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2008 DIGILAW 346 (CAL)

Deba Prasad Roy v. Tandra Roy

2008-03-31

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
Judgment : BHASKAR BHATTACHARYA, J. (1). THIS first appeal is at the instance of a defendant in a suit for partition and is directed against the preliminary decree dated 15th January, 2001 passed by the learned Civil Judge, Senior Division, Durgapur, in Title Suit No. 38 of 1995, thereby holding that the plaintiff had four-fifth share in the property whereas the defendant has one-fifth share therein. (2). BEING dissatisfied, the defendant has come up with the present appeal. There is no dispute that the original plaintiffs, five in number, being the widow and the four daughters of one Baidya Nath Roy, since deceased, filed the aforesaid suit for partition against the only son of the said Baidya Nath Roy claiming five-sixth share in the property. During the pendency of the suit, the plaintiff no. 1, the mother of other parties, died leaving them as her sole heirs and legal representatives and, thus, her share in the property devolved upon the other parties to the proceedings. (3). THE suit was contested by the appellant by filing written statement thereby denying the material allegations made in the plaint. The appellant in his written statement only disputed the share of the plaintiffs in respect of two of the items of the property, namely Dag nos. 1951 and 1998 on the allegation that Late baidya Nath Roy, his father, during his lifetime made a deed of gift of those two properties in favour of the plaintiff no. 1 and the appellant with the stipulation that the plaintiff no. 1 would hold those properties during her lifetime without any right of transfer and on her death, the defendant would become the absolute owner thereof. (4). AFTER the aforesaid defence disclosed by the appellant, the plaintiff nos. 2 to 4, after the death of the plaintiff no. 1, amended the plaint thereby taking the plea that the deed of gift disclosed in the written statement was a fraudulent one and was not acted upon. (5). THE learned Trial Judge on consideration of the materials on record concluded that the deed of gift was not acted upon by the donees and as such, the same did not confer any exclusive right upon the defendant. The learned Trial judge accordingly decreed the suit by declaring the four-fifth share of the surviving plaintiffs and the one-fifth share of the defendant in the entire suit property including those two plots. The learned Trial judge accordingly decreed the suit by declaring the four-fifth share of the surviving plaintiffs and the one-fifth share of the defendant in the entire suit property including those two plots. Being dissatisfied, the defendant, the brother of the surviving plaintiffs, has come up with the present first appeal. (6). PREVIOUSLY when this matter came up for hearing before another Division bench of this Court, an application under Order XLI Rule 27 of the Code of Civil procedure was filed by the appellant for taking into consideration some letters exchanged between the plaintiff no. 1 and the defendant through their lawyers before the initiation of the litigation for the purpose of showing that the deed of gift executed by the father of the appellant was, in fact, accepted by the mother of the parties and, thus, the plea that the deed of gift was fraudulent or was not accepted by the plaintiff no. 1 was not tenable. (7). THE said Division Bench allowed such application and directed the learned Trial Judge to take additional evidence on the point mentioned in the said application. Pursuant to such direction, the learned Trial Judge took further evidence and sent back the additional evidence to this Court. (8). WE, accordingly, have considered this appeal not only based on the original evidence adduced but also have taken into account the additional evidence. (9). MR Banerjee, the learned senior advocate appearing on behalf of the appellant, fervently contended before us that the exchange of letters between the learned advocates for the plaintiff no. 1 and the defendant would show that it was the plaintiff no. 1 who herself asserted that in respect of the property covered by the deed of gift, the other heirs had no right, title and interest. Mr Banerjee submits that the additional evidence taken by the learned Trial Judge will conclusively prove that the deed of gift was accepted by the parties and was actually acted upon. He, therefore, prays for modification of the preliminary decree by excluding the properties covered by the deed of gift with further direction that such property being exclusively owned by the appellant should go out of the schedule of the plaint. (10). He, therefore, prays for modification of the preliminary decree by excluding the properties covered by the deed of gift with further direction that such property being exclusively owned by the appellant should go out of the schedule of the plaint. (10). MR Mukherjee, the learned advocate appearing on behalf of the plaintiffs-respondents, on the other hand, has opposed the aforesaid contention advanced by Mr Banerjee and has contended that it will appear from the rent receipts produced by his clients that even after the execution of the alleged deed of gift, the father of the parties went on realising rent from the tenants of the properties. Mr Mukherjee contends that such fact indicated that the deed of gift was not accepted by the mother, as a result, the father continued to remain possession. (11). MR Mukherjee further contends that even the subsequent sale-deed executed by the father of the parties indicates that a part of the properties covered by the deed of gift was sold to a third party. Such fact, according to Mr. Mukherjee, is an indication that the deed of gift was not acted upon. Mr mukherjee submits that even the original deed of gift was not produced by the defendant. He, therefore, prays for affirming the judgment and decree passed by the learned Trial Judge. (12). THEREFORE, the only question that arises for determination in this appeal is whether the learned Trial Judge was justified in declaring the share of the parties in respect of two items over which a deed of gift was executed by the father of the present parties. (13). AFTER hearing the learned counsel for the parties and after going through the materials on record we find that originally the widow and four daughters of late Baidya Nath Roy filed the suit for partition against the only son of Late baidya Nath Roy claiming five-sixth share. The defendant in his written statement disclosed that his father executed a deed of gift in respect of those two items in favour of the plaintiff no. 1 for life without any right of alienation and thereafter, absolutely in his favour. (14). SUCH written statement was filed on 12th August, 1996. After the filing of the said written statement different dates, namely, 27th August, 1996, 12th september, 1996, 10th October, 1996, 9th December, 1996 and 22nd January, 1997 were fixed. 1 for life without any right of alienation and thereafter, absolutely in his favour. (14). SUCH written statement was filed on 12th August, 1996. After the filing of the said written statement different dates, namely, 27th August, 1996, 12th september, 1996, 10th October, 1996, 9th December, 1996 and 22nd January, 1997 were fixed. On 22nd January 1997, the original plaintiffs came up with an application for amendment of the plaint for the purpose of rectification of Dag number of a particular plot and such application was allowed. In the said application for amendment of plaint, however, the original plaintiffs did not utter a single word about the existence of the deed of gift in respect of the other two plots as asserted by the defendant. It appears that the plaintiff no. 1 died on 18th march, 1997 and thereafter, on 25th April, 1997, the four sisters, the surviving plaintiffs, came up with the application for amendment of plaint alleging that the deed of gift executed in favour of the plaintiff no. 1 and the defendant was a fraudulent deed and was not acted upon. The exact nature of fraud or the name of the persons who practiced the fraud, however, was not disclosed. If one alleges fraud in the matter of execution of the deed of gift, the allegation must necessarily be against the recipient of the deed of gift and in this case, it was the plaintiff no. 1, who was first given the life estate and the recital of the said deed show that the husband of the plaintiff no. 1 was primarily anxious to protect her interest in case of his death. For that reason, in spite of knowledge of the deed of gift, so long she was alive, no amendment of plaint was filed by the original plaintiffs describing the deed of gift as a fraudulent one although they decided to amend the plaint for the purpose of correcting the mistake in the plot number of a different item of the properties. (15). WE have gone through the additional evidence adduced in this proceeding. It appears from the registered letter sent by the learned advocate for the plaintiff no. 1 to the learned advocate for the defendant that existence of the deed of gift was admitted and she asserted her title over those plots by virtue of the deed of gift. (16). (15). WE have gone through the additional evidence adduced in this proceeding. It appears from the registered letter sent by the learned advocate for the plaintiff no. 1 to the learned advocate for the defendant that existence of the deed of gift was admitted and she asserted her title over those plots by virtue of the deed of gift. (16). ALTHOUGH, Mr Mukherjee tried to impress upon us that as even after the execution of the deed of gift the father of the parties went on realising rent, such fact indicated that the deed of gift was not accepted, we are not convinced by such submission in the facts of the present case. In the deed of gift, it is specifically stated that the donees agreed to accept the deed of gift. It appears that in Indian society, there is nothing unnatural for a husband to look after the property of his wife and, thus, even after the execution of the deed of gift, if the donor went on realising rent from the tenants, such fact indicated that he was realising rent for the benefit of his wife. (17). IT is true that in the original evidence given by the appellant, he could not say, in details, about the execution of the deed of gift but the fact remains that such deed of gift was accepted by his mother and the original was in her custody. As it appears from the certified copy of the deed of gift, so long the plaintiff no. 1 was alive, the defendant had nothing to do in respect of such property and, therefore, he could not produce the deed of gift which was lying with the plaintiff no. 1. We have already pointed out that during the lifetime of the plaintiff no. 1, no application for amendment of plaint was filed challenging the deed as fraudulent one and such amendment was sought only after the death of the plaintiff no. 1. The registered letter written on behalf of the defendant by his learned Advocate to the plaintiff no. 1 and the answer given on her behalf by her learned Advocate leave no doubt that the deed of gift was accepted by the plaintiff no. 1. The subsequent sale-deed executed by the father of the parties in favour of one Lila adhikary shows that four kathas eight chhitaks of land out of the plot no. 1 and the answer given on her behalf by her learned Advocate leave no doubt that the deed of gift was accepted by the plaintiff no. 1. The subsequent sale-deed executed by the father of the parties in favour of one Lila adhikary shows that four kathas eight chhitaks of land out of the plot no. 1998 was sold after the execution of the deed of gift. By relying upon such deed, Mr mukherjee contended that if the father of the parties had already gifted 54 decimals of land out of the plot no. 1998 which was the balance land owned by the donor left in the said plot, he could not over again sold some portion of the said plot to a third party. According to Mr Mukherjee, the execution of the sale deed indicates that the previous deed of gift was not accepted by the mother of the parties. (18). MR. Banerjee, the learned senior advocate appearing on behalf of the appellant on the other hand contends that at the time of execution of the deed of gift in favour of the mother of the parties, the father had land in excess of 54 decimals in the plot no. 1998 and such plot was sold to Lila Adhikary as would appear from the plan annexed to the deed. In other words, according to Mr. Banerjee, the property mentioned in the deed of gift is different from the one indicated in the Ext.- E. (19). IT appears that the husband of the said Lila Adhikary deposed as a witness for the appellant and according to him, the land covered by Ext.-E was not within the land covered by the deed of gift. From the materials on record, we find that the total area of the land in the said plot no. 1998 is 1. 32 acre and out of the said plot, 54 decimals were given by the deed of gift while 7. 5 decimals were transferred by the Ext.- E. In our opinion, if it is assumed for the sake of argument that the father of the parties had really 54 decimals left in the said plot at the time of execution of the deed of gift, by subsequent deed no further land of that plot could be transferred. 5 decimals were transferred by the Ext.- E. In our opinion, if it is assumed for the sake of argument that the father of the parties had really 54 decimals left in the said plot at the time of execution of the deed of gift, by subsequent deed no further land of that plot could be transferred. However, it is even the assertion of the husband of lila Adhikary that Baidyanath had excess land over the said 54 decimals gifted to the mother of the parties and the appellant and he never claimed any right over the 54 decimals of land covered under the deed of gift. Thus, in these proceedings, we refrain from going into the question of title of Lila Adhikary in respect of her purchased portion as no such dispute as been raised even by the said subsequent purchaser and her husband has supported the appellant and at the same time, the appellant has also not asserted his right over the property covered by Ext.-E. Moreover, if a person, after transferring a property by execution of a valid deed, over again transfers the selfsame property to a third party, for such subsequent deed, the title conveyed by the earlier deed is in no way affected. (20). WE have already pointed out that the exchange of letters between the learned advocate for the appellant and that of the mother of the parties conclusively prove that the deed of gift was very much accepted by the mother of the parties and the said mother not having disputed the validity of the said gift during her lifetime in spite of specific plea taken by the appellant, the respondents, her successors are estopped from contending that her mother by practicing fraud obtained that gift from their father when the mother through her lawyer claimed absolute title over that property before the institution of the suit in question. (21). WE, therefore, modify the judgment and decree passed by the learned trial Judge to this extent that the property covered by Ext.-C is now exclusively owned by the appellant after the death of his mother who had life interest therein. The decree in respect of the other properties than plot nos. 1998 and 1951 is affirmed. The appeal is allowed to the extent indicated above. In the facts and circumstances, there will be, however, no order as to costs.