Research › Search › Judgment

Calcutta High Court · body

2022 DIGILAW 1448 (CAL)

Priya Ranjan Naha v. Mamata Naha

2022-11-09

SOUMEN SEN, UDAY KUMAR

body2022
JUDGMENT : SOUMEN SEN, J. 1. The present appeal has arisen out of a preliminary decree dated July 20, 2012 passed by the learned Civil Judge (Senior Division), Second Court at Barasat, North 24 Parganas, in a suit for partition being Title Suit No. 139 of 2008. 2. The plaintiffs/respondents have filed the instant suit seeking partition of properties measuring approximately more or less 16 cottahs 9 chittaks of land. They claimed that the plaintiffs no. 4 and 5 along with the defendant/appellant and Shanti Ranjan Naha being the predecessor in interest of the plaintiffs no. 1 to 3 were brothers, who purchased land measuring approximately 7 cottahs 7 chittaks comprised under Khatian no. 90, R.S. Dag No. 6434. The said property was claimed to be adjacent to the property belonging to their mother measuring approximately more or less 9 cottahs 2 chittaks comprised under R.S. Dag No. 6644, where they were already living as a family with their parents. The property belonging to the mother was purchased by the four brothers by way of two deeds executed in the year 1985. By virtue of such purchase the four brothers became joint owners of 16 cottahs 9 chittaks of land, which they were holding jointly. The property was later developed and two permanent structures wrere constructed in the property. After the death of Shanti Ranjan Naha, the plaintiffs no. 1 to 3, who are his widow and children, inherited one-fourth share of Shanti Ranjan Naha in the property. In spite of the request of the plaintiffs to have an amicable partition of the property, the sole defendant/appellant refused to have the same, resulting in filing of the suit for partition. 3. The defendant/appellant has entered appearance and contested the suit by filing written statement. Principally, the suit is contested on two grounds, namely, (1) on the ground that the suit is bad for non-joinder of necessary parties and (2) the suit is barred by partial partition. In the written statement, however, it was not alleged that the suit was bad for non-joinder of necessary parties. The defendant/appellant, however, filed an application under Order I Rule 10 of the Code of Civil Procedure for impleadement of five sisters, who were left out in the suit for partition. 4. In the written statement, however, it was not alleged that the suit was bad for non-joinder of necessary parties. The defendant/appellant, however, filed an application under Order I Rule 10 of the Code of Civil Procedure for impleadement of five sisters, who were left out in the suit for partition. 4. The learned advocate for the appellant submits that all the properties left behind by the father were not included in the schedule of the suit for partition. The learned advocate for the appellant has relied upon a decision of the Supreme Court in the case of Kenchegowda (Since Deceased) by Legal Representatives vs. Siddegowda alias Motegowda, (1994) 4 SCC 294 in support of his submission that when all the joint family properties were not made the subject matter of the suit nor the co-sharers are impleaded, the suit is bad for partial partition. 5. Before the trial court it appears that reliance was placed on Jogendra Nath Mukerji vs. Jugobundhu Mukerji and Another (Minor) by their Mother and Guardian Nistarini Dabi and Others, ILR 14 Cal. 122 in which Chief Justice Petheram dismissed the partition suit since the plaintiff has sought to partition only a portion of joint property. 6. Admittedly, the trial court dismissed the said application on January 13, 2009 after taking into consideration that the properties were acquired by the predecessor in interest of the plaintiffs and the defendant by virtue of registered deeds dated August 12, 1985. The trial court accepted the contention of the plaintiffs that the daughters did not acquire any interest over the property covered under two deeds executed in favour of four sons. It was further held that for proper adjudication of the issues raised in the suit, the said daughters are not necessary. 7. It appears from the impugned judgment that the said order dated January 13, 2009 was affirmed by this court and, accordingly, the trial court rejected the contention of the defendant/appellant at the trial of the suit that the suit is bad for non-joinder of necessary parties. Significantly, the daughters also did not come forward with any application for their impleadement in the suit, which goes to show that the daughters are aware of the existence of the said deeds and their exclusion from the properties of the joint family. 8. Significantly, the daughters also did not come forward with any application for their impleadement in the suit, which goes to show that the daughters are aware of the existence of the said deeds and their exclusion from the properties of the joint family. 8. It appears that the mother sold the property in favour of her four sons including the appellant. The appellant was a signatory to the said deed and, accordingly, he was duly aware of the fact that their mother had executed the said deed in their favour, which is clearly reflected from the two deeds that are marked as exhibits. The transaction that took place in the year 1985 was never challenged. These facts go in favour of the plaintiffs and in our view the trial court has rightly rejected the claim of the sole defendant/appellant that the property is joint property and the sale deeds are required to be ignored. 9. The property measuring about 7 cottahs 7 chittaks comprised under Khatian No. 90 R.S. Dag No. 6434 are purchased by the four brothers. There is another property to which reference has been made by the defendant/appellant, which appears to be a water-body/tank purchased by the father along with three other strangers. This property has not been included in the hotch pot of the suit. 10. In this conspectus of the fact, it is rightly held that the suit is not bad for partial partition. Following the weight of authorities that in the facts of the case a suit will lie for partial partition we concur with the findings of the trial court. 11. In this regard we may refer to the Division Bench judgment of our court in Harey Harey Sinha Choudhury and Others vs. Hari Chaitanya Sinha Chowdhury and Others, 40 CWN 1237 where these circumstances under which a suit shall not be bad for partial partition has been stated in the following words: “An exception to the rule that all joint property must be brought into the hotch-pot is that where properties are held jointly by all the co-sharers with strangers who cannot conveniently be added as parties to the suit for partition between members of the joint family such properties should be excluded from the partition. .......There are properties which were possessed by Gobinda Sundar in Common with strangers who are not parties to the present suit; and although the general rule is that a suit for partition must embrace all the joint properties, there are certain recognized exceptions to the said rule. One of them is that where properties are held jointly by all the co-sharers with strangers who cannot conveniently be added as parties to the suit for partition between members of the joint family, such joint properties should be excluded from partition as forming an exception to the general rule. This is one of the recognized exceptions. The same this is pointed out in the case of Rajendra Kumar Bose vs. Brojendra Kumar Bose, (1992) 37 C.L.J. 191 where this exception is recognized and the question has been elaborately discussed and we need simply to refer to it.” 12. In Tarini Charan Chakerbutty and Another vs. Debendralal Dey and Others, 39 CWN 1044 Justice Nasim Ali upon noticing some divergence of judicial opinion on the question whether an alinee from a co-sharer is entitled to institute a suit for partition of the property in which he alone is interested held that it is a general rule that a partition suit should embrace all joint properties among the co-sharers, however, there is also a complementary rule that a suit for partition cannot include properties in which each of the parties does not claim an interest. The general rule is the rule of equity and convenience and can be relaxed and a partial partition could be allowed where it is not proved that the parties will be prejudiced or inconvenienced by such partition. 13. This has been reiterated by a coordinate bench of this court in the case of Umapati Manna and Others vs. Becharam Manna and Others, 1990 (1) C.L.J. 461. 14. A division bench of Himachal Pradesh High Court in a decision rendered in the case of Smt. Lila Wati and Others vs. Paras Ram and Others, AIR 1977 H.P. 1 has held that a partition between the coparceners might be partial either in respect of the property or in respect of the persons making it. 14. A division bench of Himachal Pradesh High Court in a decision rendered in the case of Smt. Lila Wati and Others vs. Paras Ram and Others, AIR 1977 H.P. 1 has held that a partition between the coparceners might be partial either in respect of the property or in respect of the persons making it. It was further held that it is open to the members of a joint family to make a division and severance of interest in respect of a part of the joint estate while retaining their status as a joint family and holding the rest as the properties of a joint and undivided family. 15. In the instant case, the same principle would apply in so far as the tank is concerned which belonged to the father and being held with three strangers. 16. The appellant claimed before the trial court that the parties were in actual possession of more than 20 cottahs of land but partition is sought only for 16 cottahs 9 chittaks of land. However, the defendant/appellant was unable to demonstrate on the basis of the documentary evidence that the property is over and above 16 cottahs 9 chittaks of land. The plaintiffs no. 1 to 3 are the legal heirs of Shanti Ranjan Naha, who was the eldest brother of plaintiffs no. 4 and 5 and the defendant. The four brothers, on the basis of the evidence on record, are entitled to one-fourth share in the suit property. 17. In this regard, we have taken into consideration the order passed by the trial court in rejecting the application under Order I Rule 10 of the Code of Civil Procedure, which order has attained its finality. Moreover, we have taken into consideration the fact that the left out property is not being exclusively held by the father of the parties. 18. On such consideration, we are of the view that suit is not bad for partial partition or for non-joinder of necessary parties. 19. In our view, the learned trial judge, on proper appreciation of the evidence and on correct understanding of the law, has declared the shares while passing the preliminary decree. 20. With the aforesaid observations, the appeal fails and the same is dismissed. 21. We have been informed that the partition commissioner appointed by the trial court has filed the final report. 20. With the aforesaid observations, the appeal fails and the same is dismissed. 21. We have been informed that the partition commissioner appointed by the trial court has filed the final report. It appears that the learned trial judge accepted the report of the partition commissioner and has ordered that the final decree be drawn up. 22. However, by reason of the order passed by a coordinate bench of this court, the final decree could not be given effect to in view of the pendency of the appeal arising out of the preliminary decree. Now, when the appeal is dismissed, the trial court is requested to draw up the final decree as expeditiously as possible, if not already drawn up. 23. There will be no order as to costs. I agree - Uday Kumar, J.