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2014 DIGILAW 678 (CAL)

Kalpana Majumdar v. Lakshmi Priya Shaw

2014-07-24

MRINAL KANTI CHAUDHURI, TAPAN KUMAR DUTT

body2014
JUDGMENT TAPAN KUMAR DUTT, J. : This Court has heard the learned Advocate for the appellants and has considered the relevant materials on record. It may be noted here that when the learned Advocate for the appellants was arguing the matter over a number of days, certain learned Advocates for some of the defendants/respondents had appeared but after the learned Advocate for the appellants completed his submissions time was sought for on behalf of some of the respondents to enable their learned Advocates to argue the matter but ultimately no one appeared to argue the matter on behalf of any of the respondents. Thus, this Court was compelled to conclude the hearing of the case after hearing the learned Advocate for the appellants on the merits of the case. The facts of the case, briefly, are as follows: The plaintiffs/appellants and the porforma defendant/respondent Smt. Ranju Sarkar filed a suit being title suit No. 50 of 2005 against the defendants/respondents praying, inter alia, for a decree declaring that the compromise decree passed in a certain T.S. No. 90 of 2004 which was fraudulently obtained by the defendants is void and/or not binding on the plaintiffs and the deed executed by the defendant Nos. 1(a) to 6 in favour of the defendant Nos. 9 and 10 is fraudulent and not binding on the plaintiffs and also the deed of cancellation dated 07.08.2009 executed by the original plaintiff No. 5(proforma defendant/respondent in the instant appeal, that is, Smt. Ranju Sarkar) in favour of defendant Nos. 2 to 6 is void and not binding upon the plaintiffs. The plaintiff also prayed for a decree for specific performance of contract dated 15.011.2002 on payment of balance consideration money and a decree for permanent injunction restraining the defendants and their men and agents from interfering with the plaintiffs’ possession in respect of the suit property. It may be noted here that the original plaintiff No.5 Smt. Ranju Sarkar was transposed to the category of proforma defendant in the said suit. The case of the plaintiffs was that one Kartik Chandra Shaw, since deceased, was the absolute owner of land measuring 33 decimal, more or less, comprised C.S. Dag No. 17, Khatian No. 44, R.S. Dag No. 17/28, Khatian No. 119 under Mouza – Govindapur being premises No. 104(previously 171/1A) Southern Avenue. The case of the plaintiffs was that one Kartik Chandra Shaw, since deceased, was the absolute owner of land measuring 33 decimal, more or less, comprised C.S. Dag No. 17, Khatian No. 44, R.S. Dag No. 17/28, Khatian No. 119 under Mouza – Govindapur being premises No. 104(previously 171/1A) Southern Avenue. The said Kartik Chandra Shaw died in the year 1945 and the defendant No.1, namely, Mangobinda Shaw and his elder brother Narayan Chandra Shaw became the joint owners of 50% share each in the aforesaid land. The plaintiffs’ further case was that the said Narayan Chandra Shaw died leaving behind his widow and four children who are the defendant Nos. 2 to 6 in the said suit and thus, they became 50% owner of the said property. It was alleged that subsequently Income Tax Department made preemptive purchase of the said property under Section 269 UD of Income Tax Act, 1961 and the defendants had filed writ petitions before the High Court, Calcutta against the Chief Commissioner, Income Tax Department challenging the said preemptive purchase and vesting of the said property to the Central Government. Thereafter, the said defendant Nos. 1 to 6 decided to sell the property and had openly declared their intention to sell the land measuring 15 cottahs 10 chittaks, more or less, out of the total land as more than one cottahs has been encroached by the neighboring landholders and Kolkata Municipal Corporation. Such property has been described as the “suit property”. The plaintiffs’ case was that in response to the defendant Nos. 1 to 6’s desire to sell the said property the plaintiffs showed their desire to purchase the said property and accordingly original plaintiff and defendant Nos. 1 to 6 entered into an agreement for sale dated 15.11.2002 on a total consideration price of Rs. 1,20,00,000/-(Rupees one crore twenty Lakhs) out of which Rs. 20,00,000/-( Rupees twenty lakhs) was paid to the said defendants by the plaintiffs as earnest money. The plaintiffs have stated in the plaint that the said deed of agreement was a registered one and the defendant No. 7 was a conforming party to the said agreement and the said defendant Nos. 1 to 6 delivered physical possession of the suit property to the plaintiffs who posted security guard at the said property. The plaintiffs have stated in the plaint that the said deed of agreement was a registered one and the defendant No. 7 was a conforming party to the said agreement and the said defendant Nos. 1 to 6 delivered physical possession of the suit property to the plaintiffs who posted security guard at the said property. The plaintiffs’ case was that it was stipulated in the said deed of agreement that the suit property would be made free from all encumbrances with the help of defendant Nos. 1 to 7 within four months from the date of execution of the said agreement including the disposal of the writ petition and failing to do so the plaintiffs would be entitled to take steps on behalf of the defendant Nos. 1 to 6 and they would be entitled to adjust the expenses incurred for the same including Corporation and Land Tax Department due up to the date of registration of the sale deed from the balance consideration money. It was also stipulated that even if after the removal of all doubts and complications the plaintiffs fail or neglect to obtain registration on payment of balance consideration money within three months of such removal, then the defendant Nos. 1 to 6 would be entitled to enforce the agreement through court of law. The case of the plaintiffs was that the defendant Nos. 1 to 7 did not act as per the agreement for sale and the plaintiffs had to incur huge legal expenses. The plaintiffs have alleged that the defendants have been trying to sell the property to others and as such the plaintiffs were compelled to file a suit for declaration and injunction being Title Suit No. 140 of 2004 which is pending before the learned Trial Court concerned and the defendant Nos. 1 to 7 appeared in the said suit and filed objection against the injunction application where the defendant Nos. 1 to 7 admitted the fact about the execution of the agreement. The plaintiffs have alleged that the plaintiffs discovered from newspaper publication dated 26.01.2005 that a compromise decree has been passed in favour of the defendant No.8 in a certain title suit No. 90 of 2004 by the learned 3rd Civil Judge(Junior Division), at Alipore on 09.09.2004. 1 to 7 admitted the fact about the execution of the agreement. The plaintiffs have alleged that the plaintiffs discovered from newspaper publication dated 26.01.2005 that a compromise decree has been passed in favour of the defendant No.8 in a certain title suit No. 90 of 2004 by the learned 3rd Civil Judge(Junior Division), at Alipore on 09.09.2004. The plaintiffs made enquiry and came to know that the defendant No.8 had collusively filed the said suit in respect of the suit property against the defendant Nos. 1 to 6 being title suit No. 90 of 2004 and obtained a fraudulent compromise decree on 09.09.2004 by suppressing material facts before the said learned Court. The plaintiffs’ case is that on the plaintiffs’ prayer the learned Court was pleased to pass an interim order of status quo in the said title suit No. 140 of 2004 in respect of the suit property but the defendants in violation of such status quo order, tried to take possession of the suit property. It is the plaintiffs’ case that the plaintiffs got an order of injunction in T.S. 140 of 2004 whereby the defendants were restrained from selling the suit property to any person or persons, and in spite of the order of injunction the defendant Nos. 1 to 7 illegally sold out the suit property to the defendant Nos. 9 and 10 and the defendant Nos. 9 and 10 purchased the said property with an ulterior motive in spite of having their knowledge about the said agreement. The plaintiffs’ case is that the F.M.A.T 96/2004 and A.P.O.T 61 of 2003 were disposed of by the Hon’ble Court and the plaintiffs are entitled proceed to complete the contract of sale and the defendant Nos. 1 to 7 are legally bound to sell the suit property to the plaintiffs but the said defendants refused to execute the sale deed in favour of the plaintiffs. The plaintiffs have also challenged the deed of cancellation dated 07.08.2009 executed by the proforma defendant who was the original plaintiff No.5. It will appear from the impugned judgment that the defendant No.1 Mangobinda Shaw died leaving behind the defendant Nos.1(a) to 1(e). They did not contest the suit. The defendant No. 2 filed one written statement for self and also on behalf of the defendant Nos. 5 and 6 and they all three contested the suit but the defendant Nos. It will appear from the impugned judgment that the defendant No.1 Mangobinda Shaw died leaving behind the defendant Nos.1(a) to 1(e). They did not contest the suit. The defendant No. 2 filed one written statement for self and also on behalf of the defendant Nos. 5 and 6 and they all three contested the suit but the defendant Nos. 3, 4 and 7 did not contest the suit. The defendant No.8 filed written statement but did not contest the suit and the defendant Nos. 9 and 10 did not file any written statement. But they were allowed to contest the suit. The defendant Nos. 2, 5 and 6 denied all the material allegations made in the plaint but admitted the agreement for sale dated 15.11.2002. The said defendants took the stand that the plaintiffs never paid Rs. 20,00,000/- (Rupees twenty lakhs) to the said defendants at the time of execution of the agreement for sale. It was alleged that the plaintiffs paid a sum of Rs. 4.50,000/ (Rupees Four lakhs fifty thousand) to the defendant Nos. 1, 3 and 4 only, which makes the agreement a void one and the signatures of the said defendants were obtained by the plaintiff in the said agreement by taking advantage of good faith reposed by the said defendants upon the plaintiffs that immediately after execution of the agreement for sale the plaintiffs would hand over bank draft in favour of the said defendants. The said defendants’ case was that Title Suit No. 140 of 2004 was filed by the plaintiffs by making false allegation. It is the case of the said defendants that the plaintiffs never paid any part of consideration money to the said defendants but fraudulently got the said agreement signed. The said defendants filed counter-claim praying for a decree of declaration that no consideration in respect of the said agreement for sale dated 15.11.2002 having been passed between the plaintiffs and the defendants and also signatures of the Constituted Attorney of the defendant Nos. 2, 5 and 6 were obtained by practicing fraud, the said agreement dated 15.11.2002 is not binding upon the defendant Nos. 2, 5 and 6 were obtained by practicing fraud, the said agreement dated 15.11.2002 is not binding upon the defendant Nos. 2, 5 and 6 and the same is void ab initio a decree for declaration that the plaintiffs never acquired any right, title and interest in the suit property on the basis of the said agreement for sale dated 15.11.2002 and also a decree for permanent injunction restraining the plaintiffs from assigning/utilizing the said agreement for sale dated 15.11.2002 in respect of the suit property to any third party and/or from exercising any right in connection with the said agreement for sale. The said defendants’ further case was that the defendants filed T.S. No.50 of 2006 against the plaintiffs for a declaration that the agreement dated 15.11.2002 is void and invalid and the plaintiff/appellants did not acquire any right from the said agreement. The defendants further case was that the defendant No.9 and 10 purchased the suit property on 01.03.2005 against the payment of full consideration money and the defendant Nos. 9 and 10 agreed to pay the plaintiffs a sum of Rs. 50,00,000/- (Rupees Fifty lakhs) as compensation for withdrawal of T.S. 104 of 2003 and in pursuance of the said proposal the plaintiff No.1 instructed the learned Advocate to prepare a draft agreement for cancellation of the agreement for sale dated 15.11.2002 and also give instructions for withdrawal of the suit. The plaintiff No.1 did not collect the said sum of Rs. 50,00,000/- (Rupees Fifty lakhs) but the defendant No.2 came to know while she got a certified copy of the petition for withdrawal of title suit No. 50 of 2006 that by practicing fraud upon her paragraph 2 of the said petition was inserted with the averment that the defendant Nos. 2, 5 and 6 are ready and willing to execute the deed of conveyance in favour of the plaintiffs abide by the terms of the defunct agreement for sale dated 15.11.2002. The said defendants also filed a petition in T.S. 50 of 2006 for recalling of the order of withdrawal and restoration of the suit. According to the said defendants, on 27.07.2005 Smt. Ranju Sarkar as proforma defendant executed the alleged deed of assignment mentioning therein that she had no right, title and interest in respect of the agreement for sale dated 15.11.2002. According to the said defendants, on 27.07.2005 Smt. Ranju Sarkar as proforma defendant executed the alleged deed of assignment mentioning therein that she had no right, title and interest in respect of the agreement for sale dated 15.11.2002. It is the case of the said defendants that by a registered deed of cancellation dated 07.08.2009 the said Ranju Sarkar declared that she had neither assigned nor nominated nor transferred the usufructs and the benefits of the aforesaid agreement to any other person. It is the case of the said defendants that by a deed of cancellation the said Ranju Sarkar received back Rs.3,00,000/- (Rupees three lakhs) she paid to the concerned defendant together with the additional amount of Rs. 1.50,000/- (Rupees one lakhs fifty thousand). The said defendants further case is that by agreement for assignment dated 14 September, 2006 executed by and between Kalpana Mujumdar and Others and the said Ranju Sarkar an amount of Rs. 7.50,000/- (Rupees Seven lakhs fifty thousand) was fixed as total consideration for assignment. A sum of Rs. 1,35,500/- (Rupees one lakh thirty five thousand five hundred) was paid as advance and it was further decided that on payment of balance consideration price, deed of assignment shall be executed by Ranju Sarkar. It was alleged that the said Ranju Sarkar issued notice dated 10.09.2007 to the plaintiffs for the balance payment and also for execution of the assignment but the plaintiffs expressed their unwillingness to obtain the deed of assignment and directed the said Ranju Sarkar to return back the amount of Rs. 1,35,500/- (Rupees one lakh thirty five thousand five hundred) to the first party in the agreement for assignment dated 14.09.2006. The case of the said defendant Nos. 2, 5 and 6 was that if Ranju Sarkar had already assigned her rights in respect of the agreement for sale dated 15.11.2002 on execution of the alleged deed of assignment dated 27.07.2005 then what was the necessity of making another agreement of assignment dated 14.09.2006 and paying Rs. 1,35,500/- (Rupees one lakh thirty five thousand five hundred) as advance to Ranju Sarkar and hence the alleged deed of assignment dated 27.07.2005 is denied. That the said suit came up for hearing. The learned Trial Judge has recorded that the defendant Nos. 2, 5 and 6 did not adduce any oral evidence and they cross-examined P.W.1 and thus, completed their part. That the said suit came up for hearing. The learned Trial Judge has recorded that the defendant Nos. 2, 5 and 6 did not adduce any oral evidence and they cross-examined P.W.1 and thus, completed their part. The learned Trial Court also recorded that no documentary evidence was adduced by the said defendants. It also appears from the said judgment that the defendant Nos. 9 and 10 also did not adduce any evidence. The said suit came up for hearing when the learned Trial Court (Learned Civil Judge(Senior Division) 9th Court at Alipore South 24Pgs.) by judgment and decree dated 26th September, 2011 dismissed the said suit. Challenging the said judgment and decree passed by the learned Trial Court the plaintiffs/appellants have filed the present appeal. It appears that the defendants contended before the Trial Court that the plaintiffs do not have any cause of action but the learned Trial Court decided such issue in favour of the plaintiffs. It also appears that the learned Trial Court over-ruled the objection raised by defendants that the suit is barred under Order 2 Rule 2 C.P.C. in the facts of the instant case. The defendants also took the point that the present suit is barred under Order 23 Rule 3A C.P.C. but the learned Trial Court over-ruled such objection. However, the learned Trial Court was of the view that since no relief has been claimed against the proforma defendant Ranju Sarkar, it is fatal to the suit. But it appears from the plaint that the plaintiffs have prayed for a decree declaring the deed of cancellation dated 07.08.2009 whereby the said Ranju Sarkar intended to cancel the agreement for sale dated 15.11.2002 to the extent of her 1/5th share in the property as a void one and not binding on the plaintiffs. The learned Trial Court referred to the deed of assignment dated 28.07.2005 wherein the said proforma defendant Ranju Sarkar(described in the Deed as First Party/assignor) and the plaintiff Nos. The learned Trial Court referred to the deed of assignment dated 28.07.2005 wherein the said proforma defendant Ranju Sarkar(described in the Deed as First Party/assignor) and the plaintiff Nos. 3 and 4 ( described in the Deed as Second Parties/Assignees) were parties and the existence of the Agreement for sale was mentioned therein and it was recorded therein that the said Ranju Sarkar has assigned, transferred, relinquished and released all her right, title and interest in respect of her 1/5th undivided share in the property indicated in the said deed of assignment in favour of the said two plaintiffs for good and forever. It appears that the property described in the said deed is the suit property. It was also recorded in the said deed that the said Ranju Sarkar had no financial contribution in connection with the said agreement for sale in respect of the suit property and, therefore, no question does arise for making any payment to the said Ranju Sarkar by the said two plaintiffs. It was also made clear in the said deed that the said Ranju Sarkar has no claim or demand in and over the suit property. The learned Trial Court found that the said deed being Ext. 44 implies a declaration of the proforma defendant’s will and not a mere statement of fact and the learned Trial Court was of the view that the said deed of assignment does not postulate the assignment of actionable claim but transfer and assignment of right in the immovable property to the extent of 1/5 share of the said Ranju Sarkar. For the better appreciation of the said deed of assignment the relevant portion of the said deed may be quoted below: “Now this indenture witnesseth as follows: 1. That the First Party/Assignor has assigned, transferred, relinquished and released all her right, title and interest in respect of her 1/5th undivided share in the below scheduled land in favour of the Second Parties/Assignees for good and for ever. 2. That since the First Party/Assignor had no financial contribution in connection with the agreement for sale in respect of the below scheduled land, therefore, no question does arise for making any payment to the First Party/Assignor by the Second Parties/Assignees. That now onwards the First Party/Assignor has no claim or demand in and over the below scheduled land”. 2. That since the First Party/Assignor had no financial contribution in connection with the agreement for sale in respect of the below scheduled land, therefore, no question does arise for making any payment to the First Party/Assignor by the Second Parties/Assignees. That now onwards the First Party/Assignor has no claim or demand in and over the below scheduled land”. It will appear from the words of the said deed, as quoted above, that the said deed merely recorded the fact that the said Ranju Sarkar has assigned, transferred, relinquished and released her right in respect of her 1/5th undivided share in the suit property in favour of the said plaintiffs and that the said Ranju Sarkar had made no financial contribution in connection with the agreement for sale dated 15.11.2002. The learned Trial Court has referred to Section 17(1)(b) of the Registration Act, 1908. It is true that it has been stipulated therein that non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or any immovable property have to be registered. But it appears from the recitals in the said deed that the said deed has merely recorded the fact of assignment made by the said Ranju Sarkar. But the said deed does not create the assignment itself. The learned Trial Court found that the said Ext.44 is not an assignment of actionable claims. The learned Trial Court ought to have held that the said Ext. 44 is not an assignment of anything but it only records the fact of assignment. The learned Trial Court found that the deed of assignment, not being registered, is not admissible in evidence. The learned Trial Court further found that the suit brought by the plaintiff is centered around this unregistered document(Ext.44) and as such the suit cannot be decreed on the basis of the agreement for sale dated 15.11.2002 and, therefore, the suit must fail. The learned Trial Court further found that the suit brought by the plaintiff is centered around this unregistered document(Ext.44) and as such the suit cannot be decreed on the basis of the agreement for sale dated 15.11.2002 and, therefore, the suit must fail. The learned Advocate for the plaintiffs/appellants has referred to Mulla on the Indian Registration Act, 10th Edition, wherein it appears that a reference has been made to a decision reported at 15CWN 375 where it was held that the essence of the matter is whether the document is the transaction itself or contains merely an incidental recital of a previously completed transaction. Reference has also been made to some other decisions including the said reported decision and it has been observed that a mere recital does not require registration. The said learned Advocate cited a Privy Council decision reported at XV L.W. (The law weekly) 486. It appears from the impugned judgment that a decision reported at AIR 1966 SC 1836 (Maturi Pullaiah and another –V- Maturi Narasimham and others) was referred to. It appears from Paragraph 21 of the said reports that the Hon’ble Court was pleased to hold that the document in question in the said case did not create any interest in immovable properties in praesenti in favour of the parties mentioned therein and, therefore, the document was not hit by Section 17 of the Indian Registration Act. The learned Advocate for the appellants also referred to the provisions of Section17 (2) (v) of the Registration Act, 1908 in this regard. The learned Advocate for the appellant has submitted that since the said proforma defendant has admitted that she did not contribute anything towards consideration money in respect of the said agreement for sale the said proforma defendant has no existing right in any part of the suit property. In support of his submission in this regard the learned Advocate referred to Section 45 of the Transfer of Property Act. The said learned Advocate referred to the Exts. 45 and 46 to show that the parties have always admitted that the said agreement for sale dated 15.11.2002 exists. The learned Trial Court was of the view that the deed of cancellation being Ext. The said learned Advocate referred to the Exts. 45 and 46 to show that the parties have always admitted that the said agreement for sale dated 15.11.2002 exists. The learned Trial Court was of the view that the deed of cancellation being Ext. 46 cannot be declared to be a void document simply on the basis that it found the said document to be a registered document, and the learned Trial Court found that if such a decree cannot be passed, the suit in respect of other reliefs cannot be decreed and the suit in the present form fails on such point. The learned Trial Court found that the suit fails on the maintainability point and there is no appropriate reason to discuss and decide the other issues involved in the suit and, therefore, adjudication in respect of the remaining issues would be an useless attempt and, therefore, the suit needs to be dismissed. Even though argument was made on behalf of the plaintiffs/appellants that the purported sale made by the defendant Nos. 1 to 6 in favour of the defendant Nos. 9 and 10 was void as the said sale was made in violation of the interim order of status quo passed in a certain suit against the said defendant Nos. 1 to 6 and also cited certain reported decisions in this regard, this Court is not inclined to go into such question at this stage as it appears from the impugned judgment that the learned Trial Court has dismissed the suit on the point of maintainability and has refrained from deciding the other issues involved in the suit excepting the issue as to whether or not the plaintiffs have any cause of action to file the suit, as already noted above. In view of the discussions made above, this Court is of the view that the learned Trial Court was not correct in holding that the suit is not maintainable. This Court is of the view that the suit has to be sent back on remand to the learned Court below concerned for a fresh decision of the said suit on all the issues involved in the said suit in the light of the observations made above. The impugned judgment and decree passed by the learned Trial Court is set aside. The impugned judgment and decree passed by the learned Trial Court is set aside. Accordingly the present appeal is disposed of by directing that the said suit being title suit No.50 of 2005 be remanded back to the learned Trial Court concerned with the direction upon the learned Trial Court to decide the said suit on all the issues framed by the said Court in the light of the observations made above, in accordance with law. In view of the disposal of the appeal the application being CAN 4912 of 2012 also stands disposed of. Let the lower Court records be sent back to the learned Court below concerned and a copy of this judgment be also communicated to the learned Court below concerned by Special Messenger and the Special Messenger cost for such purpose shall be put in by the appellants within one week. There will be no order as to costs.