Smt. Manka Bala Dasip alias Manika Bala v. Smt. Sabur Bala Devi

Gopal Chandra Rakshit were the real owner of schedule-B land and Smt. Shankari Bala Dasi was simple a name lender and the plaintiffs, after the death of Gopal chandra Rakshit stopped into his shows inheriting half share and the plaintiffs are entitled to half share in the suit property as also entitled to have the renewal of lease jointly with the defendants with respect to schedule C property. The further relief was for declaration of half share of the plaintiff in schedule-C and partition of the suit house and finally decree be also awarded. The suit was decreed in favour of the appellant/plaintiff by the judgment dated 25.03.1988 and decree signed on 11.04.1986. In the plaint it was alleged that the case of the appellant is that that in the year 1959 Gopal Chandra Rakshit died in the suit house state of jointness with Ram Komal Rakshit leaving behind his widow (plaintiff no.1) and four sons (plaintiff non. 2 to 5) and four daughters (plaintiff nos. 6 and 10 to 12). Ram Komal Rakshit died in the year 1966 in the name suit house leaving behind Shankari Bala Dasi, who-died in the year 1976, second wife defendant no.1 two sons (defendant no.2 and 3) and five daughters (defendant nos.4 to 9) Aforesaid defendants no.1 3 Second Appeal No.32 of 1992(R) to 3 became dishonest and in order to grab the suit property exclusively applied for renewal of the lease in the name of Shankari Bala Dasi and Sabur Bala, to the Khas Mahal authorities giving false statements. The plaintiffs appeared and filed their objections, which was inquired into and it was found that the plaintiffs had right and possession over the suit house. Inspite of the inquiry report in favour of the plaintiffs, they were advised to get their half title declared in the suit property and hence, the necessary for the suit. A relief was sought for declaration that two brothers, namely Ram Komal Rakshit and Gopal Chandra Rakshit were the real owners of the schedule B land and Smt. Shankari Bala Dasi was a Benamidar and the plaintiffs, after the death of Gopal Chandra Rakshit stopped into his shows inheriting half share. Relief for carving out half share of the plaintiff in the suit property by appointment of survey knowing pleader commissioner was also sought. The case of the defendants is that the case of the Defendant-appellants, briefly stated that is that the plaintiff respondents has no cause of action. The suit was barred under the provisions of specific relief Act and the law of limitation. Ram Komal Rakshit migrated to Hazaribagh in or about the year 1928 and started to reside with his brother in law Nitai Sen. After some time, he started his sweetmeat shop of his own at Lepo Road, Hazaribagh and Gradually developed his business. In course of the time he started a second shop in the court compound at Hazaribagh, Much later, Gopal Chandra Rakshit came to Hazaribagh from Banaras and started living with his brother-in-law. After some time he was turned out from that place and then Ram Komal Rakshit gave him shelter in his tenanted house. It was denied that Gopal Chandra Rakshit and Ram Komal Rakshit ever set up any joint business. Gopal Chandra Rakshit was mentally retarded person and was not in a position to earn his own livelihood, owing to pity, sympathy an affection, 4 Second Appeal No.32 of 1992(R) Ram Komal gave him shelter. The business was set up exclusively by Ram Komal Rakshit with his hard earned money. It was falsely alleged Ram Komal Rakshit and Gopal Chandra Rakshit were managing the business as tenants in common and they had half share in the business, It was Ram Komal Rakshit, who had purchased the land in the name of his wife Shankari Bala Dasi and had constructed building upon it. The property was exclusively the self-acquired property of Ram Komal Rakshit. Gopal Chandra Rakshit had no right or authority over the same. Any reference to the alleged written statement by Ram Komal Rakshit indicate that the plaintiffs had fabricated and forged some documents with the idea of setting up a false claim. The alleged documents were forged and fabricated. Further case of the defendant-appellants is that application for renewal of the lease was made on behalf of Shankari Bala Dasi and the property was duly renewed in her name for the term of 30 years i.e. from 1.4.1948 to 31.3.1978 without any objection of or hindrance from any quarter. The allegation that Shankari Bala Dasi was a Benamidar was incorrect. It was totally incorrect to allege that the sales were affected by both the brothers through the said Benamidar whatever, the transactions were made till the year 1954, were affected solely and wholly by Ram Komal Rakshit and as the property stood in the name of his wife, the conveyance were executed and registered by his wife. It was further alleged that on 26.2.1954 Ram Komal Rakshit got executed a "Kath kewala" through his wife, in favour of one Panna Devi, wife of Balchand Seth, in order to secure funds for his declining business, in respect of the property including the land and building for Rs.20,000/- The period fixed in the Kath kewala for repayment was five years. As repayment could not be made by Ram Komal Rakshit, within the stipulated period, the kath kewala was confirmed after 5 years. later on, the situation improved in 5 Second Appeal No.32 of 1992(R) the family of Ram Komal Rakshit and as such, his two wives offered to utilize their personal resources including the ornaments, for the purpose of repurchasing the property on the condition that the property would be owned by them jointly and Rakshit would have no right to offer it and the agreement was arrived at in this connection with Panna Devi and the sale deed was executed and registration on 22.1.1968 on payment of the consideration money. As per the mutual agreement between two ladies, the sale deed was executed in the name of Shankari Bala Dasi, through the expenses were born by both of them jointly and equally. Thus, from

22.1.1962, the two wives of Ram Komal Rakshit because absolute owner of the property. From 1962 the property stood in the name of Shankari Bala Dasi. By mutual agreement it was decided to get the lease also renew in the name of Shankari Bala Dasi, Gopal Chandra Rakshit or his heirs never had any right, whatever, over any portion of the property in suit. The allegation that Gopal Chandra Rakshit died in state of jointness with Ram Komal Rakshit, was utterly false. The false claim and objections of the plaintiff-respondents was rightly rejected by the Khas Mahal Authorities, after necessary inquiry, prayer was made to dismiss the suit. This second appeal was admitted by the order dated

17.02.1994 on the following substantial question of law: (a) Whether learned lower appellate court has committed a grave error of law by allowing the appeal and reversing the judgment and the decree of the leraned trial court without meeting and considering reasonings of the learned trial court in support of its judgment? (b) Whether the judgment and decree of the learned lower appellate court appellate court has approached the case with a wrong legal angle and has discarded Ext.1, 2 and 3 on wholly irrelevant, extraneous and illegal consideration. inasmuch as the is vitiated On these law points, the learned counsel appearing for the appellants and respondents have addressed the Court and took the Court 6 Second Appeal No.32 of 1992(R) to the judgment of the learned trial court as well as the learned appellate court. Mr. Ayush Aditya, the learned counsel appearing for the appellants submits that Gopal Chandra Rakshit and Ram Komal Rakshit were own brothers and they were living jointly in the house in question. He submits that still in the same house the legal heirs/successors of Gopal Chandra Rakshit and Ram Komal Rakshit are residing. He submits that the property in question was purchased as Benami in the name of first wife of Ram Komal Rakshit, namely, Shankari Bala Dasi on

25.09.1945. He submits that the entire business was joint and the out of the proceeds of the said business the said property was purchased. In the year 1959, Gopal Chandra Rakshit died and in the year 1966 Ram Komal Rakshit died and pursuant to that, the legal heirs/successors of Ram Gopal Rakshit have filed the title suit. He further submits that in paragraph no.10 and 11 of the written statement filed by the defendants they have admitted that Ram Komal Rakshit has purchased the property in question in the name of Shankari Bala Dasi. He further submits that the learned trial court has considered the Exhibits-1,2 and 3 in the suit and has rightly interpreted those exhibits and thereafter it has been pleased to decree the suit in favour of the plaintiffs. He submits that exhibit-1 is sada agreement deed said to have been executed by Ram Komal Rakshit just a few days before the acquisition of the impugned property i.e. on 10.05.1946 in which he has independently acknowledged the acquisition of the said property on behalf of both the brothers. Exhibit-2 is the affidavit sworn by Nando Rakshit, the present lease holder and defendant no.8 in the court of the Executive Magistrate on

05.06.1984 wherein he has admitted that her father Ram Gopal Rakshit and uncle late Gopal Chandra Rakshit out of the proceeds of their joint business had purchased the land and kutcha house (in the dilapidated 7 Second Appeal No.32 of 1992(R) condition) of holding no.121 in four plots with an area of 0.55 decimals and holding no.143, a 63 measuring 0.03 decimals at Hazaribagh in the Benami name of her mother Shankari Bala Dasi and they came in joint possession over the same. She has also admitted the joint possession of both the brothers and after then, their heirs and further she has admitted that Gopal Chandra Rakshit and heirs and herself are the real and actual owners of the said house. Exhibit-3 is a letter stated to have been in the signature of Nando Rakshit, but scribed by some one else addressing therein to her Jethi Ma (aunt), who is no one else than the plaintiff no.1, the wife of Gopal Chandra Rakshit. He submits that the leraned trial court interpreted these three exhibits, has rightly come to the conclusion that there is jointness in the family and has directed to partition the property in 50% share of each. He further submits that the learned appellate court has reversed the finding of the learned trial court on the ground that so far the exhibit-1 is concerned the same was described by the appellate court on the ground that at that time the wife of Gopal Chandra Rakshit was also available at the time of acquisition of the land, but her name was not involved in the sale deed and that is why which does not sound good. He submits that Exhibit-2 described by the learned appellate court on the ground that the Advocate identifying the contents of the affidavit but has not identified and Nando Rakshit has been examined as D.W.12 and she emphatically denied to have executed any affidavit on that ground this has not accepted. He submits that the learned trial court has rightly interpreted these documents and thereafter has passed the order and these two law points are required to be answered in favour of the appellants. By way of referring section 115 of the Evidence Act, 1872, he submits that in view of the admission made in paragraph no.10 and 11 of the written statement of the defendants as well as the two documents Exhibit-1 and Exhibit-2 the principle of 8 Second Appeal No.32 of 1992(R) estopple will apply in light of section 115 of the Evidence Act and to buttress his argument, he relied in the case of “B.L. Sreedhar v. K.M. Munireddy”, reported in (2003) 2 SCC 355. Paragraph nos.12, 13, 14 and 15 of the said judgment are quoted herein below: “12. It would be appropriate to deal with the concept of estoppel which appears to be the basic foundation of the High Court’s conclusions in the background of the aforenoted factual conclusions.

13. Estoppel is a rule of evidence and the general rule is enacted in Section 115 of the Indian Evidence Act, 1872 (in short “the Evidence Act”) which lays down that when one person has by his declaration, act or omission caused or permitted another person to believe a thing to be true and to act upon that belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of thing. (See Sunderabai v. Devaji Shankar