be termed as perverse or otherwise a illegal. He who pleads is to prove his case by the test of pre-ponderance of probability. The findings arrived at by the learned trial Court, therefore, cannot be held to be unfounded or otherwise unlawful. 11. The learned trial Court turned down the plea of the plaintiff-appellant to the effect that the Ext C was vitiated by fraud played upon him by deceased Monoranjan Paul and on his death, by the defendants. The learned trial Court while deciding the issue No.VI, rejected the said plea on consideration of the evidence on record as well as the averments made in the pleadings of the parties. The learned trial Court while deciding the issue No.VI, rejected the said plea on consideration of the evidence on record as well as the averments made in the pleadings of the parties. The learned trial Court, referring to the plaint, held that there was no foundation of plea of 'fraud' raised by the plaintiff in his plaint. Order VI of the CPC provides for the rule of pleadings in general. The object of pleadings is to narrow down the controversy between the parties to the real issues focussing the attention on the subject matter of dispute. The pleadings are made to make aware the parties to the suit as to the real issues requiring adjudication and to enable the parties to lead their respective evidence as may be appropriate to the issue. The guiding principles of the system of pleading can be read in Order VI Rule 2 CPC enjoining that pleadings shall contain only the statements of facts in a precise manner which should contain and contain only the materials facts relied upon for the claim or defence. Pleading in civil cases has its own importance giving each side a prior notice of the case of the other that may be met, to enable the Courts to determine the real issues at controversy between the parties and to prevent departure from the professed course of litigation. Under the civil law, no amount of evidence is to be looked into on a plea which was never raised. There can be no departure from the pleadings without a proper amendment. No evidence of whatsoever manner can be considered in the absence of a pleading. The rule is based on the principle of justice and fair play so that no party is prejudiced by the change of the case introduced. Rule 4 of Order VI CPC insists that in all cases in which the party pleading relied upon on any misrepresentation, fraud, breach of the trust, wilful default or undue influence and in all other cases in which particulars may be necessary beyond such as are exemplified in Appendix A mentioned in Rule 3 of Order VI CPC, particulars are required to be stated in the pleadings. Fraud, breach of the trust, wilful default or undue influence are objective facts known to the party aggrieved and the rule of pleading insists for giving such particulars. Fraud, breach of the trust, wilful default or undue influence are objective facts known to the party aggrieved and the rule of pleading insists for giving such particulars. Where propriety of the conduct of a party is alleged, the rule insists that the particulars are to be furnished by the party making such allegation to enable the other party to meet the case. Rule 4 of Order VI CPC is imperative in nature. In the words of Bose, J."... if there is one rule which is better established than any other, it is that in case of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an'averment of fraud of which any Court ought to take notice, however strong the language in which they are couched may be, and the same applies to undue influence and coercion.” Bishnudeo Narain & another vs. Seogeni Rai & others, reported AIR 1951SC 280. In this context, it would be pertinent to look to the relevant pleadings raised by the plaintiff which read as follows : “That a deed of partition between the plaintiff and the defendants was executed on 2.11.80 by exercising fraud upon plaintiffs and it was subsequently registered on13.7.81 in respect of some properties and the remaining properties were left in joint. That the plaintiff was tempted by the fraud practised by the defendants in executing the said fraudulent deed of partition. That defendant No.6 Shri Ranjit Pal and defendant No. 10 Srimati Mirrani Pal were not parties in the said fraudulent deed of partition. Hence there was no effective partition between all the co-sharers with respect to the joint properties. That the alleged deed of partition is not binding on the co-sharers as all the co-sharers have not joined in it and as also the entire properties have not been brought in hotchpotch in that deed. The property purchased by late Gobinda Ch Paul, the father of plaintiff and since deceased Monoranjan Paul, the predecessor-in-interest of the present defendants by way of registered sale deed dated 1.11.54 AD has not been brought in the alleged partition deed. The property purchased by late Gobinda Ch Paul, the father of plaintiff and since deceased Monoranjan Paul, the predecessor-in-interest of the present defendants by way of registered sale deed dated 1.11.54 AD has not been brought in the alleged partition deed. The partition as alleged in the said Partition Deed does not include the huts, structures, laths and other ejmali movable properties and there have been no partition by metes and bound and according to 50% share of each brother, the plaintiff and since deceased Monoranjan Paul. This has been fraud in so far as by continued pressure upon the plaintiff through people of his hand. Said Monoranjan Paul and after him the defendants was/were falsely alleging that they had greater efforts behind and contributions to the ejmali properties, there is no basis at all of such allegations and these have been brought in only to deprive the plaintiff of his due share in all ejmali properties both movable and immovable and other assets of two brothers. The plaintiff was under fraud, duress and coercion of the defendants side and they in collusion got signatures of the plaintiff in the alleged partition deed and got everything done through the plaintiff. The plaintiff was put to such offbeat position at the time of execution of alleged partition deed that he could not refuse a salient fact that the predecessor of defendants mortgaged the property of item I of the said schedule of alleged partition deed and he had not liquidated that mortgage debt, the liabilities have still been hanging on the plaintiff, defendants and the said mortgaged property, the home stead of the parties. Hence the said deed is not effective as partition between the parties by metes and bounds.” From the pleadings cited above, it thus appears that the plaintiff except mentioning the word 'fraud' in those paragraphs, did not indicate the nature of the fraud. In these circumstances, rejection of the plea of fraud, raised by the plaintiff, before the learned trial Court cannot be faulted. The learned trial Court also took note of the fact that it was the plaintiff and the plaintiff alone who took the lead role for reaching the family arrangement and more particularly causing the registration of the partition deed. The absence of two of the defendants, viz. The learned trial Court also took note of the fact that it was the plaintiff and the plaintiff alone who took the lead role for reaching the family arrangement and more particularly causing the registration of the partition deed. The absence of two of the defendants, viz. defendant Nos 6 and 10, cannot affect the validity of Ext C. The aforesaid defendants at no point of time challenged the factum of Ext C; on the other hand, the aforesaid two persons were the defendants in the case and supported the claim of the other defendants. The evidence on record in clear terms refers to the family arrangement. The two brothers who acted in unison to a point of time, decided to part with their family business. It is a tale of a family on which the shadows o partition did not linger much. On their own, the two brothers toiled hard and finally rehabilitated the family with their own efforts and then a point reached when they decided for disruption of the joint family. A family partition is not unknown law - more so in Hindu Law. A family arrangement is a process by which the members of the family reach an agreement with a view to preserve the family peace and to avoid all forms of disputes as to the family property. The genera principle of partition of a joint Hindu family differ from the partition as enjoined under section 171 of the Income Tax Act. A partition may be affected either by the aid of the Court through a suit, by the Award of an Arbitrator or by entering into an agreement to severe the joint family status by the parties. A family arrangement is not unknown even to English society as will be evident from the following passage from the Halsbury's Laws of England, 3rd Edn, Vol 17 at page 215-216: "A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour. The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term 'family arrangement' is applied." 12. The principles that the Courts should bear in mind in appreciating the scope of such family arrangement are stated thus : "Family arrangements are governed by principles which are not applicable to dealings between strangers. The Court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most of the interest of families, and has regard to considerations which, in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements." In India also, the Courts bestow weight and importance on a family settlement. Like its counterpart in England, in India also Courts are keen to uphold the family arrangements. Instead of disrupting the scheme "family arrangement are governed by special equity peculiar to themselves and will be enforced if honestly made...." extracted from 'Kerr on Fraud' quoted in Ram Nirunjun Singh vs. Prayag Singh, reported in (1881) ILR 8 Calcutta 138 (142). Similar treatment on the subject is evinced in Basantakumar Basu vs. Ram Shankar Ray, reported in ILR 59 Calcutta 859 (884-885) =AIR 1932 Calcutta 600 (612); Thakur Umrao Singh vs. Thakur Lachman Singh, reported in (1911) 38 Ind App 104 (PC); M. Ramayya vs. U. Lakshmayya, reported in AIR 1942 PC 54; Sahu Madho Das vs. Mukund Ram, reported in 1955 (2) SCR 22 (42-43) = AIR 1955 SC 481 (490-491); and Maturi Pullaiah & another vs. Maturi Narasimham & others, reported in AIR 1966 SC 1836 (1839-1841). 13. I have given my anxious consideration on the matter and on over all consideration of the matter in its entire scenario, it can be unerringly inferred that the parties entered into an agreement for attaining harmony and family peace and to avoid future disputes which may or are likely to bring ruination of the family. 13. I have given my anxious consideration on the matter and on over all consideration of the matter in its entire scenario, it can be unerringly inferred that the parties entered into an agreement for attaining harmony and family peace and to avoid future disputes which may or are likely to bring ruination of the family. In the facts and circumstances of the case in hand, the arrangement entered into by the parties cannot be said to be other than bonafide and unfair and, therefore, there is no error in the finding of the learned trial Judge in deciding the issues Nos 5 and 6. 14. At the instance of Mr. BB Deb, the learned senior counsel appearing on behalf of the appellants, I have gone through the evidence on record and on considering the same, existence of the Ext G scheduled property could not be traced. Similarly, the findings of the learned frial Court that there is no ejmali property as on the date of the suit requiring further petition, cannot be held to the unjustified. The plaintiff failed to show and establish any other joint family property that required partition. 15. Last but not the least, I now propose to deal with the contention raised by Mr. Kar Bhowmik, the learned counsel for the appellants, pertaining to Order XX Rule 1 of the Code of Civil Procedure. Unreasonable delay between hearing of the argument and delivery of judgment is not countenanced in the justice delivery system. Delay in announcement of the judgment may give rise to uncalled for ripples ruffling the legal echo system. To avoid such situations, the Parliament in its wisdom has set a time limit for pronouncement of judgments under Order XX Rule ICPC which is meant to be abided. Order XX Rule ICPC lays down the code of ethics which is to be adhered to in spirit as well as in letters to avoid much sticks. Trust and confidence are the foundation on which the system rests and no room is to be provided for dropping bricks. 16. I have bestowed my utmost consideration on the submission of the learned counsel for the appellants as to the compliance of the norms set-out in Order XX Rule 1 CPC. The view of the Court is indicated in the preceding paragraphs in no uncertain terms. 16. I have bestowed my utmost consideration on the submission of the learned counsel for the appellants as to the compliance of the norms set-out in Order XX Rule 1 CPC. The view of the Court is indicated in the preceding paragraphs in no uncertain terms. However, on going through the judgment and order impugned, I could not discern anything more to impute culpability. Facts and circumstances only point to an irregularity which has not affected the merits of the case. Nor has the irregularity prejudicially affected the decision of the case. In view of the findings reached above, the appeal is liable to be dismissed and accordingly, the same is dismissed. However, there shall be no order as to costs.