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2008 DIGILAW 347 (CAL)

Chhaya Devi v. Kalyani Chattopadhyay

2008-03-31

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
Judgment : BHASKAR BHATTACHARYA, J. (1). THIS first appeal is at the instance of the plaintiffs in a suit for partition and is directed against the judgment and decree dated 25th February, 1999 passed by the Civil Judge, (Senior Division), 3rd Court, Alipore, in Title Suit No. 9 of 1991 thereby dismissing a suit for partition filed by the appellants on the ground that all the properties left by the predecessor of the parties had not been brought into the hotchpotch of the suit and that the appellant no. 1 has no exclusive title in the property mentioned in the Schedule g of the plaint. (2). THE following facts are not in dispute:- The properties mentioned in the schedule of the plaint was recorded in the name of Smt. Kamala Devi, the mother of the original parties to the proceedings. According to the plaint case, the father of the parties, namely, Prabhakar Chattopadhyay, purchased the properties in the Benam of their mother and the said father transferred different portions of the property by various deeds of gift to the parties in suit. The first of such deed was executed on 11th August, 1961 in favour of Amal Kumar Chattopadhyay, one of his sons. On the selfsame day, by another deed, the said Prabhakar Chattopadhyay gifted a different portion of the suit property in favour of the plaintiff no. 1, his only daughter, conferring life estate therein. All the six different deeds were executed in favour of his different children at various points of time. The mother of the parties predeceased their father and the suit was filed after the death of their father. (3). THE plaintiffs prayed for the following relief in the suit:" (a) for declaration of plaintiffs no. 1s title (life interest) in respect of schedule "c" property and absolute title in respect of "g" schedule property particularly described in the schedule below; (b) confirmation of possession in "c" schedule property; (c) ejectment of the defendant No. 1 and khas possession of "g" schedule property and joint possession of Hall; (d) tentatively against the defendant no. 1 Rs. 5000/-towards mesne profits and damages and further recurring damages as may be ascertained by the Ld. Court on enquiry under Order 20 Rule 12 C. P. Code and Rs. 1 Rs. 5000/-towards mesne profits and damages and further recurring damages as may be ascertained by the Ld. Court on enquiry under Order 20 Rule 12 C. P. Code and Rs. 5/-tentatively for the present; ALTERNATIVELY (a) a preliminary decree of Partition of the Schedule "a" property declaring the 2/5th share of the plaintiff therein; (b) final decree for partition in terms of the report of the Commissioner for partition to be engaged in the event of failure on the part of the defendants to make amicable partition in terms of the preliminary decree; (c) Injunction; (d) Receiver; (e) Costs; (f) any other relief or reliefs, the plaintiff is entitled to in law and equity. " the suit was contested by the defendants by filing different written statements and some of the defendants supported the claim of the plaintiffs that the father was the real owner and the mother was a Benamder while the other defendants asserted that their mother was the real owner of the property. In the written statement filed by some of the defendants, it was alleged that all the properties recorded in the name of their mother were not brought in the hotchpotch. (4). THE learned Trial Judge, on consideration of the evidence on record, came to the conclusion that the mother was the real owner of the property and thus, on the death of the mother, the five children and her husband inherited the property, each having one-sixth share. Subsequently, the father of the parties having died, according to the learned Trial Judge, his share devolved upon the five children. However, the learned Trial Judge refused to grant even the relief of partition on the ground that it was admitted that there are some other properties of the mother of the parties, which were not included in the hotchpotch. The suit, thus, was dismissed on that ground. (5). BEING dissatisfied, the plaintiffs have come up with the present appeal. Mr Roychowdhury, the learned senior advocate appearing on behalf of the appellants strenuously contended before us that the learned Trial Judge erred in law in dismissing the suit on the ground of non-inclusion of all the properties left by the mother. Mr Roychowdhury points out that the defendants, although stated in the written statement that some other properties were left out, could not disclose the actual identity of those properties. Mr Roychowdhury points out that the defendants, although stated in the written statement that some other properties were left out, could not disclose the actual identity of those properties. Mr Roychowdhury, therefore, submits that in the absence of any evidence showing existence of any other specific property not included in the schedule of the plaint, on the basis of a vague assertion of the defendants that some other properties were left out, the suit could not be dismissed. He, therefore, prays for setting aside the judgment and decree passed by the learned Trial Judge. (6). MR Roychowdhury, however, submits that the father of the parties having died after the death of their mother, he also inherited the one-sixth undivided share from her wife. However, it appears from the various deeds executed by him that he described himself as the absolute owner, which, according to Mr Roychowdhury, was wrong. Mr Roychowdhury, however, submits that even if the father of the parties described himself as the sole owner in those deeds of gift, by virtue of those deeds of gift, he, under the law, could convey only to the extent of his one-sixth undivided share. Mr Roychowdhury, therefore, prays for sending the matter back on remand for considering the extent of the share received by the recipients of those gifts, after taking into consideration, the valuation of the undivided one-sixth share in the suit property. (7). MR Chatterjee, the learned senior advocate appearing on behalf of some of the respondents accepted the submission of Mr Roychowdhury that the mother of the parties was the real owner and on her death, the original parties to the proceedings and their father inherited one-sixth undivided share each. Mr. Chatterjee, however, points out that if the subject-matter of the first deed of gift executed in favour of his client by the father is taken into account, it will exceed the value of his one-sixth share and therefore, the other deeds of gift subsequently executed by him conveyed no right, title and interest in the suit property to the beneficiaries of those gifts. (8). (8). AFTER hearing the learned counsel for the parties and after going through the materials on record we find that on the basis of materials on record the leaned Trial Judge rightly came to the conclusion that adequate amount of evidence was not adduced showing that the father of the parties was the real owner and we find no reason to differ from the said finding. If the said finding is accepted, it is apparent that the father of the parties, on the death of the real owner, obtained one-sixth undivided share along with his children and therefore, by those six deeds of gift, he could not convey more than his undivided one-sixth share in the suit property which is a two-storied building on 12 cottahs of land in regent Park. If we check up the schedule of the first deed of gift executed in favour of Amal, it will appear that a specific portion of that house with reference to boundary has been gifted in his favour. Whether the valuation of the said specific portion is more than one-sixth of his share in the said house cannot be ascertained unless we get the picture of the total area of the covered space of the said house. Moreover, an undivided one-sixth co-sharer of a house is incompetent to transfer any specific portion by a deed unless agreed to by all the co-owners. In this case, we have already indicated that the donor declared himself to be the absolute owner although he was not and had a limited undivided share in the property. (9). WE, thus, find substance in the contention of both Mr Roychowdhury and mr Chatterjee, the learned senior counsel for the parties that we should declare one-sixth share of each of the five children in the property with further direction upon the learned Trial Judge to appoint an Engineer Commissioner to decide whether after the execution of the first deed of gift in favour of Amal, having regard to the extent of the property conveyed by the said deed, the father of the parties was in a position to execute any other deed to any person. If it appears on such adjudication, that by the first deed of gift, the valuation of the extent of the property conveyed was more than one-sixth of the total valuation of the said building and the land, in that event, the donee of the subsequent deeds would get nothing. In other words, the Engineer Commissioner will assess the valuation of the entire land and building and then, after assessing the valuation of the transferred property by the first deed, will ascertain whether the gifted portion exceeds one-sixth of the total value. If it exceeds one-sixth of the total value, it should be presumed that the donee of the first deed obtained the entire one-sixth share of the father and that the beneficiaries under the other deeds received nothing. However, if it appears that the valuation of the property conveyed by the first gift is less than one-sixth of the valuation of the entire property, in that case, the donee by that deed should be presumed to have obtained share to that extent and then, the next deed will be considered in the same way to ascertain the share transferred and the donee would get the balance proportionate share i. e. one-sixth minus the share conveyed by the first deed. Such assessment would continue so long the one-sixth share of the donor is not exhausted. However, by virtue of those deeds, the respective recipients would not have any right over the specific portion mentioned in the deed, as a co-sharer of an undivided property has no right to transfer any specific portion without the consent of the other cosharers. In this case, no such consent by the other co-owners has been proved. If, however, any improvement is made by such donee over the gifted portion with the consent of the other co-sharer, the learned Trial Judge will direct the commissioner to allot that portion to that co-sharer unless such allotment would be found to be unjust, against the principles of natural justice and should not be adjusted even by the payment of owelty money. (10). SINCE, the suit is pending for a long time, we direct the learned Trial Judge to appoint an Engineer Commissioner within two months from the date of communication of this order with specific direction to conclude investigation and submit report within two months from the date of appointment. (10). SINCE, the suit is pending for a long time, we direct the learned Trial Judge to appoint an Engineer Commissioner within two months from the date of communication of this order with specific direction to conclude investigation and submit report within two months from the date of appointment. The learned Trial judge on the basis of report will pass final decision regarding the fate of different deeds executed by the father of the parties. The parties will be entitled to lead further evidence for the purpose of showing improvement, if any, made by any co-sharer with the consent of the others. (11). THE appeal, thus, is allowed. The judgment and decree passed by the learned Trial Judge are set aside to the extent indicated above. In the facts and circumstances, there will be, however, no order as to costs.