High Court · 2012

The plaintiffs instituted the aforesaid suit prayed for declaration that the land covered by settlement survey Dag Nos.5247, 5248 and 5249, Decennial Ma hal Taluk Aladal Taluk No.14886/197 and Afzal Taluk No.14779/90 in Karimganj Tow n, in the District and PS-Karimganj, with the boundary given in the schedule to the plaint, as joint family properties of the plaintiffs; for declaration that t hree gift deeds dated 11.02.1983 (Ext.-A), 11.02.1983 (Ext.-B) and 15.06.1983 (E xt.-C), executed by Ramesh Chandra Banik in favour of Sambhu Nath Banik, Sushil Kumar Banik and Renu Bala Banik, the defendant Nos.1, 2 and 3, respectively, are fake, fraudulent and inoperative and also for recovery of khas possession of th e land measuring 21… cubits X 4… cubits as mentioned in the said schedule, upon eviction of the defendants and also for confirmation of possession in respect of the remaining land of their, being 1/5th share of the suit land. It was contend ed in the plaint that Radha Ballav Banik, the father of the plaintiffs and profo rma defendant No.7 and father-in-law of the defendant No.3, purchased the suit l and by Exts.-1 and 2 sale deeds, both dated 11.11.1938, which property, after th e death of their father in the year 1944 devolved on them and was looked after b y the eldest son, namely, Ramesh Chandra Banik, husband of the defendant No.3 be ing the Karta, who, however, before his death in the year 1983 executed the afor esaid three gift deeds (Exts.-A, B and C in favour of the defendant Nos.1, 2 and 3, respectively), though the plaintiffs are entitled to their share over the su it land, the same being the ancestral property. In the plaint it has been conten ded that the plaintiffs could know about the execution of the said registered de eds of gift on 22.08.1984. During pendency of the suit the plaintiffs filed appl ication seeking amendment of the pleadings in the plaint, which was allowed vide order dated 26.11.1987. By such amendment the prayer for the declaration that t he plaintiffs have preferential right to purchase, as envisaged by Section 22 of the Hindu Succession Act, 1956, the property which was transferred by way of th e aforesaid gift deeds.

3. The defendant Nos.1, 2 and 3 have filed their joint written statement. I n the written statement, though they have denied the contention of the plaintiff s that the suit property was the self acquired property of Radha Ballav Banik, t heir predecessor-in-interest, in paragraph 13 the defendants, however, have admi tted that the suit land belonged to Radha Ballav Banik, their predecessor-in-int erest. The defendants further have pleaded that the suit land, however, fell in the share of Ramesh Chandra Banik, the eldest son of Radha Ballav Banik, by virt ue of amicable partition and thereafter Ramesh Chandra Banik gifted the suit lan d in favour of the defendant Nos.1, 2 and 3 by executing the registered deeds of gift being Exts.-A, B and C. On the basis of the pleadings of the parties, the learned Civil Judge fr

4. amed the following issues for determination:- Has the plaintiff any cause of action for the suit? (i) Is the suit property valued and stamped? (ii) Whether the three deeds of gift dated 11.02.1983 executed by Ramesh Chan (iii) dra Banik in favour of defendant Nos.1, 2 and 3, are collusive, inoperative and void? (iv) Additional Issue (v) indu Succession Act, 1956? Whether the plaintiffs have preferential right under Section 22 of the H Whether the plaintiff is entitled to get a decree as claimed?

5. While the plaintiffs examined two witnesses and proved 16 documents, the defendants have also examined two witnesses and also proved certain documents. The Trial Court upon appreciation of the evidences on record answered the issue Nos.(i) and (ii) in favour of the plaintiffs but dismissed the suit of the plain tiffs as issue Nos.(iii) and (iv) were decided against them. During pendency of the suit, the defendant Nos.1, 2 and 3, namely, Sushil Kumar Banik, Sambhu Nath Banik and Renubala Banik died and their heirs were brought on record.

6. Being aggrieved the plaintiffs preferred Title Appeal No.2/1999 in the C ourt of the learned District Judge at Karimganj, which has been dismissed vide j udgment and decree dated 30.06.2001, affirming the judgment and decree passed by the Trial Court. Hence the present appeal by the plaintiffs. This appeal was admitted for hearing vide order dated 07.12.2001 on the

7. following substantial question of law:- Whether occupation of separate shop room by the Coparceners raises a legally per missible presumption as drawn by the learned courts below that there was partiti on although factum of partition of the property delineating and specifying share of coparceners were not proved? During the course of hearing of the appeal on the aforesaid subs tantial question of law as formulated, based on the submissions advanced by the learned counsel for the parties, this Court yesterday i.e. on 26.11.2012 framed the following substantial question of law:- Whether the plaintiffs/appellants have preferential right under Section 22 of th e Hindu Succession Act, in case, it is found that the property left behind by Ra dha Ballav Banik was amicably partitioned and the same covered by Exhibits-A, B and C gift deeds fell in the share of Ramesh Ch. Banik? The appeal, therefore, as agreed to by the learned counsel for t he appearing parties, has been heard on the aforesaid two substantial questions of law.

8. I have heard Mr. G.N. Sahewalla, learned Sr. counsel for the appellants/ plaintiffs and Mr. N. Choudhury, learned counsel appearing for the principal res pondents, who are the heirs of original defendant Nos.1, 2 and 3.

9. It has been contended by Mr. Sahewalla, learned Sr. counsel for the appe llants that it is evident from the pleadings in the written statement filed by t he defendant Nos.1, 2 and 3 that they have admitted the plaintiffs’ case that th e suit property originally belonged to their predecessor-in-interest, namely, Ra dha Ballav Banik and hence after the death of Radha Ballav Banik the property de volved on three plaintiffs, apart from the husband of the defendant No.3 and the proforma defendant No.7, they being all brothers. The learned Sr. counsel, ther efore, submits that in the absence of any proof relating to the amicable partiti on of the property amongst the brothers, as pleaded by the defendant Nos.1, 2 an d 3 in the written statement, each of the brothers would inherit 1/5th share of the suit property. The learned Sr. counsel submits that Ramesh Chandra Banik, th e eldest brother, who is the husband of defendant No.3, during his lifetime and just before his death has transferred 360 cubits of land, which is equivalent to 1 jasti 4 rekh (approx.), which is again equivalent to 8 rekh, in favour of the defendant Nos.1, 2 and 3 by executing three gift deeds being Exts.-A, B and C, which Ramesh could not have done there being no partition of the joint family pr operty, as each of the heirs would have the right, title and interest in every i nch of the undivided property. The learned Sr. counsel, therefore, submits that the gift deeds executed by Ramesh Ch. Banik cannot confer any right, title and i nterest on the predecessor-in-interest of the principal respondents, namely, the original defendant Nos.1, 2 and 3, the inherited land having not been partition ed. Mr. Sahewalla further submits that even if there was an amicable partition o f the land originally belonged to Radha Ballav Banik, the predecessor-in-interes t of the plaintiffs and the defendant No.3 and proforma defendant No.7, the plai ntiffs being the heirs, in view of Section 22 of the Hindu Succession Act, they have the preferential right of purchase, before Ramesh Ch. Banik transferred the right over the property in favour of an outsider, namely, the original defendan t Nos.1, 2 and 3. The learned Sr. counsel, therefore, submits that the substanti al questions of law may accordingly be answered by setting aside the judgments a nd decrees passed by the Courts below, which according to the learned Sr. counse l was passed based on the evidence relating to the partition of the family busin ess, not the landed property left behind by Radha Ballav Banik. Mr. Choudhury, learned counsel appearing for the principal respondents, 10. on the other hand, supporting the judgments and decrees passed by the Courts bel ow, has submitted that both the Courts below have recorded the concurrent findin g of fact relating to the amicable partition of the property left behind by Radh a Ballav Banik, amongst the 5(five) brothers and there being no perversity in re cording such finding, the same may not be disturbed in second appeal. Referring to the deposition of PW-1, during cross-examination, which has been noticed by b oth the Courts below, while recording the finding relating to the amicable parti tion, Mr. Choudhury submits that the PW-1, who is the plaintiff No.1, has depose d that all the 5(five) brothers are living separately for about 10(ten) years ov er their respective lands by constructing their dwelling houses, apart from the separation of family business amongst all the 5(five) brothers. The learned coun sel further submits that it is evident from the pleaded case of the plaintiffs a s well as the evidence adduced by them that vide Exts.-1 and 2 sale deeds, Radha Ballav Banik, predecessor-in-interest of the plaintiffs, defendant No.3 and pro forma defendant No.7 purchased altogether 1 powa 1 jasti 5 pon of land, which is equivalent to 32.25 rekh comprised in 4(four) different Taluks, namely, 14886, 14779, 14780 and 14842, but the plaintiffs have instituted the suit in respect o f the land comprised in Taluk Nos.14886 and 14779 only leaving aside the other l and comprised in Taluk Nos.14780 and 14842. Mr. Choudhury, therefore, submits th at it is evident therefrom that Radha Ballav Banik had other land apart from the suit land. It has also been submitted that the aforesaid admission by the plain tiff No.1 during cross-examination, that all brothers are living separately for about 10(ten) years over the respective land and also the fact that Radha Ballav Banik had more land than the suit land, gives credence to the defendants’ plead ed case of amicable partition of the property left behind by Radha Ballav Banik, amongst the 5(five) brothers. The learned counsel, therefore, submits that ther e is no perversity in recording the finding by the Courts below about the amicab le partition of land left behind by Radha Ballav Banik.

11. Relating to the second substantial question of law i.e. the claim of the plaintiffs under Section 22 of the Hindu Succession Act, it has been submitted by the learned counsel that in the original plaint filed by the plaintiffs, thou gh they have admitted that they came to know about the existence of the gift dee ds being Exts.-A, B and C on 22.08.1984, they never claim the preferential right under Section 22 of the said Act, which prayer was introduced by way of amendme nt, which was allowed on 26.11.1987. Referring to Article 97 of the Schedule to the Limitation Act, it has been submitted by Mr. Choudhury that since the period of limitation for claiming such preferential right is 1(one) year from the date of execution of the deed, the suit of the plaintiffs in so far as it relates to the claim under Section 22 of the aforesaid Act is barred by time, even if the date of knowledge i.e. on 22.08.1984 is taken as the date of commencement of the period of limitation.

12. I have considered the submissions advanced by the learned counsel for th e parties and also perused the judgments and decrees passed by the Courts below. To satisfy myself as to whether there is any perversity in recording the findin g about amicable partition of the property left behind by Radha Ballav Banik, I have gone through the evidences adduced by the parties, both oral and documentar y.

13. Both the Courts below have recorded concurrent finding of fact of the am icable partition of the property amongst the 5(five) brothers, namely, the three plaintiffs, husband of the defendant No.3 and the proforma defendant No.7, on t he basis of the evidences adduced by the parties. Both the Courts below have als o noticed the deposition of PW-1 (plaintiff No.1), during cross-examination, to the effect that all the brothers are living separately on different lands by con structing dwelling houses thereon for about 10(ten) years and the original famil y business has also been partitioned and they are doing their business in differ ent shop rooms. As noticed above, to satisfy myself about the perversity, if any , in recording such finding, I have gone through the evidences adduced. It is ev ident from the evidences adduced that the PW-1 during the cross-examination has admitted that all the brothers are living separately on different lands by const ructing dwelling houses and their family business has also been partitioned and all the brothers are doing business separately.

14. Mr. Sahewalla, learned Sr. counsel submits that such deposition of PW-1 during cross-examination would not prove the amicable partition as pleaded by th e defendants in the written statement, as that land may not be the part of the i nherited property, which originally belonged to Radha Ballav Banik. Such content ion of the plaintiffs cannot be accepted as there is absolutely no pleading in t he plaint that the plaintiffs have other self acquired property over which they constructed their respective houses. On the other hand PW-1 in his evidence clai med that they are living on the suit property jointly. The plaintiffs have suppr essed the fact of living separately on different lands by all the brothers by co nstructing dwelling houses. That apart, according to the plaintiffs themselves R adha Ballav Banik purchased total 1 powa 1 jasti 5 pon which is equal to 32.25 r ekh of land vide two sale deeds both dated 11.11.1938 (Exts.-1 and 2). The said land, comprised in 4(four) Taluks, namely, 14886, 14779, 14780 and 14842. The su it land as described in the schedule to the plaint is measuring only about 8 rek h, which is equal to 1 jasti 4 rekh, which is almost 1/4th of the total property purchased by Radha Ballav Banik during his lifetime and inherited by all the 5( five) brothers. The plaintiffs are silent about the remaining land i.e. about 24 .25 rekh, which was purchased by their father Radha Ballav Banik vide Exts.-1 an d 2.

15. Having regard to the aforesaid position and also the evidence of the PW- 1 during cross-examination, it, therefore, appears that the Courts below have ri ghtly recorded the finding relating to the amicable partition of the property am ongst the 5(five) brothers, which gives the credence to the defendants’ pleaded case of amicable partition. The first substantial question of law is accordingly answered.

16. This leads to the consideration of the second substantial question of la w formulated on 26.11.2012, relating to the claim of preferential right under Se ction 22 of the Hindu Succession Act.

17. Article 97 of the Schedule to the Limitation Act, 1963 provides that the limitation to enforce the right of pre-emption, whether the right is founded on law or general usage or on special contract, is one year from the date when the purchaser takes under the sale sought to be impeached, physical possession of t he whole or part of the property sold, or, where the subject-matter of the sale does not admit of physical possession of the whole or part of the property, when the instrument of sale is registered. In the instant case it is an admitted pos ition of fact, which is also evident from the prayer for recovery of khas posses sion made in the plaint, that the original defendant Nos.1, 2 and 3 were in poss ession of the property immediately after execution of the aforesaid gift deeds d ated 11.02.1983 and 15.06.1983 (Exts.-A, B and C). The plaintiffs have also plea ded in the plaint that they came to know about the said gift on 22.08.1984. The plaintiffs for the first time introduced the claim of preferential right under S ection 22 of the Hindu Succession Act, which is in the nature of pre-emption, by way of amendment, which was allowed on 26.11.1987, i.e. after 1(one) year even from the date of knowledge. Hence the suit relating to the claim of preferential right under Section 22 is barred by time. The second substantial question of la w is also accordingly answered.

18. al and hence the same is dismissed. No costs. In view of the aforesaid discussion, I do not find any merit in the appe

19. The Registry is directed to send down the records.