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2010 DIGILAW 717 (CAL)

Saroj Singh v. Arjendu Pratap Singh Deo

2010-06-29

SANJIB BANERJEE

body2010
JUDGMENT 1. THE plaintiffs are the granddaughters of Narsingh Pratap Singh Deo. THE first defendant is the plaintiffs' father, the second defendant is the plaintiffs' brother and son of the first defendant and the third defendant is the plaintiffs' aunt and sister of the first defendant. Narsing Pratap Singh Deo died in 1985 and was survived by his widow Jatan Kumari Devi, the first defendant son and the second defendant daughter. Narsingh Pratap Singh Deo's widow died in 1995. 2. THE plaintiffs claim that Narsingh Pratap Singh Deo's estate has not been divided and consequent upon the 2005 amendment to the Hindu Succession Act, since the family is governed by the Mitakshara School of Hindu Law, the plaintiffs have equal interest in the ancestral property. GA No. 2670 of 2009 is plaintiffs' application in this partition suit seeking an injunction restraining the defendants from dealing with or disposing of the joint properties. GA No. 2982 of 2009 is the joint application by the first and second defendants seeking vacating of the order of status quo that was made on the plaintiffs' application. GA No. 3130 of 2009 is the plaintiffs' application for amendment of the plaint which has now been abandoned. GA No. 2154 of 2010, which does not appear in the list, is the first defendant's application which has been filed today and taken on record by consent of the parties where the first defendant father of the plaintiffs claims that he did not intend to side with the second defendant son but was coerced by the son to support him. 3. IT is second defendant son's case that there is a partition decree of 1990 that divided the estate of the Narsingh Pratap Singh Deo between widow Jatan Kumari, son Arjendu and daughter Jogmaya. IT is the further case of the second defendant that by a registered deed of gift executed in the year 2008 the entirety of the Gokhale Road property (all of Schedule - A to the plaint) has been transferred by the first defendant in favour of the second defendant. 4. THE plaintiffs say that they were unaware of the partition decree and say that, in any event, since adequate stamp duty has not been paid on the partition decree, such partition decree cannot be looked into. To this, the second defendant has a simple answer. 4. THE plaintiffs say that they were unaware of the partition decree and say that, in any event, since adequate stamp duty has not been paid on the partition decree, such partition decree cannot be looked into. To this, the second defendant has a simple answer. THE second defendant says that the relevant amendment was introduced in West Bengal in the year 1994 which required partition decrees recording concluded partitions to be stamped prospectively. There is some argument possible and it does not require a conclusive assessment to be made at the interlocutory stage as to whether by virtue of the partition decree not being duly stamped, the recording of a previous partition therein has to be altogether disregarded. This is particularly so since neither the first defendant nor the third defendant has denied the factum of the partition decree. The second defendant says that since the first defendant is still alive it would be presumptuous on the part of the plaintiffs to claim any right to the ancestral property notwithstanding the family being governed by the Mitakshara School of Hindu Law. According to the second defendant, upon the partition decree coming into effect, it was open to the first defendant to deal with the properties that came to him under the partition decree and the first defendant has dealt with the Gokhale Road property by the registered deed executed in the year 2008. The second defendant says that notwithstanding the first defendant's present stand that the affidavit stand Of the first defendant earlier in the present proceedings was at the behest of the second defendant and notwithstanding the most recent application of the first defendant to resile from, his earlier affidavit stand, the registered deed of gift cannot be wished away and, as of date, there is no suit seeking cancellation of such deed. 5. THE plaintiffs have relied on a hand-written letter of the first defendant issued to the plaintiffs apparently on May 13, 2008. THE plaintiffs rely on such letter to suggest that the first defendant may not have executed the deed of gift of his own volition. THE plaintiffs also wish to rely on such letter in its reference to the Gokhale Road property as being part of the ancestral properties. THE plaintiffs rely on such letter to suggest that the first defendant may not have executed the deed of gift of his own volition. THE plaintiffs also wish to rely on such letter in its reference to the Gokhale Road property as being part of the ancestral properties. THE plaintiffs suggest that the last reference in such letter to the Gokhale Road property being part of the ancestral property virtually amounted to the first defendant disregarding the partition decree and treating the Gokhale Road property and other properties as part of the ancestral properties. THE plaintiffs say that the doctrine of blending could be invoked by the plaintiffs notwithstanding the partition decree of 1990, of which they were not aware prior to the institution of the suit. 6. THE second defendant submits that for the moment the second defendant wants the order of status quo whatever may be its implication - to be lifted in respect of the Gokhale Road property. According to the second defendant, since there is a partition decree of 1990. and the execution of the deed of gift relating thereto is implicit in the first defendant's letter of May 30,2008, the Gokhale Road property cannot now be said to be part of the family hotchpotch; whether or not the doctrine of blending is available to these plaintiffs. There is sufficient justification in what the second defendant says. Since the second defendant's prayer for modifying the subsisting order is limited to the Gokhale Road property and since it is evident that the Gokhale Road property was gifted by a registered document in favour of the second defendant by the first defendant, the order of status quo in respect of the Gokhale Road property is vacated. 7. THERE will, however, be an order of injunction in respect of the properties referred to in Schedule B and C to the plaintiffs' application being GA No. 2570 of 2009 restraining the parties from dealing with or disposing of or encumbering or alienating the same in any manner without previous leave of Court. 8. GA No. 2670 of 2009 and GA No. 2986 of 2009 are disposed of. The question of the plaintiffs' rights relating to the other properties has not been gone into, particularly since none of the parties wants the order relating thereto to be vacated. 8. GA No. 2670 of 2009 and GA No. 2986 of 2009 are disposed of. The question of the plaintiffs' rights relating to the other properties has not been gone into, particularly since none of the parties wants the order relating thereto to be vacated. It will be open to the plaintiffs to urge that the plaintiffs are entitled to a share in the properties described in Schedule B and C to the plaint and thereupon seek accounts in respect of such properties. 9. GA No. 3130 of 2009 has been abandoned by the plaintiffs and is dismissed as not pressed. 10. GA No. 2154 of 2010 is disposed of without any order since even if the first defendant's case is to be believed, it does not detract from the position that the second defendant is, prima facie, entitled to the Gokhale Road property on the strength of the partition decree of 1990 and the deed of gift which the first defendant admittedly executed in favour of the second defendant in the year 2008. The allegations contained in GA No. 2154 of 2010 should not be deemed to have been admitted by the second defendant. 11. THERE will be no order as to costs. 12. URGENT certified photocopies of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.