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2016 DIGILAW 119 (TRI)

State of Tripura v. Rajasree Sinha

2016-05-31

S.TALAPATRA

body2016
JUDGMENT : By means of this revisional application filed under Section 115 of the CPC, the order dated 17.12.2014 delivered in Misc.(Ex) No.6 of 2014 has been called in question. The said Misc.(Ex) No.6 of 2014 has arisen from Title Execution Case No.10 of 2013. To be precise, the objection under Section 47 of the CPC filed by the petitioners herein (the JDs No.5 and 6) has been registered as Misc. (Ex) No.6 of 2014. By the impugned order dated 17.12.2014, the said objection has been rejected. 2. The short fact that may be essential to appreciate the challenge as laid by this petition is that one Anukul Chandra Saha entered into an agreement for sale of the decreetal land on 04.08.2009 with the decree-holder, the respondent No.1. The consideration was settled at Rs.4,00,000/-and a sum of Rs.3,50.000/-was received by Anukul Chandra Saha as the earnest money at the time of executing the said agreement to sale. It was agreed that on payment of the remainder i.e. Rs.50,000/-, Anukul Chandra Saha would execute the sale deed. Suddenly, Anukul Chandra Saha died on 15.09.2009 before the expiry of the said 3(three) months. Since Anukul Chandra Saha had no descendants or legal heirs, one local club had hung a sign board on the suit land. According to the decree-holder, the said step was taken to deprive her. As a result, the respondent No.1 filed the suit, being Title Suit No.91 of 2009 against the petitioners and the respondents No.2, 3 and 4. 3. The petitioners herein by filing the written statement have contended that the State was not a party in the agreement and as such the State had no objection in executing any sale deed. Moreover, Mr. D. Chakraborty, learned senior counsel appearing for the petitioners has submitted that the transaction must be inter vivos. Section 5 of The Transfer of Property Act does not include the State within the meaning of 'living person'. However, living person includes a company or association or body of individuals, whether incorporated or not, but nothing by sweep a 'living person' shall include the State and hence the State does not have the authority to transfer any property to any individual in terms of the Transfer of Property Act, 1882 and thus the State is not a ‘person’ within the meaning of Section 7 of the Transfer of Property Act, 1882. However, Mr. However, Mr. Chakraborty, learned senior counsel has fairly admitted that the suit has been decreed pursuant to the judgment dated 13.02.2013 in the following terms: “i. In the result the suit is decreed in favour of the plaintiff on contest. The plaintiff is entitled to get a registered sale deed for the suit land specifically described in the schedule on accepting balance amount of Rs.50,000/-by the defendant No.5. ii. The defendant No.6 is accordingly, directed to execute a necessary sale deed for the suit land in favour of the plaintiff after receiving the said amount of Rs.50,000/-from the plaintiff within two months from the date of passing of this judgment. In case the defendant No.6 does not execute the sale deed, within the said period after receipt of the balance amount of Rs.50,000/-plaintiff be entitled to get the sale deed executed in his favour by this court for the suit land. iii. Defendants No.1 to 3 are directed to hand over the vacant possession of the suit land to the plaintiff. iv. Cost of the suit are to be borne by the parties of their own.” 4. It is also admitted that none of the defendants including the petitioners herein preferred an appeal against the said judgment or the decree. Since the petitioner No.2, the defendant No.6 in the suit did not execute the sale deed on receipt the remainder of the consideration amounting to Rs.50,000/-from the plaintiff (the respondent No.1) herein within 2(two) months from the date of passing of the judgment, the plaintiff put the decree for execution by filing an appropriate application being Title(Execution) Case No.10 of 2013. In the said case the petitioners filed objection under Section 47 of the Code of Civil Procedure on the ground that the original owner of the land was competent to make the sale deed for transferring the decreetal land to the decree holder. But the State is not the legal heir of the deceased and the State has no interest in the property and the State cannot execute the sale deed for transferring the decreetal land to the decree holder nor the executing court has the jurisdiction to execute any sale deed in favour of the decree-holder on behalf of the State. The said objection was registered as Misc.(Ex) Case No. 6 of 2014. The said objection was registered as Misc.(Ex) Case No. 6 of 2014. It was also asserted by the said objection that under Section 29 of the Hindu Succession Act 1956, if any intestate has left no heir, qualified to succeed to his or her property in accordance with the provisions of the said Act, such property shall devolve on the Government and the Government shall take the property subject to all the obligations and liability to which an heir would have been subjected and in the present case, the decree-holder is at liberty to institute the suit for declaration of escheat in compliance with the procedure prescribed by law impleading the Government and other interested parties as defendants and if the escheat is declared by the competent court of law, the decreetal land may be vested in the Government in which case the decreetal land would be recorded in the khash khatian in the name of the Government and the Government would be at liberty to grant allotment of the land in favour of the decree-holder. 5. On the similar ground, this petition has been preferred as those grounds were not favourably decided by the executing court. But additionally one ground has been taken in this petition is that since the land is heritable but not alienable, without the written consent of the Collector, the said agreement to sale as executed was not valid in the eye of law. 6. Mr. P.K. Dhar, learned counsel appearing for the respondent No.1 has categorically submitted that the Collector has granted necessary permission and only thereafter the said agreement of sale was executed. 7. At that point of time, Mr. Chakraborty, learned senior counsel has admitted that the Collector accorded the permission for transfer of the land. There is no dispute that by a letter dated 11.09.2013 (Annexure -R-1 to the affidavit filed by the respondent No.1) one Additional District Magistrate & Collector, West Tripura, Agartala was instructed as under: “On depositing the amount of Rs.50,000/-(Rupees Fifty thousand) only, you are also requested to prepare sale deed on the stamp paper as per approved rate of the Govt. of Tripura and the same along with money receipt is to be submitted to this office for verification as per order of the judgment.” 8. of Tripura and the same along with money receipt is to be submitted to this office for verification as per order of the judgment.” 8. However, before the respondent No.1 could deposit the said amount for execution of the sale deed as per terms of the said decree, the petitioners submitted the objection under Section 47 of the CPC questioning the executibility of the decree. The said petition has been rejected by the impugned order following the due process of law. Mr. P.K. Dhar, learning counsel appearing for the respondent No.1 has submitted that from the execution return report dated 26.06.2015, it would be apparent that the decree has been executed by executing the sale deed in respect of the decretal land, as described in the agreement to sale by the executing court having authorised its Sheristadar on 01.04.2015 and the respondent No.1 has been put in possession of the decreetal land on 10.06.2015. Thus, the decree has been fully satisfied. Hence the challenge has become infructuous. 9. Mr. D.K. Biswas, learned counsel appearing for the respondent No.2 has submitted that the respondents No.2, 3 and 4 did not contest the suit by filing the written statement. He has further submitted that for negligence of the counsel engaged by the respondent No.2, such written statement could not be filed. The respondent No.2 has filed an appeal against the judgment and decree in the court of the District Judge with a petition for condoning the delay. No effective order has yet been passed in the petition for condoning the delay or in the appeal. However, Mr. Biswas, learned counsel has submitted that the defendant No.2 is not the legal heir as per the Hindu Succession Act. Her claim is based on the possessory right. Be that as it may, we are not concerned with such claim of the respondent No.2 in this proceeding, inasmuch as even the respondent No.2 did not file any objection before the executing court. 10. From the above discussion as made, the only question that emerges to be appreciated is the legality of the order, whether the State was under any obligation to execute the sale deed in favour of the respondents No.1 and 2. There cannot be any amount of dispute when the special statute makes any provision that has to be observed in derogation of the other statute. There cannot be any amount of dispute when the special statute makes any provision that has to be observed in derogation of the other statute. In this regard, it may be noted that the preamble of the Hindu Succession Act, 1956 reads that “An Act to amend and codify the law relating to intestate succession among Hindus.” Therefore, so far the intestate succession is concerned the Hindu Succession Act, 1956 is a special statute vis-a-vis the Transfer of the Property Act, 1882. The interpretation of Section 29 of the Hindu Marriage Act as given by the petitioner cannot be accepted. Section 29 of the Hindu Succession Act, 1956 clearly provides that if an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the Government and the Government shall take the property subject to all the obligations and liabilities to which an heir would have been subject. As such, it is apparent that the role of the Government shall be of an heir who would have been subjected to all the obligations and liabilities. It cannot be denied that an heir would have been subjected to obligation to execute the sale in terms of the agreement to sale on observance of the terms of the said agreement to sale. 11. There is no dispute that the respondent No.1 was always ready to make payment of the remainder and it is apparent from the order of the executing court that she intended to deposit within the said time, but before that the objection had been filed questioning the executibility of the said decree. Now the Government by raising a technical plea cannot frustrate the legitimate right of the respondent No.1. 12. In the result, this court does not find any infirmity in the impugned order and in consequence thereof, this petition stands dismissed. However, in the circumstances, there shall be no order as to costs.