Tripura High Court
Shri Sunil Ghosh vs Smti. Charu Bala Ghosh on 5 June, 2017
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
RFA. No. 07 of 2014
RFA. No. 10 of 2014
RFA. No. 07 of 2014
Shri Sunil Ghosh,
son of late Tarani Ghosh of Vill : Purba Bagabasha (Karaiyamura), P.O. &
P.S. R. K. Pur, Udaipur, District : Gomati, Tripura
.........Appellant
-VERSUS-
1. Smti. Charu Bala Ghosh,
wife of late Dhirendra Ghosh,
Village: Samatal Bagma, P.O. & P.S. R. K. Pur, Udaipur, District: Gomati,
Tripura
2. Smti. Milan Rani Ghosh,
wife of Shri Subhash Ghosh of Village: West Khupilong, P.S. Killa, Udaipur,
District: Gomati, Tripura
3. Smti. Chinu Rani Ghosh,
wife of Shri Habul Ghosh of Village- Purba Bagabasha (Karaiyamura), P.O.
& P.S. R.K. Pur, Udaipur, District: Gomati, Tripura
......Plaintiff-respondents
4. Shri Subhash Ghosh, son of late Tarani Ghosh,
5. Smti. Parul Ghosh, wife of late Upendra Chandra Ghosh, C/o : Shri Dilip Ghosh both are of Village : Purba Bagabasha (Karaiyamura), P.O. & P.S. R. K. Pur, Udaipur, District: Gomati, Tripura ......[Defendants No. 1 & 3] the respondents For the Appellant : Mr. S. M. Chakraborty, Sr. Advocate Ms. P. Sen, Advocate For the respondent No.4 : Mr. K. N. Bhattacharji, Sr. Advocate Ms. S. Chakraborty, Advocate For the respondent No. 3 : Mr. A. K. Pal, Legal Aid Counsel RFA. No. 10 of 2014
1. Smt Chinu Rani Ghosh, Wife of Habul Ghosh of Village : Purba Bagabasha (Karaiyamura), P.S. R. K. Pur, Udaipur
1. Smti. Charu Bala Ghosh, wife of late Dhirendra Ghosh, Village: Samatal Bagma, P.O. & P.S. R. K. Pur, Udaipur, District: Gomati, Tripura
2. Smti. Milan Rani Ghosh, wife of Shri Subhash Ghosh of Village: West Khupilong, P.S. Killa, Udaipur, District: Gomati, Tripura RFA Nos. 07 & 10 of 2014 Page 1 of 8 .........Appellants
-VERSUS-
1. Shri Subhash Ghosh, son of late Tarani Ghosh, Village : Purba Bagabasha (Karaiyamura), P.O. & P.S. R. K. Pur, Udaipur
4. Shri Sunil Ghosh, Son of late Tarani Ghosh Village : Purba Bagabasha (Karaiyamura), P.O. & P.S. R. K. Pur, Udaipur
5. Smti. Parul Ghosh, wife of late Upendra Chandra Ghosh, C/o : Shri Dilip Ghosh Village : Purba Bagabasha (Karaiyamura), P.O. & P.S. R. K. Pur, Udaipur ........Respondents For the Appellants : Mr. P. S. Roy, Advocate For the respondent No.1 : Mr. K. N. Bhattacharji, Sr. Advocate Ms. S. Chakraborty, Advocate For the respondent No. 1 : Mr. S. M. Chakraborty, Sr. Advocate Ms. P. Sen, Advocate BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA Date of hearing and delivery of Judgment and order : 05.06.2017 Whether fit for reporting : NO Judgment and Order (Oral) Heard Mr. S. M. Chakraborty, learned senior counsel assisted by Ms. P. Sen, learned counsel appearing for the appellant in RFA No. 07 of 2014 and also Mr. P. S. Roy, learned counsel appearing for the appellant in RFA No. 10 of 2014 as well as Mr. K. N. Bhattacharji, learned senior counsel assisted by Ms. S. Chakraborty, learned counsel appearing for the defendant No. 1, the respondent No. 4 in RFA No. 07 of 2014 and the defendant No. 1, the respondent No. 1 in RFA No. 10 of 2014. Mr. A. K. Pal, learned Legal Aid Counsel appearing for the plaintiff No. 3, the respondent No. 3 in RFA No. 07 of 2014 and Mr. P. S. Roy, learned counsel RFA Nos. 07 & 10 of 2014 Page 2 of 8 appearing for all the plaintiff-appellants. None appears for the defendant No. 3, the respondent No. 3 namely, Smti Parul Ghosh. It may be noted that in RFA No. 10 of 2014 Mr. S. M. Chakraborty, learned senior counsel assisted by Ms. P. Sen, learned counsel appears for the defendant No. 2, the respondent No. 2. [2] It appears from the records that notice was served upon the respondent No. 3 namely, Parul Ghosh by registered post with A/D, neither the A/D card nor the registered notice has returned to the Registry and as such under Order-V Rule 9 (5) of the CPC, this Court would draw presumption of service in respect of the said respondent. Thus, all the parties are represented or served notice. [3] These two appeals are consolidated for disposal by a common judgment inasmuch as the appeals emanate from the judgment and decree respectively dated 27.05.2014 and 06.06.2014 delivered in Title Suit(Partition) No. 16 of 2013 by the Civil Judge (Sr. Division) South Tripura, Udaipur (as he then was). [4] All the plaintiffs as well as defendant No. 2 challenged the legality of the said judgment dated 27.05.2014 by filing an appeal under Section 96 of the CPC. By the said judgment, the trial court after discussing the evidence had observed that the plaintiffs No. 1, 2 and 3 and the defendant No. 3 are equally entitled to get 1/6th share out of the total land described in the 'A' schedule of the plaint while the defendant No. 1 will get 2/6th share from the said land described in the 'A' schedule.
RFA Nos. 07 & 10 of 2014 Page 3 of 8 [5] Further it has been observed that the plaintiffs as well as the defendants No. 2 and 3 are not entitled to get any share from the schedule 'B (i)' and the schedule 'B (ii)' of the plaint inasmuch as the trial court has accepted one unregistered Will executed by Kanaki Bala Ghosh bequeathing her property in her life time. [6] The brief resume of fact which would be relevant to understand the challenge as projected in these appeals is that the plaintiffs and the defendants are the full-blood brother and sister and they have inherited the properties as described in the Schedule- A of the plaint through their father and the properties as described in Schedule-B(i) and B (ii) are related to Kanaki Bala Ghosh, wife of one Nabin Chandra Ghosh.
[7] Schedule-B (i) property was originally belonged to Nabin Chandra Ghosh and after his death the said property devolved to said Kanaki Bala Ghosh by inheritance. The properties as described in Schedule-B (ii) of the plaint was originally belonged to Kanaki Bala Ghosh and after her death the properties were to be determined in terms of Section-15 of the Hindu Succession Act. [8] The plaintiffs have pleaded in Para-3.c as under:
"Nabin Ch. Ghosh being sole owner in possession of the entire Schedule -B(i) land, died on 20.01.1982 A.D. leaving behind his wife Kanoke Bala Ghosh as his sole legal heir.
Accordingly after the death of Nabin Ch. Ghosh, his wife Konoke Bala Ghosh became the sole owner in possession of the Schedule-B(i) land left by her husband Nabin Ch. Ghosh. The said Kanoke Bala Ghosh being the sole owner in possession of the Schedules B(i) and B(ii) below lands died on 01.07.2001 A.D. leaving behind the present plaintiffs and defendants as her legal heirs.
RFA Nos. 07 & 10 of 2014 Page 4 of 8 It is to be mentioned here that as Nabin Ch. Ghosh and Kanoke Bala Ghosh have no issue and as such the legal heirs of the brother of Nabin Ch. Ghosh, i.e. the present plaintiffs and defendants became the legal heirs of both late Nabin Ch. Ghosh and late Kanoke Bala Ghosh as per Hindu Succession Act."
[9] The defendants however, by filing the written statement has stated inter alia as under:
"So after the death of Nabin Ch. Ghosh his properties devolved into his wife Kanaki. After death of Kanaki her properties devolved in the legal heirs of parental sides of Kanaki which are as follows:
(i) Sri Makhan Chandra Ghosh.
(ii) Sri Chitta Ghosh.
(iii) Sri Jagyaswar Ghosh.
All sons of late Sital Ghosh, Village : Shibnagar, P.O. Taxa Para, Sonamura, P.S. Melaghar, District:
Sipahijala.
These people are the sons of brother namely Sital Ghosh (now late) of Kanaki Bala Ghosh, who are the necessary parties. As such the plaintiffs or defendants are not the legal heirs of Kanaki to inherit the properties of B(i) & B
(ii) schedules of plaint. Defendant No. 1 got the said properties from Kanaki by way of WILL executed by her in favour of defendant No. 1. Therefore, the said people are necessary parties."
[10] There is however no dispute about the Schedule-B land, save and except that the defendants No. 1 and 2, the appellants in RFA No. 07 of 2014 and the defendant No. 1, the respondent No. 1 in RFA No. 10 of 2014 by their written statement have claimed that the defendant No. 1 by way of relinquishment allowed her share to devolve in favour of the defendant No. 1, the appellant in RFA No. 07 of 2014.
RFA Nos. 07 & 10 of 2014 Page 5 of 8 [11] Mr. S. M. Chakraborty, learned senior counsel appearing for the appellant in RFA No. 07 of 2014 has referred to Para-13 where it has been stated as under:
"That the plaintiffs No. 2 and 3 were given marriage by the defendants No. 1 and 2 out of their own funds. As such at the time of marriage of them the plaintiff Nos. 2 and 3 relinquished their share in favour of defendant Nos. 1 and 2 of the "A" Schedule mentioned properties. Subsequently defendant No. 1 also relinquished his share of land in "A" schedule of the plaint in favour of defendant No. 2. The defendant No. 2 residing in the said land along with the family members by constructing his home stead huts and other lands are in his possession. So the defendant No. 2 is the single owner of the "A" schedule land. As such neither "A" nor "B"
schedule lands are not partitionable land and the suit is liable to be dismissed and rejected."
[12] Mr. S. M. Chakraborty, learned senior counsel has further submitted that on the face of such pleadings of the defendants No. 1 and 2 in their written statement and having noticed the same, the trial court has declared that the defendant No. 1 is entitled to 2/6th share meaning that he will not get any share virtually out of the Schedule-A land. According to Mr. Chakraborty, learned senior counsel, this is a wholly erroneous and hence the judgment and decree cannot stand the scrutiny of law. [13] From the other side, Mr. K. N. Bhattarcharji, learned senior counsel has submitted that the defendant No. 1 got the entire landed property described in Schedule-B (i) and B (ii) by virtue of the Will executed by Kanaki Bala Ghosh or Kanke. The Will is an unregistered Will. Whether Kanaki Bala Ghosh's legal heirs would first be from her father's side or from the husband's side requires to be determined.
RFA Nos. 07 & 10 of 2014 Page 6 of 8 [14] So far the land under the Schedule-B (i) is concerned, the legal heirs should come from the husband's side of Kanaki Bala Ghosh. But so far the land under Schedule-B (ii) is concerned, there is no material how the said property was acquired by Kanaki Bala Ghosh. For any reason, if the property devolved to Kanaki Bala Ghosh from her father's property, then the legal heirs from the father side will have a right to claim his property. [15] In that event, even to take the unregistered Will as an instrument of bequest, then also the presence of the legal heirs from the father's side in terms of Section-15 of the Hindu Succession Act, 1956 is essential for determination of the dispute. [16] Learned counsel appearing for the parties have fairly submitted that there is no adequate evidence of relinquishment as the relinquishment is neither a sound legal method of transfer nor such transfer has been recorded by a valid procedure. Moreover, in absence of the details of the property-origin, Kanaki Bala Ghosh can indisputably be treated as the owner of the land described in Schedule-B (i). It was not ascertained or determined whether Kanaki Bala's legal heirs would come through her father or from the husband's side.
[17] In such situation and in view of acceptance of the unregistered partition deed in the evidence in absence of the legal heirs through the father of Kanaki Bala Ghosh, the impugned judgment and decree may not be sustained. Since it is a partition RFA Nos. 07 & 10 of 2014 Page 7 of 8 suit and according to the plaintiffs, the defendants and the plaintiffs have the right over the Schedule-A and Schedule- B (i) (ii) they instituted the present suit. The controversy relates to relinquishment as well as the acceptance of an unregistered Will in the manner as the trial court has preserved, cannot be held tenable. In view of this, this Court is of the view that the suit must fail on the following two grounds viz (i) insufficiency of proof of relinquishment and (ii) insufficiency of the ownership details and its history particulars so far the land as described under Schedule-B(ii) is concerned. Whether the said land has devolved to Kanaki Bala Ghosh from her father's side or not. The prerequisite existence of title in favour of the plaintiffs and the defendants are seriously under cloud. In such circumstances there is no other alternative but to allow the appeals and dismissed the suit.
[18] Hence, the appeals are allowed and the suit is dismissed. In view of what has been observed above, that any party can institute a fresh suit by reaming the defects as aforementioned.
Draw the decree accordingly and send down the LCRs thereafter.
JUDGE A. Ghosh RFA Nos. 07 & 10 of 2014 Page 8 of 8