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2022 DIGILAW 186 (TRI)

Surajit Majumder v. Manojit Majumder

2022-04-11

ARINDAM LODH

body2022
JUDGMENT Arindam Lodh, J. - This is a second appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short, 'CPC') challenging the legality and validity of the judgment and decree dated 13.12.2018, passed by learned District Judge, Unakoti Judicial District, Kailashahar, in connection with Title Appeal No. 12 of 2018, arising out of judgment and decree dated 18.05.2018, passed by learned Civil Judge (Sr. Division), Unakoti Judicial District, Kailashahar, in connection with Title Suit No. 18 of 2017, whereby and whereunder the learned appellate Court has affirmed the judgment and decree dated 18.05.2018, passed by the learned Civil Judge (Sr. Division), Court No. 1, Unakoti Judicial District in connection with Title Suit No. 18 of 2017. 2. The appeal is mainly concerned with the question as to whether the statement of one of the co-owners in an earlier suit that he had no claim over the property of his mother amounts to disclaimer conferring title upon other co-owners. 3. Facts of the case, in brief, are that, one Late Gita Rani Majumder (here-in-after referred to as 'Gita Rani') was the owner and possessor of the suit land. She was the mother of both the plaintiffs and the defendant of the present suit. After her death, one Nani Gopal Ghosh(brother of late father of Gita Rani) filed T.S. No. 16 of 2012 before the learned Civil Judge(Sr. Division) for a declaration claiming that the suit land though recorded in the name of Gita Rani, but, the actual owner of the suit land was Late Akhil Chandra Ghosh who purchased the suit land in the name of Gita Rani, being his daughter, as benamder. 4. The respondent-defendant and plaintiff-appellants of the present case were impleaded as defendants in TS No. 16 of 2012 and the defendants by filing written statements, contested the said suit instituted by Nani Gopal Ghosh as plaintiff, but, while recording evidence in connection with case No. T.S. 16 of 2012, Sri. Manojit Majumder, the defendant of the present suit stated that he had no claim over the property of his mother, i.e. the suit land and supported the versions of Nani Gopal Ghosh that Late Akhil Chandra Ghosh was the actual owner of the suit land and Late Gita Rani was only a benamder. 5. Manojit Majumder, the defendant of the present suit stated that he had no claim over the property of his mother, i.e. the suit land and supported the versions of Nani Gopal Ghosh that Late Akhil Chandra Ghosh was the actual owner of the suit land and Late Gita Rani was only a benamder. 5. The said suit (T.S. No. 16 of 2012) filed by Nani Gopal Ghosh was dismissed and thus, the ownership of Late Gita Rani over the suit land was confirmed and approved by the learned Court. Learned trial Judge while dismissing the suit at para 22 of the judgment held that: 'Under the aforesaid scenario, I am of the considered opinion that all rights, title and interest of intermediary over the suit property stand extinguished on and from the date of vesting to the Government and fresh right created under statute by allotting finally published khatian in favour of Gita Rani Majumder, the predecessor of defendants No. 1(b) to 1(e) and nothing remained with intermediary.' 6. The main foundation for seeking declaration of the suit property is that whether the suit property exclusively belongs to the plaintiffs, since their brother Manojit Majumder, the defendant of the present suit, had abandoned his claim or, in other words, disclaimed his share over the suit property left behind by their mother late Gita Rani. In support of this assertion, the plaintiffs had relied upon the statements made by the defendant in T.S. No. 16 of 2012 instituted by Nani Gopal Ghosh, as I stated earlier. 7. According to the plaintiffs, the plaintiffs had served a notice upon the defendant-respondent asking him whether he still had possessed the same view what he had stated in T.S. No. 16 of 2012. But, since the defendant did not respond to the said notice, the plaintiffs came to the conclusion that the defendant had been possessing the same view in regard to his view he expressed in T.S. No. 16 of 2012 and such conduct of the defendant tantamount to disclaimer of his right over the suit land left behind by their mother, Gita Rani. 8. The defendant appearing and contesting the present suit instituted by the plaintiffs denied all the statements made by the plaintiffs in their plaint. 8. The defendant appearing and contesting the present suit instituted by the plaintiffs denied all the statements made by the plaintiffs in their plaint. The defendant stated that he being one of legal hairs of late Gita Rani had equal share over the suit land as those of the plaintiffs. 9. After exchange of pleadings, the learned trial Court framed the following issues: '(i) Whether the suit is maintainable? (ii) Whether there is any cause of action? (iii) Whether the defendant disclaimed his right title and interest in respect of the suit property in TS 16 of 2012? (iv) Whether the defendant executed any Power of Attorney in favour of the plaintiff to look after the property left by their mother? (v) Whether the plaintiff is entitled for a decree as prayed for? (vi) Whether the plaintiff is entitled for any other relief/reliefs?' 10. Learned trial Court after hearing the parties to the lis and considering the evidence and materials on record, decided issue Nos. (i), (ii), (iii), (v), and (vi) against the plaintiffs, i.e. the appellants herein, and issue No. (iv) decided in favour of the defendant, and ultimately, dismissed the suit of the plaintiffs. 11. Challenging the said judgment and decree, the plaintiffs had preferred first appeal before the Court of learned District Judge, Unakoti Judicial District, Kailashahar. The first appellate Court upon hearing the parties dismissed the appeal without disturbing the findings returned by the learned trial Judge. 12. Being aggrieved by and dissatisfied with the said judgment and decree, the plaintiffs have preferred the instant second appeal before this Court. 13. At the time of admission of this appeal, following substantial question of law has been formulated: '(1) Whether findings given by the Courts below while deciding the core issue involved in the suit that whether the respondent herein has disclaimed/waived/relinquished his right to the property of his mother in dispute, is perverse and based on evidence?' At the time of arguments, on request of learned senior counsel appearing for the appellants, the following substantial question of law has been formulated: 'Whether right of inheritance can be relinquished by making admission in the cross-examination?' Both the above substantial questions of law have been clubbed and taken up together for convenience and effective hearing of the present controversies raised in this second appeal. 14. I have heard Mr. D.K. Biswas, learned senior counsel, assisted by Mr. 14. I have heard Mr. D.K. Biswas, learned senior counsel, assisted by Mr. S.S. Debnath, learned counsel appearing for the appellants as well as Mr. D. Bhattacharjee, learned senior counsel, assisted by Mr. J. Debbarma, learned counsel appearing on behalf of the respondents. 15. Mr. Biswas, learned senior counsel appearing for the plaintiff-appellants(here-in-after referred to as the 'plaintiffs') by filing written argument submitted that, 'succession' is not an inalienable right, and can be moulded, altered or relinquished, and the act of release or relinquishment can be done in favour of other coparceners without any registered instrument even. In this regard, learned senior counsel has pressed into service the following judgments:- I. Kuppuswami Chettiar v. A.S.P.A. Arumugam Chettiar & Another, AIR 1967 SC 1395 (Para 6), II. Om Prakash v. Shanti Swaroop, 2013 Legal Eagle (DEL) 3172 (Para 19), III. Akhaj v. Arjun Koeri, 1952 AIR(PAT) 67 (para 10). 16. To emphasize, Mr. Biswas, learned senior counsel took the Court through the statements of the defendant, Manojit Majumder made in the earlier suit, i.e. T.S. No. 16 of 2012, wherein he stated that he had no claim over the suit property of that suit. The suit property of the present suit is similar and identical to the suit as that of T.S. No. 16 of 2012, which was decreed in favour of Gita Rani Majumder, the mother of the plaintiffs and the defendant, as the absolute owner and possessor of the suit land. 17. Learned senior counsel appearing on behalf of the plaintiffs tried to persuade this Court that since the defendant did not respond to the notice served upon him as stated in the preceding paragraphs, he disclaimed his joint ownership or co-ownership of the suit property. 18. To resist the aforesaid submission of Mr. Biswas, learned senior counsel for the plaintiffs, Mr. D. Bhattacharjee, learned senior counsel appearing for the defendant-respondent contended that a statement made in a suit should be read as a whole and no statement is tenable in law which has no statutory support. Learned senior counsel contended that the statement of the defendant in the earlier suit did not amount to disclaimer conferring title upon the plaintiffs. 19. I have given my thoughtful and incisive consideration to the submissions advanced by learned counsels appearing for the parties and perused the records. 20. Learned senior counsel contended that the statement of the defendant in the earlier suit did not amount to disclaimer conferring title upon the plaintiffs. 19. I have given my thoughtful and incisive consideration to the submissions advanced by learned counsels appearing for the parties and perused the records. 20. Admittedly, in view of the judgment passed in T.S. No. 16 of 2012, Gita Rani Majumder, the mother of the plaintiffs and the defendant, became the rightful owner and possessor of the land in question of the present suit. Admittedly, Gita Rani Majumder died intestate and in that case, the entire property owned by her would be devolved upon her legal heirs in consonance with Section 15(1)(a) of the Hindu Succession Act, 1956, in the context of the case at hand, which reads as under: '15. General rules of succession in the case of female Hindus.--(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16-- (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) xxx xxxx xxxx xxxx xxxx xxxx; (c) xxx xxxx xxxx xxxx xxxx xxxx; (d) xxx xxxx xxxx xxxx xxxx xxxx; (e) xxx xxxx xxxx xxxx xxxx xxxx;.' 21. Now, question revolves around, whether a mere statement of co-owner or joint owner that he has no claim over the property of his/her predecessor can disentitle him from his legitimate and lawful right as conferred by statute. 22. In the earlier suit, i.e. in T.S. No. 16 of 2012, the defendant simply stated that he had no claim over the property of his mother, Gita Rani. It is not on record under which context or under which circumstances, the defendant had stated so. A statement cannot be read in isolation. The entire gamut of one's statement has to be understood from the entire context. More importantly, what is apparent from the record of T.S. No. 16 of 2012 that the defendant had made the said statement when even his mother's right, title and interest over the suit land was under cloud. I have taken note of the submission of Mr. The entire gamut of one's statement has to be understood from the entire context. More importantly, what is apparent from the record of T.S. No. 16 of 2012 that the defendant had made the said statement when even his mother's right, title and interest over the suit land was under cloud. I have taken note of the submission of Mr. Biswas, learned senior counsel appearing on behalf of the plaintiffs that in course of recording evidence, the defendant admitted that both the statements made in the earlier suit as well as the statement made in the present suit are correct. In this situation, it will be very difficult, rather, impermissible in law to rely one part of the admission ignoring the other. 23. Here, I may profitably refer the case of Dudh Nath Pandey v. Suresh Chandra Bhattasali, reported in AIR 1986 SC 1509 where Hon'ble Supreme Court held that, 'The admission must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other'. 24. Ownership or a title to land cannot pass by a mere statement or admission when the Statute prescribes specific modes of transfer of one's property. Transfer of immovable property is guided and governed by the prescriptions of law as are embodied in the Transfer of Property Act, 1882 and the Registration Act, 1908. 25. I have perused the judgments as referred to by learned senior counsel appearing on behalf of the plaintiffs. Learned senior counsel has mainly pressed into service the judgment of the Hon'ble Supreme Court in Kuppuswami Chettiar (supra) only to explore the meaning of, what is release/relinquishment, as explained at para 6 of the said judgment, which is extracted hereunder:- '6. Counsel next submitted that a release can only enlarge an existing title of the releasee, and there can be no release in favour of a release who has no interest in the property. He relied on the following observation in Hutchi Gowder v. Bheema Gowder [ (1959) 2 MLJ 324 , 337] 'A release deed can only feed title but cannot transfer title' and another observation in S.P. Chinnathambiar v. V.R.P. Chinnathambiar [ (1953) 2 MLJ 387 , 391] 'Renunciation must be in favour of a person, who had already title to the estate, the effect of which is only to enlarge the right. Renunciation does not vest in a person a title where it did not exist...'. Now, it cannot be disputed that a release can be usefully employed as a form of conveyance by a person having some right or interest to another having a limited estate, e.g., by a remainderman to a tenant for life, and the release then operates as an enlargement of the limited estate. But in this case, we are not concerned with a release in favour of the holder of a limited estate. Here, the deed was in favour of a person having no interest in the property, and it could not take effect as an enlargement of an existing estate. It was intended to be and was a transfer of ownership. A deed called a deed of release can, by using words of sufficient amplitude, transfer title to one having no title before the transfer. The cases relied upon by counsel are not authorities for the proposition that the operative words of a release deed must be ignored. In S.P. Chinnathambiar case [ (1953) 2 MLJ 387 , 391], the document could not operate as a transfer, because a transfer was hit by Section 34 of the Court of Wards Act, and viewed as a renunciation of a claim, it could not vest title in the release. In Hutchi Gowder v. Bheema Gowder [ (1959) 2 MLJ 324 , 337] the question was whether a covenant of further assurance should be enforced by directing the defendant to execute a release deed or a deed of conveyance, and the Court held that the defendant should execute a deed of conveyance. These decisions do not lay down that a deed styled a deed of release cannot, in law, transfer title to one who before the transfer had no interest in the property.' 26. I am at a loss to understand how the above enunciation of principle would help the plaintiffs. More so, from the above principle, it comes to light that a person who has not acquired any interest in the property at the time he was making the deed of release in favour of a releasee cannot, in law, transfer title. That apart, a covenant of assurance of transferring any property must be followed by the execution of appropriate deed of conveyance as prescribed by the statutes aforestated; whichever style or nomenclature such a deed would be. That apart, a covenant of assurance of transferring any property must be followed by the execution of appropriate deed of conveyance as prescribed by the statutes aforestated; whichever style or nomenclature such a deed would be. 27. In the case in hand also, as I said earlier, the defendant did not acquire any title over the suit land when he stated in T.S. No. 16 of 2012 that he had no claim over his mother's property. 28. Now, coming to the case of Om Prakash (supra), it is found that the suit land was allotted in favour of the respondent/defendant (Shanti Swarup) by executing a deed of conveyance issued by the Regional Settlement Commissioner of the Government. It was further observed by the Court that the appellant/plaintiff and the mother of both the appellant/plaintiff and the respondent/defendant had given their no objection to the amount of compensation of their share being adjusted towards the suit property. Furthermore, the appellant/plaintiff i.e. Om Prakash and the mother, Smt. Dhanni Bai had filed affidavits confirming that they had already given their irrevocable consent for adjustment of their share of claim compensation towards the costs of the property and that they had no objection if the Lease/Conveyance/Transfer Deed of the property was executed in the exclusive name of the respondent/defendant as they had no interest in the property nor shall claim any interest therein. The appellant/plaintiff and Smt. Dhanni Bai also wrote two letters dated 14.12.1964 and 28.12.1964 to the office of the Regional Settlement Commissioner to the effect that they had no objection if the amount of their share is adjusted towards the cost of the suit property and the sale deed issued in favour of the respondent/defendant (Shanti Swarup). Based on that clear and unequivocal statements, the Regional Settlement Commissioner transferred the land exclusively in the name of respondent/defendant (Shanti Swarup) by executing a deed of conveyance in terms of law applicable for such transfer. In that circumstance, learned Single Judge of the Delhi High Court came to the conclusion that by such acts and conducts the appellant/plaintiff i.e. Om Prakash had disclaimed his share over the suit property. 28.1. Having considered the aforesaid judgment, it appears that the facts of the instant case, are quite different from the facts of the case of Om Prakash (supra). 28.1. Having considered the aforesaid judgment, it appears that the facts of the instant case, are quite different from the facts of the case of Om Prakash (supra). Here, as a matter of reiteration, the defendant has merely stated that he had no claim over her mother's property and that too when he acquired no right to claim. In the present suit, he has categorically stated during his evidence that as a legal heir he is entitled to his share over the suit property left behind by Smt. Gita Rani, his mother. 29. In the case of Akhaj (supra), the Division Bench of Patna High Court has observed that the dispute arose between the plaintiffs and the defendants was settled by an arbitrator/panchayati and the arbitrator divided the property between them and the plaintiffs themselves in their plaint accepted the panchayati as valid and binding. In that circumstance, the Division Bench of Patna High Court held that 'The plaintiffs cannot now be permitted to resile from the position they took in the plaint as well as in the first two courts'; and finally came to the conclusion that there was '.......no reason why the panchayati should not be regarded as a fair and honest settlement and as such binding on the estate, and therefore on the plaintiffs.'. 30. In my opinion, none of the above cases would be of any assistance to support the case of the plaintiffs of the present suit. 31. The offshoot of the aforesaid discussions on both factual and legal aspects, in the opinion of this Court, the defendant had never disclaimed his right over the suit property of his mother. More so, the settlement made by the defendant in T.S. No. 16 of 2012 cannot be regarded as a disclaimer. 32. A disclaimer means any writing which disclaims, refuses, renounces, or disclaims any interest that would otherwise be taken by a beneficiary. In Black's Law Dictionary, the word 'disclaimer' is defined as 'The repudiation or renunciation of a claim or power vested in a person or which he had formerly alleged to be his. The refusal, or rejection of an estate or right offered to a person. The disavowal, denial, or renunciation of an interest, right, or property imputed to a person or alleged to be his. Also the declaration, or the instrument, by which such disclaimer is published. The refusal, or rejection of an estate or right offered to a person. The disavowal, denial, or renunciation of an interest, right, or property imputed to a person or alleged to be his. Also the declaration, or the instrument, by which such disclaimer is published. The rejection, refusal, or renunciation of a claim, power, or property. I.R.C. sets forth the conditions required to avoid gift tax consequences as the result of a disclaimer.' 33. Disclaimer must be unequivocal and his intention to disclaim a property must be clear and unambiguous. Furthermore, it has to be evident from one's acts and conducts that he has disclaimed his right over a property as co-owner. In my opinion, even if there are elements of disclaimer, in that case also, to confer title, such disclaimer has to be followed and executed by a deed of disclaimer/relinquishment/release/sale/gift, etc. in consonance with the relevant provisions of the Transfer of Property Act, 1882 and the Registration Act, 1908 irrespective of its nomenclature to effectuate the transfer in favour of other co-owners. In the case in hand, the above essential requirements are found to be absent. (emphasis supplied) 34. In the light of the above, the statements made in the previous suit, i.e. T.S. No. 16 of 2012 or any sort of statements or admission in the present suit as well, by no stretch of imagination be said to be a waiver/relinquishment of the defendant's right of inheritance or his co-ownership over the suit property left behind by late Gita Rani Majumder, the mother of both the plaintiffs and defendant. 35. Accordingly, the substantial questions of law as formulated by this Court have been answered and the appeal is dismissed being devoid of merit. 36. In the result, the judgments and decrees passed by the learned Courts below are hereby affirmed and upheld. 37. Pending applications, if any, shall also stand disposed. Send down the LCRs.