Tripura High Court
Sri Sudhangshu Sarkar vs Smt Anju Rani Sarkar on 10 February, 2022
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
HIGH COURT OF TRIPURA
AGARTALA
RSA 39 of 2018
Sri Sudhangshu Sarkar
S/o Lt. Akhil Chandra Sarkar,
resident of Kariamura, South Badharghat,
P.S. - Amtali, Dist. - Tripura West.
-----Appellant(s)
Versus
1. Smt Anju Rani Sarkar
W/o. Sri Ajamil Sarkar,
resident of Matripally, P.O. - A.D. Nagar,
P.S. - Amtali, Dist. - West Tripura, Pin - 799003.
2. Smt Manju Sarkar
W/o. Sri Gopal Sarkar,
resident of arjan Ban, Masterpara,
P.S. - Melaghar, P.O.- Melaghar,
Dist.- Sepahijala, Tripura, Pin-
3. Smt. Ranju Sarkar
W/o. Sri Harendra Sarkar,
resident of Jamini Tiall, South Badharghat,
P.S. - Amtali, P.O. - A.D. Nagar, Dist. -
West Tripura, Pin - 799003.
4. Smt. Sanju Sarkar
W/o. Sri Manik Sarkar,
resident of Sabroom Town,
P.S. - Sabroom, P.O. - Sabroom,
Dist. - South Tripura, Pin - 799145.
5. Sri Himanshu Sarkar
S/o. Late Akhil Chandra Sarkar,
resident of Kariamura, South Badharghat,
P.S. - Amtali, P.O. - A.D. Nagar,
Dist. - West Tripura, Pin - 799003.
-----Respondent(s)
For Appellant(s) : Mr. S. M. Chakraborty, Sr. Adv.
Mr. S. Saha, Adv.
For Respondent(s) : Mr. T. D Majumder, Sr. Adv.
Mr. G. S. Bhattacharjee, Adv.
Date of hearing : 08.02.2022
Date of pronouncement : 10.02.2022
Whether fit for reporting : Yes
Page 2 of 14
HON'BLE MR. JUSTICE T. AMARNATH GOUD
Judgment & Order
This is an appeal under Section 100 of the CPC 1908 from the judgment and decree dated 03.12.2016 passed in case no. Title Appeal 65 of 2013 by the Additional District Judge, Court No.3, West Tripura, Agartala dismissing the appeal preferred against the judgment dated 27.09.2004 passed by the Civil Judge, Sr. Division (Court No.2), West Triprua, Agartala in TS (Part) 78 of 2003. [2] At the outset, the controversy that led to filing of the suit may briefly be introduced. The respondents (herein after referred to as plaintiff-respondents) as Plaintiffs instituted the Title Suit (P) 78 of 2003 in the Court of Ld. Civil Judge, Sr. Division, Court No.2, West Tripura, Agartala against the appellant (herein after referred to as the defendant-appellant) for partition of their joint properties in 1/7th share as described under schedule 1 and 2 of the plaint. [3] In a nutshell the case of the plaintiff-respondents was that the suit land described under Schedule-1 of the plaint is the land inherited by the plaintiff-respondents and defendant-appellant from their predecessor-in-interest namely Akhil Chandra Sarkar and also the suit land described under Schedule-2 is jointly purchased by them. The plaintiff-respondents wanted for partition of the said land purchased by them. Their predecessor-in-interest Lt. Akhil Ch. Sarkar owned and possessed the land described under schedule-1 of the plaint and the plaintiff-respondents and defendant-appellant are the owner in possession of the 2nd schedule land and after the death of Page 3 of 14 their predecessor-in-interest they have been jointly possession the said lands. It is a also asserted in the plaint that the plaintiff- respondents recently noticed that the defendant-appellant has been trying very vigorously to get and utilize all the benefits of the land depriving them taking the advantage of their faith and trust reposed on him when the plaintiff-respondents requested the defendant- appellant for amicable partition to overcome to said situation he turnaround and lastly refused the proposal on 9.7.03. [4] The plaintiff-respondents herein filed the suit in the trial court for partition of their joint properties in 1/7th share as described under schedule 1 and 2 of the plaint Schedule-1 District-West Tripura, Sub-Registry office-Sadar, Teshil- Badharghat, Revenue Circle-Dukli, Sub-Division Bishalgarh, Mouja- Badharghat, PS. Amtalli, Khatian No. 1821, Jer Khatian No. 1821/1, 1821/2, C.S Plot No.5674, 5675, 5676, 5677, 5678, 5679(P), 5680, 5689, 5690, 5691, 5694, Class of Land Nal, land measuring 1.61 acres or 4 kani as per local measurement Class of land Nal. Bounded by:
North- Behari Sarkar, Satayendra Biswas, South -Krishan Das, and Sukumar Dey, East - Surehs Das, Nabadwip Das, Sudhan Das, M=Bimal Das, West - Nishi Sarkar Schedule -2 District- West Tripura, Sub-Registry Office-Sadar, Teshil, Badharghart, Revenue Circle - Dukli, Sub-Division - Bishalgarh, Mouja-Badharghat, PS-Amtali, Khatian No.5886, C.S. Plot NO. 5579, 5580, 5667, 5668, 5809/14219, land measuring 1.30 acres or 3 kani 5 ganda as per local measurement. Class of land Bastu viti bounded by North-Sataya master, Behari Sarkar South - Self.
East - Self West - Nishi Sarkar Page 4 of 14 [5] The defendant-appellant herein filed the written statement. In the written statement so filed, it has been categorically stated by the defendant-appellant that the plaintiff-respondents never made any proposal to the defendant-appellant for amicable partition of the homestead land nor the respondents are entitled to get 1/7th (One seventh) share of the schedule property as because the plaintiff-
respondents No.2, 3 and 4 are the sisters of defendant-appellant and said plaintiff-respondents No, 2, 3, and 4 already transferred their property in favour of defendant-appellant herein vide Gift Deed No.1- 4702 dated 27.06.81. So, the plaintiff-respondents No.2, 3 and 4 are not entitled to get any share of schedule property and the defendant-
appellant is entitled to get share of 1/7th (One seventh) share of schedule property each. Be it mentioned here that the said gift deed as mentioned above was executed by the plaintiff-respondents No.2, 3 and 4 willingly and they never claimed anything from the schedule property during the period.
[6] On the basis of the rival pleadings, the Civil Judge (Sr. Div), Court No.2, West Tripura Agartala hereinafter referred to as the trial judge, framed the following issues:
(i) Is the suit maintainable in its present form and nature?
(ii) Whether the predecessor-in-prsent namely Late Akhil Chandra Sarkar, died leaving behind the plaintiffs & defendant as his legal heirs?
(iii) Whether the plaintiffs are entitled to get the decree as prayed for?
(iv) To what other relief/reliefs the parties are entitled?
[7] The trial judge while deciding the issue No. (iii) & (iv) has observed that plaintiff-respondents and the defendant-appellant are Page 5 of 14 entitled to have equal share of the suit land as described in the Schedule -1 and 2 of the plaint. The trial court further observed that firstly the plaintiff-respondents are entitled to have the declaration that they are entitled to have 1/7th share of the sit properties described under schedule 1 & 2 of the plaint. Secondly the plaintiff- respondents are further entitled to file prayer for appointing a Survey Commissioner to cause partition of the suit properties in equal share between the plaintiff-respondents and the defendant-appellant if the parties to the suit fail to amicable partition the same. Survey Commissioner will survey the suit land and will demarcate their respective shares by meets and bounds by causing a partition of the suit properties in equal 1/7th share upon the parties to the suit. [8] The trial judge after having examined all the records so placed in the plaint and also after examining the written statement filed by the defendant-appellant, depositions of PWs and DWs in support of the claim, has observed as herein under:
1. The plaintiffs are entitled to have the declaration that they are entitled to have 1/7th share of the suit properties as described under Schedule -1 & 2 of the plaint.
2. The plaintiffs are further entitled to file prayer before this court for appointment of Survey Commissioner to cause partition of the suit properties in equal share if the parties to the suit fail to amicable partition the same.
The Survey Commissioner will survey and demarcate their respective shares by meets and bounds by causing partition of the suit properties in equal shares.
3. The plaintiffs are entitled to have the cost of the suit. The defendants shall have to bear the cost of the suit. [9] Being aggrieved and dissatisfied with the judgment and decree passed in the original suit, the appellant herein preferred an appeal being case No. Title Appeal No.65 of 2013 in the court of the Page 6 of 14 Additional District Judge, (Court No.3), West Tripura, Agartala. The said court while stating Section 123 of the Transfer of Property Act, 1882 observed that a gift of an immovable property must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
For ready reference, Section 123 of the Transfer of Property Act, 1882 is extracted here in below:
―For the purpose of making a gift of immoveable property, the transfer must be affected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered.‖ [10] While perusing the Ext-A, it was stated by the first appellate court that the only PW-1 and PW2 were examined and both of them denied the execution of Ext-A. So far the Smt. Manju Sarkar (one of the sisters of the appellant herein) she has not come to tender her evidence but she is one of plaintiff-respondents in the Title Suit 78 of 2013. She has duly signed on the plaint where it has been mentioned that each of the plaintiff-respondents and the defendant-
appellant will get 1/7th share of the said property being the legal heirs and successor Late Akhil Chandra Sarkar. So, it is found that Manju Rani Sarkar though she has not come before the court as a witness but she has not accepted the contention of the defendant-appellant that she has also transferred her share in favour of the defendant-
appellant.Page 7 of 14
[11] It was further established that execution of Ext.A has been disputed by the donors of Ext.A and Section 68 of the Indian Evidence Act, 1872 was therefore referred by the first appellate court.
―68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] [12] The first appellate court while appreciating the above pleadings of the plaintiff-respondents clearly stated that defendant-
appellant has been unable to prove Ex.A and also takes two contradictory stands in his defence. Accordingly, I find no ground to interfere in the findings of the learned trial court and come to the conclusion that trial court has rightly decided the remaining issues in favour of the plaintiff-respondents.
[13] Being aggrieved by the said judgment and decree of the first appellate court dated 03.12.2016, the appellant herein has preferred this instant appeal under Section 100 of the CPC. At the time of admitting this appeal, the following substantial question of law was framed by this court by the order dated 05.12.2019.
―Whether the findings of the Courts below, rejecting the execution of the gift deed, is perverse or not?‖ [14] The main contention of the appellant counsel is that the appellant being elder brother has performed marriages and also Page 8 of 14 provided education and took care for betterment of his sisters and in pursuance thereof they have executed the gift deed way back in the year 1981. The sisters who are the defendants in the suit denied the very execution of the gift deed in favour of the appellant herein and accordingly prayed that their shares should not be transferred to the appellant herein and they wanted the respective share to be decided in their favour.
[15] Since the total share are seven, each member would get their respective share and accordingly to the appellant, the three sisters who have executed the gift deed in favour of the appellant, in addition the appellant's share is the fourth share as the appellant is praying for as a matter of right and the remaining share to the rest of the family members. This argument cannot be accepted since the parties to the gift deed are denying the very execution of the gift deed. The gift deed according to the respondents came into light after twenty three years of its execution in favour of the appellant.
[16] The appellant has not challenged before any court with regard to the action of the sisters in denying the gift which they have executed. Since the subject matter runs around sharing of the shares in partition suit the issue relating to taking cognizance of the gift and deciding the share is not just and proper. Moreover, unless their specific share of each family members is decided and more particularly with metes and bounds are decided, the question of gifting would lead to dispute. That, under law since undivided share is also permissible for the purpose of alienation either by way of sale or gift, this is only Page 9 of 14 possible when donor or the vendor accept the document which they have executed in favour of the beneficiaries.
[17] Now in the present case, since the gift deed has been denied by the donors in favour of the appellant/brother, this court is not inclined to give any finding in favour of the appellant with regard to the execution of the gift deed by his sisters in favour of the brother-
appellant. The brother in his entire pleadings has not indicated as to his source of income and the amount of money he spent for marriages, education and the expenditure he incurred in the process of fulfillment of his responsibilities which made his sisters to execute the gift deed by them in his favour.. In view of so many gaps, it is not for this court at the stage of second appeal to allow the filling up of gaps by the appellant during the course of argument when the said contention are not found in the pleadings all through and no document is marked to that effect.
[18] Counsel for the appellant has cited the following judgment.
(i) Hazara Singh and another vs. Faqiria (D) by L.R. and others reported in AIR 2004 Punjab and Haryana 353, where the court has held as under:
―17. In my opinion, the gift of a specific portion in the joint holding or the sale of a specific portion in a joint holdings does not stand on different footing. By virtue of the gift of a Specific portion, the predecessors-in- interest of the defendant became co-sharers in the khewat. They cannot be denied the status of the co- owners in the joint Khewat merely because in the revenue record, they have been shown as co-owners being donees in the column of cultivation. A transferee under Section 44 of the Transfer of Property Act gets right of the transferor to joint possession and to enforce a partition of the same whether the property sold is fractional share or specified portion. The first Appellate Page 10 of 14 Court has totally ignored this aspect of the matter and drawn a wrong conclusion that the defendants or their predecessors-in-interest were not the co-owners in the joint khewat, merely because they have been shown in the column of cultivation and not in the column of ownership.
20. On the other hand, the stand taken by the defendants was that the possession of the plaintiffs was permissive and it never became adverse. The first Appellant Court held the possession of the plaintiffs as adverse on the basis of the Jamabandi for the year 1961-62 (Ex.P-7) and the Khasra Girdawaris pertaining to Kharif 1968 till Rabi1979 (Ex.P-1 to P-4). In these revenue records, the possession of the plaintiffs has been recorded as 'Gair Marnssi Bashrara Malkan Bila Lagan Kabja Jabardasti' Prior to the Jamabandi for the year 1961-62 i.e. in the Jamabandi for the year 1958-59 (Ex.P-8), the possession of the plaintiffs was recorded as Gair Marussi. There is another evidence available on the record which has been totally ignored by the first Appellate Court. This evidence is Ex. D-8 and D-9. Vide Ex.D-8, when the land from the joint holding was acquired by the Government in village Kaimbwala, compensation was paid to the defendants.
Vide Ex.D-9, in lieu of the acquisition of the land gifted to the predecessors-in-interest of the defendants in village Kaimbwala, 7 kanals 5 marlas of land was given to them in village Manimajra. These facts clearly establish that the plaintiffs (donors) never asserted their title by way of adverse possession when the compensation was paid and the land in lieu of the acquired land was allotted to defendant Nos. l and 2. This fact clearly establishes that the plaintiffs never objected to the title of the defendants. The law with regard to the claim of adverse possession by a co-owner is well settled. The possession of a co-sharer is the possession for all the co-sharers. It cannot be adverse to them unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period (Mohd. Bagarv. Naim-Un-Nisa Bibi,2 A.I.R. 1956 S.C.
548). Mere mutation in the revenue record in favour of one co-sharer does not amount to ouster unless there is a clear declaration denying title of the other co-sharer. If a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse from the other co-sharer. It has been held by the Hon'ble Apex Court in Darshan Singh v. Gujjar Singh AIR 2002 SC 606 that possession of a property belonging to several co- sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of the other co-sharers; the mutation in there venue records in the name of one co-sharer would not amount to ouster unless there is clear declaration that title of the co-sharers was denied.‖ Page 11 of 14
(ii) Smt. Lalita James and others vs. Ajit Kumar and others reported in AIR 1991 Madhya Pradesh 15, where the court has held as under:
―4. It, at once, appears to this Court that a purchaser from a co-owner of a portion of undivided property is not entitled to possession of any particular part of the joint property. His right, if any, would be to joint ownership or co-ownership and not to the exclusive ownership of any particular part of the joint property. Even if it was to be assumed that the shares of two sisters of Shri P. S. Chouhan, namely, Mrs. Dayabai Lak-shmanan and Mrs. Grace Pritabai Morris were half and half in the property, each of them would have the right of enjoyment and possession equal to the other. But as long as the property is not divided, neither of them would be entitled to any particular part of the property. A transferee from such a co-owner would not be in a better position than the co-owner himself and hence he would also not be entitled to claim exclusive possession of any particular part of the joint property. Section 44 of the Transfer of Property Act gives legislative sanction to this principle and provides that "where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities accepting, at the date of the transfer, the share or interest so transferred". This sanction, therefore, assures the transferee the right to joint possession or common enjoyment of the property but does not confer on the transferee any right to exclusive possession. Since this is not a case where a co-owner was in exclusive possession of the suit property by some arrangement between them, other details of this principle need not be considered. Suffice it to say, that the respondents- plaintiffs would, in the context of the facts and circumstances of the case, be only entitled to enforce a partition of the joint estate and nothing more. In the context of this legal principle, the sale in favour of the respondents-plaintiffs cannot be accepted to be the sale of the particular property. It would, at the most, be recognized as the sale of the joint property giving the plaintiffs' right to obtain its separate possession, if possible, by filing the suit for partition. Since the respondents-plaintiffs are not in possession of the suit property they cannot be joint in possession of the suit property or any other joint property even during the pendency of the partition suit on the principle stated by Page 12 of 14 this Court in Full Bench decision, in Ramdayal v. Maneklal, 1973 MPLJ 650 : (AIR 1973 Madh Pra 222). This would, in the opinion of this Court, be sufficient to dispose of this suit for separate possession of undivided property.‖
(iii) Mst. Nirashi Bai vs. Ramlal S/o Kajal Ganda & Ors.
reported in AIR 2006 Chhattisgarh 73, where the court has held as under:
―16. From the aforesaid provision, it is apparent that undivided shares can validly be transferred and transferee acquires right of share or interest of the transferor. The sale in favour of defendant No. 1/appellant by deceased Sadvo for consideration and that too by a registered instrument, cannot be declared void for want of partition or for reasons stated in the impugned judgment. Accordingly, question No. 2 is answered.‖
(iv) Purna Chandra Mallik vs Smt. Renuka Jena and Ors.
reported in AIR 2007 Orissa, 65, where the court has held as under:
―8. As would be apparent from the aforesaid facts, a portion of the joint family dwelling house has been sold by original defendant No. 2 and defendant No. 3 to the plaintiff who was a stranger to the family. A preliminary decree has been passed in the suit for partition filed by the said stranger-purchaser and final decree proceeding is pending.
There is no law which stipulates that a co-sharer must sell his or her share to only another co-sharer. Thus strangers and outsiders can purchase share of a co- sharer even in a dwelling house. Section 44 of the Transfer of Property Act stipulates that the transferee of a share in a joint family dwelling house if he is not a member of the said family gets no right to joint possession or common enjoyment of the portion of the house so purchased. Thus Section 44 of the Transfer of Property Act adequately protects the members of the joint family against intrusion of an outsider into joint family dwelling house. The only manner in which an outsider can get possession of the property purchased by him/her is by filing of a suit for separation of his/her share and pray for delivery of possession. Only after such a step is taken that the provisions of Section 4 of the Partition Act will come into play. Excepting Section 4 of the Partition Act there is no other law which provides right to a co-sharer to re-purchase the property sold to a stranger/outsider. Thus before the right of pre-emption under Section 4 of the Partition Act is claimed, the conditions laid down therein have to be satisfied. One of the said conditions is that the outsider must file a suit Page 13 of 14 for partition. Section 4 does not provide a right to the co-sharer to claim preemption where a stranger/outsider does nothing after purchasing the property in question. In other words, Section 4 of the Partition Act does not vest right on a co-sharer to claim pre-emption and to re-purchase the property unless the stranger-purchaser comes to the Court and files a suit for partition and for handing over possession. See Gautam Paul v. Debi Rani Paul AIR 2001 SC 61.
9. In the case of Ghantesher Ghose v. Madan Mohan Ghosh, AIR 1997 SC 471, it has been held that before Section 4 of the Partition Act can be invoked the following conditions must be fulfilled:
(1) A co-owner having undivided share in the family dwelling house should effect transfer of his undivided interest therein;
(2) The transferee of such undividual interest of the co-
owner should be an outsider or stranger to the family; (3) Such transferee must sue for partition and separate possession of the undivided share transferred to him by the co-owner concerned.
(4) As against such a claim of the stranger transferee, any member of the family having undivided share in the dwelling house should put forward his claim of pre- emption by undertaking to buy out the share of such transferee; and (5) While accepting such a claim for preemption by the existing co-owner of the dwelling house belonging to the undivided family, the Court should make a valuation of the transferred share belonging to the stranger transferee and make the claimant co-owner pay the value of the share of the transferee so as to enable the claimant co-owner to purchase by way of pre-emption the said transferred share of the stranger transferee in the dwelling house belonging to the undivided family so that the stranger transferee can have no more claim left for partition and separate possession of his share in the dwelling house and accordingly can be effectively denied entry in any part of such family dwelling house.‖ [19] On the strength of Section 44 of the Transfer of Property Act, 1882 counsel for the appellant he has argued that the gift executed by the sisters in favour of the appellant-brother needs to be upheld as the transfer is permissible. This court has no hesitation to say that an undivided portion of the property is permissible for alienation but when the said alienation is disputed, the said document Page 14 of 14 cannot be given any credence. The above judgments have no relevance to the facts of the case.
In view of the above, this appeal is dismissed confirming the orders of the lower appellate court dated 03.12.2016 and the trial court dated 27.09.2004.
JUDGE Dipak