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2011 DIGILAW 401 (JHR)

Priti Ranjan Mukherjee v. Nalini Ranjan Mukhejee

2011-05-04

POONAM SRIVASTAV

body2011
JUDGMENT Poonam Srivastav, J.-This is defendant's first appeal arising out of the judgment dated 21st February, 2007 and decree dated 21st February, 2007 passed by Sub-Judge-VI, Ranchi in Partition Suit No. 93 of 2002 (Nalini Ranjan Mukherjee vs. Priti Ranjan Mukherjee & Another). 2. The suit preferred was a partition suit against defendant Priti Ranjan Mukherjee alone. Subsequently, defendant no. 2 Sukh Ranjan Mukherjee was also arrayed as defendant no. 2 during the course of the proceedings. The parties to the suit are real brothers. The reliefs sought was for partition of the suit property and a further request for putting him in possession of his share. The dispute is in respect of plot no. 1361 of holding no. 498 at Bardaman Compound, P.S.-Lalpur, District-Ranchi. Plaintiff claimed to have purchased the said property by means of registered sale deed from one Kali Das Chatterjee on 22nd May, 1965. The construction over the said property is claimed by the plaintiff to be made jointly by the plaintiff and defendant. The plaintiff further stated in the plaint that there was another living brother, namely, Priya Ranjan Mukherjee at the time of construction of the house, who expired at Kolkatta on 11th October, 1983. He has left this place permanently for Kolkatta and after his death his family members continued to reside there. The plaintiff claims that though he has share in the house, but the defendant has taken over possession of the entire house and did not allow the plaintiff to stay alongwith him and, therefore, this necessitated institution of the partition suit. 3. By filing his written statement appellant-defendant disputed the plaintiff's case. Title and possession over the suit property as claimed by the plaintiff, was disputed and consequently the defendant pleaded that the property is not liable to be partitioned as the plaintiff is not the co-sharer. Sukh Ranjan Mukherjee, who was arrayed as defendant no. 2 in course of proceeding, had paid the entire consideration money for purchase of the land and the house was constructed from the income of defendant no. 1. The plaintiff has no share in the property and, therefore, he has no right to seek partition. 4. A separate written statement was filed by defendant no. 2 Sukh Ranjan Mukherjee who supported the case of the defendant no. 1. 5. Documentary as well as oral evidence was led by the respective parties. 6. 1. The plaintiff has no share in the property and, therefore, he has no right to seek partition. 4. A separate written statement was filed by defendant no. 2 Sukh Ranjan Mukherjee who supported the case of the defendant no. 1. 5. Documentary as well as oral evidence was led by the respective parties. 6. The Court below framed as many as 7 issues, which are enumerated here-in-below: 1. Is the suit as framed maintainable? 2. Has the plaintiff got valid cause of action? 3. Is there unity of title and possession between the plaintiff and defendant for the suit property? 4. Is the suit bad for non-joinder of parties? 5. Whether construction of building over the suit land has been made out of the funds provided by the defendant as claimed by him or from the income of other brother of the parties and equal contribution were made by the plaintiff? 6. Is the plaintiff. entitled to a decree for partition as claimed? 7. To what other relief or reliefs, if any the plaintiff entitled? 7. Trial Court came to the conclusion that the plaintiff failed to establish his monetary contribution towards purchase of the land and construction of the house. The finding of the Court below was that defendant no. 2 Sukh Ranjan Mukherjee financed the purchased of the land and money for construction was contributed by defendant no. 1. The Court below decreed the suit on the basis of theory of 'doctrine of blending'. The Court below held that the property was purchased and construction was made from common stock of joint family and, therefore, the plaintiff being co-sharer his share is liable to be recognized under Hindu Laws. The property was partitioned to the extent of 1/3rd share in favour of the plaintiff and 1/3rd for the defendant nos. 1 and 2 and, accordingly, the decree was passed. 8. Sri Manjul Prasad, Sr. Advocate assisted by Mr. Arbind and Manoj Kumar Advocates appearing on behalf of the defendant-appellant, Mr. Atanu Banerjee appearing on behalf of the respondent no. 1/ plaintiff and Sri Shashank Shekhar appearing on behalf of the respondent no. 2 have advanced their arguments. 9. On a close scrutiny of the arguments and also oral and documentary evidence, following points for determination emerges in the instant first appeal. 1. Atanu Banerjee appearing on behalf of the respondent no. 1/ plaintiff and Sri Shashank Shekhar appearing on behalf of the respondent no. 2 have advanced their arguments. 9. On a close scrutiny of the arguments and also oral and documentary evidence, following points for determination emerges in the instant first appeal. 1. Whether in absence of any pleadings regarding existence of ancestral property/HUF, the doctrine of blending could be made applicable, since there were 6 brothers and 4 sisters and the suit could not be decreed for 1/3r only share of the respective parties to the suit? 2. Whether the Court below carved entirely a new case which was beyond the pleadings and in absence of evidence the suit property could not be partitioned? 3. Whether the partition suit was filed claiming ½ share, but the suit is decreed in favour of two defendants and plaintiff to an extent of 1/3rd share without any relief or counter claim having been set up by Sukh Ranjan Mukherjee? 10. Plaintiff has examined himself as P.W. 1, P.W. 2, is Mamta Mukherjee, P.W. 3 is Ranjana Mukherjee and lastly Gita Mukherjee was examined as P.W. 4. All of them have given their testimony in support of the plaintiff's case. 11. Documentary evidence is Ext.-1, Electric meter bill, Ext.-2. is the Photographs, Ext.-3 is the affidavit of defendant no. 2 alongwith written statement and Ext.-4 is the signature on Power of Attorney of D.W. 2 Sukh Ranjan Mukherjee. 12. Defendant examined following witness; Defendant witness No. 1 is Priti Ranjan Mukherjee, Defendant Witness No. 2 is Jharna Moitra and Defendant Witness No. 3 is Raj Kumar Lai. 13. is the Photographs, Ext.-3 is the affidavit of defendant no. 2 alongwith written statement and Ext.-4 is the signature on Power of Attorney of D.W. 2 Sukh Ranjan Mukherjee. 12. Defendant examined following witness; Defendant witness No. 1 is Priti Ranjan Mukherjee, Defendant Witness No. 2 is Jharna Moitra and Defendant Witness No. 3 is Raj Kumar Lai. 13. The documentary evidence in support of his case set up in the written statement is Ext.-A to A/1 are the inland letters, Ext.-B is the letter of Geeta Mukherjee, Ext.-C is the letter of P.R. Mukherjee, Ext.-C/1 is also a letter of P.R. Mukherjee, Ext.-C/3 is a letter of Geeta Mukherjee, Exts.- C/3, C/4 and CIS are the letters of Geeta Mukherjee, Ext.C/6 is the letter of P.R. Mukherjee, Ext.D is a registered sale deed, Ext.-E is the details of money in writing, Ext.-F is the counterfoil, Exts.-G, GIS are the Sank Receipt which have been marked with objection, Exts.-H to H/10 are the Sank letters with objection, Ext.-I to 1/8 are the pass book, Exts.-J and J/1 are the signature on written statement and affidavit and Ext.-J/2 is signature on Power of Attorney. - 14. The case of the plaintiff as set up in his partition suit is that the plaintiff and the defendant have jointly purchased the property from Kalidas Chatterjee, son of late Madho Krishna Chatterjee on 22nd May, 1965 both of them contributed to the purchase of the land and after getting the plan of the house sanctioned the construction was made under joint ownership. The plaintiff further claims that his brother late Priya Ranjan Mukherjee was alive at the time of purchase of land and construction of house and he also contributed monetarily towards construction of the house. Later he expired at Kolkatta and his entire family is now settled there. After the last rites of the deceased brother at Kolkatta he arrived at Ranchi on 13th October, 1983. The plaintiff occupied the house but defendant somehow got hold of all documents pertaining to the house in dispute which were kept in a trunk which belonged to late Priya Ranjan Mukherjee. Thus, the original papers were in custody of defendant no. 1 appellant alone. The plaintiff occupied the house but defendant somehow got hold of all documents pertaining to the house in dispute which were kept in a trunk which belonged to late Priya Ranjan Mukherjee. Thus, the original papers were in custody of defendant no. 1 appellant alone. The plaintiff further claimed in paragraph 14 of the plaint that the construction was jointly made by the plaintiff and his elder brother late Priya Ranjan Mukherjee and also they took assistance from their brother, namely, Shri Gyan Ranjan Mukherjee, since the property belongs jointly to the brothers, therefore, the parties to the suit are entitled to a share in the house. So far other family members of Priya Ranjan Mukherjee, it is averred in the plaint that his wife had left her husband (plaintiff's brother) much before during his lifetime and, therefore, his last rites were performed by the plaintiff alone. It is further stated that all the efforts by the family members as well as his brother, who is permanently settled in U.K., failed for amicable settlement, hence, the suit was instituted. 15. According to the case of the defendant no. 1 unity of title was disputed at the very outset. Also that the suit was barred under Section 34 of the Specific Reliefs Act, 1983. It was further asserted in the written statement that the suit is bad for non-joinder of party, Sukh Ranjan Mukherjee, real brother of the plaintiff, he was the person, who financed the purchase of the land from his exclusive income and it was purchased only for defendant no. 1, who got the house constructed in his name. 16. In view of this objection Sukh Ranjan Mukherjee was arrayed as defendant no. 2 subsequently in the course of proceeding. The objection of both the defendants was that the construction over plot was made by defendant himself. The entire consideration money for purchase of land in the name of defendant alone was made by Sukh Ranjan Mukherjee, who was employed as Mining Engineer and at the relevant time the plaintiff was unemployed and he had no source of income. The objection of both the defendants was that the construction over plot was made by defendant himself. The entire consideration money for purchase of land in the name of defendant alone was made by Sukh Ranjan Mukherjee, who was employed as Mining Engineer and at the relevant time the plaintiff was unemployed and he had no source of income. Defendant No. 1 has alone constructed all the flats from his separate income, who was in service 'as Chartered Accountant at United Kingdom during the period of construction i.e. in the year 1961 onwards and he used to send money from time to time, to his mother Smt. Saila Bala Devi and also to the plaintiff as well as money was sent to his two sisters Geeta Mukherjee and Gouri Mukherjee. The construction were got completed by Priya Ranjan Mukherjee (since deceased) and therefore the claim of the plaintiff is absolutely frivolous. 17. A perusal of the judgment of the Court below on issue nos. 3 and 5, which were decided together relating to the question whether there is any unity of title and possession over property of the plaintiff and defendant, as well as whether plaintiff and defendant both have contributed in the purchase of land and construction of building requires to be examined in this appeal. 18. I have gone through the judgment and perused the record and after a careful consideration I am in agreement with the finding of the Court below that the source of income of the plaintiff is not established. He has not been able to show that he was earning and had substantial income at the relevant time. The plaintiff has given two different versions as his source of income. The first one to the effect that the plaintiff was employed in Madras from the year 1964 to 1966 and the other statement that he was involved in business of milk in the year 1965, there are two contradictory statements. There is no documentary evidence to support the contention of the plaintiff to the effect that he was earning Rs. 450/- per menthe. In view of two contradictory versions the Court below disbelieved the source of income specially in absence of any documentary evidence whatsoever. The plaintiff failed to substantiate the plaint version that he contributed towards purchase of the land and construction of the house. 19. 450/- per menthe. In view of two contradictory versions the Court below disbelieved the source of income specially in absence of any documentary evidence whatsoever. The plaintiff failed to substantiate the plaint version that he contributed towards purchase of the land and construction of the house. 19. I am also of the view that the plaintiff has completely failed to establish any source of income at the time of execution of sale deed. Defendant No. 1 has unequivocally stated that it was defendant no. 2 Sukh Ranjan Mukherjee, who contributed solely towards purchase of land in favour of defendant no. 1 and construction was got made from earning of defendant no. 1, who worked as a Chartered Accountant in United Kingdom. Several Bank receipts as well as the letters and also oral evidence of defendant no. 1 substantiated his claim. Moreover it is the plaintiff who was liable to discharge burden of proof that he had got independent earning which was utilized in construction of the house. The trial Court has completely disbelieved the claim of the plaintiff and held that there is not an iota of evidence to establish any income of the plaintiff whatsoever and any investment towards the purchase of land and construction of house in question at the relevant time. The only evidence given by him is an oral testimony. Since he has completely failed to establish that he had any independent income at the relevant time is sufficient to disprove the plaintiff's case regarding his contribution towards purchase of land and construction of the house. 20. The Court below has, however, decreed the suit on the ground of an alternative argument that the plaintiff acquired title over the property by applying "doctrine of blending". The property was purchased from a common stock and, therefore, the Court proceeded to examine the theory of blending for purchase and construction of the property from the common stock of joint family and finally arrived at a conclusion that the plaintiff became a co-sharer as a member of the joint Hindu family property. 21. I am not in agreement with the finding and conclusion of the trial Court on the basis of theory of blending, for the reasons; (i) this is not the case of the plaintiff that the property in question was purchased from a joint stock or income or that it was a joint Hindu family. 21. I am not in agreement with the finding and conclusion of the trial Court on the basis of theory of blending, for the reasons; (i) this is not the case of the plaintiff that the property in question was purchased from a joint stock or income or that it was a joint Hindu family. The question of blending would arise only if plaintiff could have proved or for that matter even asserted that family was a joint family and there was any intention of the purchaser of the property to blend it with the common stock coupled with the fact that the property was allowed to be held jointly in favour of the plaintiff. I do not agree with the conclusion of the Court below regarding application of doctrine of blending. This no body's case. The plaintiff has not come up with the case that property was from a joint stock or there was any kind of jointness in the family. On the contrary the assertion made in the oral testimony of the plaintiff witnesses do not support this theory. 22. The Court below has completely erred in law while recording a finding beyond the pleadings. Apex Court held in the case of Ram Sarup Gupta vs. Bishun Narain Inter College and Others, AIR 1987 Supreme Court 1242 that it is a settled principle of law that no party should be permitted to travel beyond its pleading and that all the necessary material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet and thereby ensure a fair trial. Party should state the essential material facts so that other party may not be taken by surprise. No doubt pleadings should receive a liberal construction and endeavour should be made to ensure that the ends of justice is not defeated merely on the technical ground. In the instant case it was nowhere pleaded that the land in question was purchased from the joint family nucleus or from certain income which came through source which was joint and could thereby conclude that the source or nucleus .which led to the purchase of land or construction of the house was joint. The specific case is that the property was purchased by Sukh Ranjan Mukherjee defendant no. The specific case is that the property was purchased by Sukh Ranjan Mukherjee defendant no. 2, and the house was constructed by the plaintiff and defendant. The Court has recorded a specific finding after assessment of the oral as well as documentary evidence adduced by the respective parties that the plaintiff has completely failed to establish any source of income at the time of execution of the sale deed. He has expressed his complete ignorance regarding any deed of agreement or sale consideration paid. He has altogether failed to establish that he has any source of income and since there is no pleading regarding any other source of income save defendant no. 2, who contributed towards the purchase of land. The finding recorded by the Court below that the consideration money for the sale deed was exclusively given by Sukh Ranjan Mukherjee, defendant no. 2 and not the plaintiff. This finding is inconsonance with the evidence and pleadings. The Court below has decreed the suit on the basis of 'Doctrine of blending' which is neither the case of the plaintiff nor the defendants. The plaintiff has not even made any averment that 6 brothers and 4 sisters were members of H.U.F. and therefore all of them would have equal share. After applying theory of blending the Court below was liable to examine that assuming that the property was purchased by the defendant no. 2, but it was for all the brothers of the H.U.F. By applying 'doctrine of blending'. The Court was liable to record a specific finding. There is no pleading to the effect that there was any documentary evidence or any such act on the part of Sukh Ranjan Mukherjee to throw the land in the common stock with intention to blend. No assertion or finding to the effect that there was any intention to waive his separate right. In fact the suit was instituted by the plaintiff claiming equal share against defendant no. 1 alone. It was only when defendant no. 1 pleaded in his written statement that the land. was purchased by Sukh Ranjan Mukherjee defendant no. 2 and the construction was made on the land by independent and exclusive income of defendant no. 1 while he was staying in United Kingdom and had a separate income,. defendant no. 2 was added as a party. 1 pleaded in his written statement that the land. was purchased by Sukh Ranjan Mukherjee defendant no. 2 and the construction was made on the land by independent and exclusive income of defendant no. 1 while he was staying in United Kingdom and had a separate income,. defendant no. 2 was added as a party. The theory of blending is discussed in the Mulla Hindu Law in Article 227. There are several instances and illustrations elaborated which goes to establish the theory of blending. The precondition for blending is, (i) there should be an existence of coparcener property, (ii) coparcener's separate property could then blend with the coparcener property, and (iii) a definite intention to throw the separate property with common stock voluntarily. The act by which the coparcener throws his separate property into a common stock is an unilateral act and matter of individual volition. 23. I have also examined the evidence. Ext.-A is a letter written to defendant no. 1 by mother, which has been read out by the learned counsel to substantiate that the Court below has completely ignored this piece of evidence, which was very important. An extract of cross-examination of D.W.1 Priti Ranjan Mukherjee has been placed by the learned counsel. I have examined the entire evidence and also Exhibits such as receipts, counterfoils, bank receipts, bank letter in the name of defendant no. 1, pass books and the letters issued by the Bank. Learned counsel has placed various paragraphs of cross-examination in support of his case and also placed reliance on another decision of the Apex Court; in the case of Mallesappa Bandeppa Desai and Another vs. Desai Mallappa @ Mallesappa and Another, AIR 1961 Supreme Court 1268. It was held that where in theory of blending has been expressed. It is illustrated that the conduct on which a plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property. The basis of the doctrine is the existence of co-parcenary and co-parcenary property. 24. Evidently in the instant case there is neither any pleadings nor any evidence that there was any joint family property whatsoever. Therefore, bringing the disputed property into joint family property is out of question and thereby the findings recorded by the trial Court is a far fetched imagination and the case of blending carved out by the Court itself is not justified. Therefore, bringing the disputed property into joint family property is out of question and thereby the findings recorded by the trial Court is a far fetched imagination and the case of blending carved out by the Court itself is not justified. In absence of pleadings or any evidence in support of the theory of blending whatsoever. In the case of Madan Gopal Kanodia vs. Mamraj Maniramand & Others, AIR 1976 Supreme Court 461, the Apex Court emphasized that the Court should examine the pleadings and thereafter the evidence should be assessed on the basis of pleadings. Similar view was expressed by the Apex Court in the case of G. Narayana Raju vs. G. Chamaraju and Others, AIR 1968 Supreme Court 1276, it was held that it is well established that there is no presumption under Hindu Law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business blended with the joint family estate. It is well established that the property which allegedly came in the joint family was voluntqrily thrown by the coparcener into the joint stock with the intention of abandoning all separate claims. 25. In the instant case in absence of any pleadings to the said effect whatsoever the findings recorded by the Court below cannot be accepted and, therefore, I have no hesitation in arriving at a conclusion that the judgment impugned in the instant appeal is a bare imagination of the Court below. The theory of blending is also not acceptable for the reasons; if the plaintiff had any intention that the property in question should be shared equally by all the coparcener of the joint family then all of them should have been arrayed as defendants and equal share was to be allocated to each of them. 26. In the circumstances the suit is liable to fail on the ground of non-joinder of party as well. Even the surviving heirs who were examined as witness did not claim their respective share and this by itself is sufficient to establish that the property was not purchased from a common stock. 26. In the circumstances the suit is liable to fail on the ground of non-joinder of party as well. Even the surviving heirs who were examined as witness did not claim their respective share and this by itself is sufficient to establish that the property was not purchased from a common stock. In fact there is no claim of existence of a joint property and therefore the disputed property could not blend with any nucleus. The case set up by the Court below was admittedly beyond the pleading and in absence of any evidence whatsoever is nothing but a frivolous ground carved out not worth consideration. Thus theory which cannot be accepted cannot be basis for passing a decree. To substantiate the theory of doctrine of blending three necessary ingredients were; pleadings, evidence and intention of the coparcener to throw the property in common stock, whereas in the instant case there is neither any Common stock nor any intention or evidence as well as no pleadings by the plaintiffs. 27. The findings arrived at by the trial Court while decreeing the suit allocating 1/3rd share to the plaintiff as well as two defendants on face of it is absolutely illegal and without deciding the actual controversy, on the contrary the findings are based on an imaginary principle of blending, which was neither pleaded nor any evidence was recorded to support this case. It is a bare imagination of the Court below and cannot be upheld in appeal. The reasons have already been enumerated in the foregoing part of this judgment and I am convinced that •the judgment cannot be allowed to stand. The findings to the effect that the plaintiff had developed his title over the suit property on the basis of principle of blending is without any basis and, accordingly, the judgment and decree passed by the Sub-Judge-VI, Ranchi, dated 21st February, 2007 in Partition Suit No. 93 of 2002 is quashed, the decree is set at knaught (sio-nought?)., The appeal is allowed. There will be no order as to the costs.