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Tripura High Court · body

2016 DIGILAW 114 (TRI)

Seema Chakraborty v. Mina Rani Chakraborty

2016-04-28

S.TALAPATRA

body2016
JUDGMENT : This is an appeal under Section 100 of the CPC from the common judgment dated 19.09.2011 delivered in Title Appeal No.02/2010 and Title (Cross Objection) Appeal No.01/2011 by the Additional District Judge, North Tripura District, Kamalpur [now Unakoti Judicial District, Kamalpur]. 2. At the time of admitting this appeal against the concurrent finding on affirmation of the common judgment dated 06.10.2010 delivered in Title Suit No.13 of 2007 and Title Suit No.02 (Counter-Claim) of 2007 by the trial court, the Civil Judge, Junior Division, Kamalpur, North Tripura, the following substantial question of law was formulated by the order dated 08.04.2013 : “Whether the judgment and decree passed by the first appellate court, affirming the judgment and decree passed by the trial court in T.S.13 of 2007, suffers from perversity? However, the liberty was reserved to ‘hear’ the appeal on any other question of law that may arise in the course of hearing. 3. Having due regard to the substantial question of law, Mr. D.K. Daschaudhury, learned counsel appearing for the appellant has proposed for reframing substantial question of law in the following terms : “Whether the defendant No.1 had competence to transfer the suit land with definite boundaries having the effect of partition in favour of the defendant No.2 by means of the gift deed No.1924 dated 28.12.1983 inasmuch as the plaintiff and the defendant No.1 had the equal share over the land and at the relevant point of time the plaintiff was a minor and no authority has been obtained following the due process for execution of the said gift deed for the minor?” 4. Having considered the proposed substantial question of law, this court has reframed the substantial question of law, which reads as under: “Whether the finding by affirming the judgment returned by the trial court holding that in the land, as described in the Schedule-A, the plaintiff has got the equal right, title and interest over the suit land as the co-parcener without making any further analysis in respect of the status of the land as described in the gift deed bearing No.1-1924 dated 28.12.1983 (Exbt.A), can be sustained in view of its effects of partition?” 5. For purpose of appreciating the substantial question of law, the relevant fact as available in the records may be introduced at the outset. For purpose of appreciating the substantial question of law, the relevant fact as available in the records may be introduced at the outset. There is no dispute that Bhanu Bhusan Chakraborty, the deceased father of the plaintiff and the husband of the defendant No.1 got the land as described in the Schedule-A in the plaint by way of allotment. Even though the order of allotment was not produced but the khatian No.336 of mouja Salema, opened on mutation, has been admitted in the evidence as Exbt.C for showing that the land was allotted in favour of Bhanu Bhusan Chakraborty. After death of Bhanu Bhusan Chakraborty, indisputedly the plaintiff, namely Seema Chakraborty and the defendant No.1, Mina Rani Chakraborthy, as the legal heirs, inherited the property. On 21.01.1975, Bhanu Bhusan Chakraborty died intestate and as such there had been no testamentary successor in respect of the said property as described in the Schedule-A of the plaint. Hence it is obvious that the plaintiff, who was minor at the time of death of Bhanu Bhusan Chakraborty, and the defendant No.1 had equal right and interest over the said property. None has claimed in the suit that the defendant No.1, Mina Rani Chakraborty had ever been appointed as the guardian to manage the minor’s property or to transfer such property. On 28.12.1983 the defendant No.1 executed the gift deed, being 1-1924 in favour of the defendant No.2, Sri Kanak Bhusan Chakraborty, her brother in law. At that time even, the plaintiff was minor and such gift deed was executed without any authority to transfer the joint property standing in the name of the plaintiff and the defendant No.1. By the allotment order dated 07.10.1974, the suit land classified as tilla measuring 0.20 acre was allotted to Bhanu Bhusan Chakraborty. The said allotted land was developed as bastu by Bhanu Bhusan Chakraborty, according to the plaintiff, on investing huge money. The plaintiff became major in the year 1993 and she got married in the year 1995. As the defendant No.1 was serving at Agartala, most of the time the plaintiff had resided at Agartala, but she occasionally visited Salema where the land is located. According to the plaintiff, the defendant No.2 was looking after the said landed property and he was holding the documents relating to the said property. As the defendant No.1 was serving at Agartala, most of the time the plaintiff had resided at Agartala, but she occasionally visited Salema where the land is located. According to the plaintiff, the defendant No.2 was looking after the said landed property and he was holding the documents relating to the said property. The defendants No.3 and 4 were inducted in the suit land by the defendant No.2 without their consent. When the plaintiff on 07.05.2006 visited the said property and asked the defendants No.3 and 4 to vacate the land they claimed that the land was sold by the defendant No.1 to the defendant No.2 in the year 1983 and a photocopy of the said deed bearing No.1924 dated 28.12.1983 was shown to her and as per instruction of the defendant No.2 they occupied the land. But they did not hand-over any copy of the deed dated 28.12.1983. Since the land was the allotted land, it has been pleaded that, that could not have been transferred without permission from the Collector. When the plaintiff asked the defendant No.1, she had stated that her signature in the said document was obtained on the pretext for filing an application for correction of the record of right. She did not receive any consideration. Then the plaintiff obtained the certified copy of the registered deed dated 28.12.1983, wherefrom she could gather that the said deed was a gift deed and not a sale deed. The plaintiff has claimed that the said gift deed is an illegally registered instrument and is liable to be cancelled and that deed is liable to be declared void for all purposes. 6. It appears from the pleadings of the plaintiff that the land described in the Schedule-B is covered by the said gift deed and under the possession of the defendants No.3 and 4. The defendants No.3 and 4 had ignored the request to vacate the land. As such, the plaintiff has filed the suit for declaration of title and recovery of possession. The plaintiff sought for a decree of declaration of right, title and interest in respect of the land described in the Schedule A of the plaint whereas she sought the decree for recovery in respect of the land described in the Schedule B of the plaint. The plaintiff sought for a decree of declaration of right, title and interest in respect of the land described in the Schedule A of the plaint whereas she sought the decree for recovery in respect of the land described in the Schedule B of the plaint. The plaintiff has also asked for a decree for declaring the gift deed bearing No.1924 dated 28.12.1983 as void and illegal. The plaintiff has further asked for a decree declaring that she is entitled to get possession of the land as described in the Schedule A of the plaint. The pleadings of the plaintiff were not contested by the defendant No.1, rather she admitted the plaintiff’s case. But curiously enough nowhere in the written statement she denied the fact of executing the gift deed. However, in the para 3 of the written statement, she has stated that, “taking advantage of that, a false Sale Deed has been executed by the defendant No.2 vide Sale Deed No.1924 dated 28.12.1983 and no consideration money had been paid by the defendant No.2 to the defendant No.1 and no land has been transferred or handed over in favour of the defendant No.2 by the answering defendant No.1 as per said false sale deed at any time.” The defendant No.1 has all through in her written statement has described the gift deed dated 28.12.1983 as ‘the sale deed’ whereas mere perusal of the said deed would unwaveringly show that, that was a gift deed where it has been recited that the defendant No.2 was entitled to 50% of the allotted land measuring .20 acre. But in his life-time, Bhanu Bhusan Chakraborty could not transfer 50% of that land in favour of the defendant No.2. As a result, the land as described in the said gift deed measuring .10 acre has been gifted to the defendant No.2 with definite boundaries. 7. The defendant No.2 did not file any written statement, but the defendants No.3 and 4 by filing a joint written statement have claimed that on 01.05.1996 the land was handed over to the defendants No. 3 and 4 and since then they have possessing the said land adversely against the true owners. 7. The defendant No.2 did not file any written statement, but the defendants No.3 and 4 by filing a joint written statement have claimed that on 01.05.1996 the land was handed over to the defendants No. 3 and 4 and since then they have possessing the said land adversely against the true owners. Along with that, the defendants No.3 and 4 filed a counter-claim, being Title Suit No.02 (Counter-Claim) of 2007 in reference to the suit, filed by the plaintiff, being Title Suit No.13 of 2007 and claimed that the defendants No.3 and 4 had been possessing the suit land without any break or interruption since 9th December, 1980 and thus by virtue of their adverse possession they have acquired right, title and interest over the suit land etc. 8. The trial court tried both the title suit and the counter-claim together and by the said judgment dated 06.10.2010 has partly allowed the suit, but dismissed the counter-claim by holding that the defendants No.3 and 4 have failed to prove their adverse possession over the land as described in the Schedule-B. But the gift deed was not declared as illegal and void, holding that the original gift deed has been withheld by the defendant No.2 and as such it could not be compared whether the signature of the defendant No.1 over the gift deed is genuine or not. As stated earlier, by the said judgment dated 06.10.2010, the trial court declared the right, title and interest to the extent of 50% over the Schedule-A land recorded in khatian No.336 of mouja Salema, couched with further declaration that the remaining part of the Schedule-A land in khatian No.438 of mouja Salema, has been transferred by the defendant No.1 by the gift deed bearing No.1-1994 dated 28.12.1983. Pursuant to the said judgment, a decree for recovery directing the counter-claimants, the defendants No.3 and 4 to put the plaintiff in possession of the decreetal land, mentioned in Schedule-E of the decree, which pertains to C.S. plot No.1883 as recorded in khatian No.336 of mouja Salema, tehasil Salema under sub-division Kamalpur, measuring .10 acre. 9. Being aggrieved by the said common judgment and decree dated 06.10.2010, the plaintiff filed an appeal under Section 96 of the CPC, being Title Appeal No.02/2010. 9. Being aggrieved by the said common judgment and decree dated 06.10.2010, the plaintiff filed an appeal under Section 96 of the CPC, being Title Appeal No.02/2010. The defendants No.3 and 4 also filed a cross objection under Order XLI Rule 22 of the CPC, being Title (Cross Objection) Appeal No.01/2011 in the court of the Additional District Judge, North Tripura District, Kamalpur, as it then was. By the impugned common judgment dated 19.09.2011 the judgment and decree passed by the trial court has been affirmed. As a result, both the appeal and the cross objection filed by the plaintiff and the defendants No.3 and 4 respectively, were dismissed, even without any modification though some different reasoning’s have found place in the common judgment of the first appellate court. It has been observed that for cancellation of the gift deed, the party who has executed the instrument can only maintain the action. It has been further observed that the plaintiff-appellant has not been affected by execution of the gift deed for the land measuring .10 acre by her mother, the defendant No.1. As such, it has been inferred that the plaintiff will not suffer any injury over her right, title and interest or on her share of the land which she acquired by inheritance. It has been further held that the present plaintiff-appellant has got no right to sue for declaration of the gift deed bearing No.1924 dated 28.12.1983 as void or illegal. It has been observed that by mutation and opening a separate khatian the share and the property of the plaintiff and the defendant No.2 has been correctly shown. The said common judgment dated 19.09.2011 delivered in Title Appeal No.02/2010 has been challenged in this appeal, but the defendants No.3 and 4 did not file any appeal or cross objection in respect of the impugned common judgment. 10. Mr. D.K. Daschaudhury, learned counsel appearing for the appellant has submitted that the defendant No.1 had no competence to transfer the land measuring .10 acre out of the total allotted land as stated, inasmuch as the land was never partitioned. It is an invaluable right related to the property, inasmuch as how the joint property would be partitioned it is a matter of consensus or a legal process. In this matter no such process was followed and as such there was no partition. It is an invaluable right related to the property, inasmuch as how the joint property would be partitioned it is a matter of consensus or a legal process. In this matter no such process was followed and as such there was no partition. In view of this, the transfer of the land, well delineated by the definite boundaries as described in the gift deed is absolutely illegal. Apart that, the said transfer had taken place within 10(ten) years of the order of allotment without any permission from the Collector. He has further submitted that the analogy for rejecting the prayer for declaring the gift deed as void and illegal is fragile and in contrast to the provisions of law. It has to be admitted that no definite part of the land could be transferred by the defendant No.1 if she had at all transferred the said land by the said gift deed in favour of the defendant No.2. 11. On appreciation of the evidence, the trial court returned the finding, but it unravels that this appeal is based on the documents which are admitted in the evidence and on the questioned interpretation or inference there from. As such this court is reluctant to lay the evidence in detail, but the evidence those are relevant in view of the substantial question of law would be discussed in the course of analysis. 12. The questions those are very pertinent to be answered to have an answer to the substantial question of law can be noted as under: (i) Whether the defendant No.1 had any competence to transfer a definite part of the joint property as described in the Schedule-A, the entire allotted land, and if she had not such competence, whether the said deed of transfer (the gift deed) can affect the right of the plaintiff in any manner? (ii) Whether the plaintiff is entitled to get recovery of the entire land allotted to her father or not? 13. Before embarking on answering these questions, this court would like to note that the plaintiff has failed to produce the original gift deed from the custody of the defendant No.2 and as such it was not proved whether the gift deed was executed by the defendant No.1. Leaving that aspect aside, this court would evaluate the evidentiary materials, as relevant, for its decision. Leaving that aspect aside, this court would evaluate the evidentiary materials, as relevant, for its decision. The plea that has been taken that the defendant No.1 did not understand the content of the gift deed can hardly be believed inasmuch as, the gift deed in terms of Section 123 of the Transfer of Property Act, has been registered before the competent authority. What the defendant No.1 has pleaded though apparently may appear that she has been exploited as she did not receive any consideration money, but from reading of the recital and the nature of the deed of transfer it is apparent that there was no question of consideration, rather she has discharged her obligation as both the defendants No.2 and her deceased husband were living in the allotted land. She had transferred a definite part of the allotted land to the defendant No.2. As such, the objection raised by the plaintiff cannot be sustained. However, the defendant No.1 could question the genuineness of the gift deed by filing an appropriate suit under Section 31 of the Specific Relief Act as it has been rightly observed by the first appellate court that Section 31(1) of the Specific Relief Act, 1963 has provided that : “Any person against whom a written instrument is void or void able, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or void able; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.” 14. It cannot be denied that the defendant No.1 has equal share on the total allotted land and she had executed the gift deed limiting the property proportionately, however with definite boundaries. That aspect of the matter has not been properly analyzed by the courts below, which this court proposes to take up later while deciding the main substantial question of law. WHETHER THE DEFENDANT NO.1 HAD ANY COMPETENCE TO TRANSFER THE DEFINITE PART OF THE JOINT PROPERTY AS DESCRIBED IN THE SCHEDULE-A FOR THE ENTIRE ALLOTTED LAND IN THE PLAINT AND IF SHE HAD NO SUCH COMPETENCE WHETHER THE SAID DEED OF TRANSFER (THE GIFT DEED) CAN EFFECT THE RIGHT OF THE PLAINTIFF IN ANY MANNER? 15. WHETHER THE DEFENDANT NO.1 HAD ANY COMPETENCE TO TRANSFER THE DEFINITE PART OF THE JOINT PROPERTY AS DESCRIBED IN THE SCHEDULE-A FOR THE ENTIRE ALLOTTED LAND IN THE PLAINT AND IF SHE HAD NO SUCH COMPETENCE WHETHER THE SAID DEED OF TRANSFER (THE GIFT DEED) CAN EFFECT THE RIGHT OF THE PLAINTIFF IN ANY MANNER? 15. It is trite law that a coparcener of the joint property does not have the competence to transfer any definite part of the joint property unless the property is partitioned or such transfer is approved by the other coparceners. There cannot be any amount of doubt that to get the definite property out of the joint property is a distinct right of the coparcener as he has right to preference and convenience while the property is partitioned. These two characteristic rights are inalienable rights in respect of the joint property. By executing the gift deed, the coparcener has affected the said right of the plaintiff. As such, even though this court has stated that unless proper challenge is thrown by the person whose right would be violated for execution of the said deed of transfer, the court would not interfere with the said transaction, but that cannot be the end of the matter. The said transfer has to be declared to have the limited extent of title having regard to Section 44 of the Transfer of Property Act, which provides that : “Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.” 16. In view of this provision, it is clear that the co-owner’s right is limited to share (his or her) or interest. In view of this provision, it is clear that the co-owner’s right is limited to share (his or her) or interest. As such the gift deed has created a limited right in favour of the transferee in terms of Section 44 of the Transfer of Property Act. The defendant No.2 cannot claim any definite part of the un-partitioned allotted land which has been devolved to the plaintiff and the defendant No.1 as the legal heirs. But the defendant No.2 would have the right to enforce partition of the same as he is not in possession presently in any part of the un-partitioned land. Therefore, the land as transferred by the gift deed cannot affect the status of the land as un-partitioned and as such the schedule of the land as described in the gift deed with definite boundaries is void and operative for all purposes, but the share to the extent of 50% in the land described in the Schedule A of the plaint has devolved to the defendant No.2 by virtue of the gift deed, but without definite boundaries. The defendant No.2 may claim partition as well. As a result, the khatian as opened on the basis of the said gift deed, being khatian No.438 opened in favour of the defendant No.1 will have no legal force whatsoever and it is liable to be declared void for all purposes and accordingly it is so declared. WHETHER THE PLAINTIFF IS ENTITLED TO GET RECOVERY OF THE ENTIRE LAND ALLOTTED TO HER FATHER OR NOT? 17. In view of the observations made hereinabove, the plaintiff, the appellant herein, is entitled to get the recovery of the entire allotted land as described in the Schedule-A, the original allotted land measuring .20 acre and it will remain in her possession till the entire allotted land is partitioned according to law. This observation has been made for the reason that the defendant No.2 is not in possession and unless the gift deed is declared cancelled, the right of equal share of the defendant No.2 cannot be declared illegal. Having held thus, it has to be declared that the defendant No.1 shall have no share over the said allotted land. It is declared accordingly. 18. Having held thus, it has to be declared that the defendant No.1 shall have no share over the said allotted land. It is declared accordingly. 18. For dispelling any ambiguity, it is declared that the gift deed No.1-1924 dated 28.12.1983 (Exbt.5 and Exbt.A) is not a deed or instrument for a definite part of land with boundary as described by the schedule appended to the said gift deed. But it has created the transferee’s right to the share over the said allotted land measuring .20 acres and hence the defendant No.2 will have no right to possession as the defendant No.1 has parted her share till the partition takes place in accordance with law. The khatian No.438 of mouja Salema (Exbt.1 and Exbt.B) is declared void as it carries the element of partition illegally. It is further declared that the plaintiff is entitled to get recovery of the entire land as described hereunder which also includes the Schedule E of the decree passed by the trial court : “Within District – Dhalai, Sub-Registry Office – Kamalpur, Tahashil – Salema, PS – Salema, land under old Khatiand No.669 of Mouza – Salema under old Plot No.942/1558 classified as Bastu as per allotment dated 07.10.1974 land measuring .20 satak comprising R.S. Khatian No.438 of Mouza – Salema under Hal Plot No.1832/2296, bounded by North - Road South - Sailesh Acharjee, Nagendra Das & Drain East - Rabindra Lal Choudhury West - Ramakanta Deb Within this boundary land measuring .20 satak classified as Bastu.” 19. The plaintiff, the appellant herein, since is entitled to recover the land as described in the Schedule A of the plaint, it is directed that the defendants No.2, 3 and 4 shall hand-over the vacant land within a period of 3(three) months from today, else the plaintiff shall recover the said land by evicting the defendants No. 2, 3 and 4 through the process of the court by removing all obstructions and materials and the plaintiff will be entitled to continue in the possession of the said land till the said land is partitioned in accordance with law. 20. In the result, the appeal is partly allowed to the extent as indicated above, with costs. Prepare the decree accordingly. Send down the LCRs thereafter.