Calcutta High Court (Appellete Side)
Suchitra Karati vs Sumitra Das on 25 February, 2009
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
F.M.A. No.99 of 1998
Suchitra Karati
-versus-
Sumitra Das
For the Appellant : Sardar Amjad Ali,
Sardar Shahin Imam,
Ms. Ipsita Chowdhury.
For the Respondent: Mr. Bidyut Kr. Banerjee,
Mr. Dipak Kr. Paul.
Heard On: 20.02.2009 Judgment On : 25-02-2009.
This miscellaneous appeal is directed against an order of remand passed by the leaned Additional District Judge, 10th Court, Alipore in T.A. No.300 of 1989, by which the suit for declaration, injunction and partition filed by the plaintiff/respondent was remanded back to the learned Trial Judge for retrial with a direction upon the learned Trial Judge to consider the respondent's application for addition of party filed in the said appeal. An opportunity for filing additional written statement to the amended pleadings of the plaintiff was also given to the defendant/appellant.
The propriety of the said order of remand is under challenge in this appeal at the instance of the defendant/appellant herein.
Let me now give the short background of this litigation leading to the filing of this instant miscellaneous appeal.
The plaintiff and the defendant are two step sisters. Their father namely Jugal Charan Santra who was a member of the West Bengal Legislative Assembly, died intestate leaving behind him surviving his two daughters. One of the daughters of Jugal babu filed the instant suit for declaration, injunction and partition against her sister. In the said suit, partition of several properties being schedule 'A', 'B' and 'C' was sought for, upon a declaration that two gift deeds allegedly executed by Jugal babu on 5th February, 1987 and 9th February, 1987 through which the defendant is claiming absolute right in respect of the 'A' and 'B' schedule property, are null and void as those deeds were created by the defendant by false personification with an intention of grabbing the entire property of her father. The plaintiff claimed that those gift deeds were never executed by Jugal babu and the left thumb impression which are appearing in those deeds are not the left thumb impression of Jugal Babu. In fact, the said Jugal babu was a literate person and he executed another deed on 30th January, 1987 by putting his signature in Bengali in favour of one Gautam Santra. Since the said deed was executed by Jugal babu by putting his signature therein immediately five days before the execution of the disputed deeds, the physical fitness of Jugal babu at the time of the execution of the deed cannot be doubted. Thus, the plaintiff expressed her suspicion about the execution of those disputed deeds by Jugal babu as he who being a literate person and executed the other deeds by putting his signature therein, is not expected to execute the disputed deeds by putting his left thumb impression therein. The execution of those disputed deeds by putting left thumb impression therein by a literate person, without giving any explanation as to why those deeds were executed by him by putting his left thumb impression therein, according to the plaintiff, is much more suspicious.
In the aforesaid context, the plaintiff prayed for a declaration to the effect that those disputed gift deeds are void and are not binding upon the plaintiff. Thus, the plaintiff also claimed partition of the suit properties comprising of schedule 'A', 'B' and 'C'.
The defendant/appellant contested the said suit by filing written statement therein by denying the allegations made in the plaint. The defendant asserted that those gift deeds were duly executed by Jugal babu. By one of those deeds, Jugal babu gifted his 'A' schedule property in favour of the defendant. By the other deed, Jugal babu gifted the 'B' schedule property in favour of the defendant. Thus, by virtue of those two gift deeds the defendant is claiming absolute title in respect of 'A' and 'B' schedule property.
'C' schedule property is admittedly a joint property of the parties. The defendant also claimed that both the plaintiff and the defendant have undivided half share in the 'C' schedule property. In fact, the defendant did not oppose the plaintiff's claim for partition in respect of 'C' schedule property. The defendant, however, challenged the maintainability of the said suit for non-joinder of necessary parties.
The learned Trial Judge, after taking into consideration the pleadings as well as the evidence of the respective parties, ultimately dismissed the suit on contest by holding inter alia that those two disputed gift deeds were duly executed by Jugal babu. While coming to such conclusion, the learned Trial Judge not only believed the evidence of the defendant but also believed the evidence of her other witnesses such as the attesting witnesses, the deed writer and another neighbour, who also deposed in favour of the execution of those two disputed deeds by Jugal babu. The learned Trial Judge noticed that in one of the disputed deed which was executed by Jugal babu on 5th Februry, 1987, Jugal babu himself explained the reasons for his execution of the said deed by putting his left thumb impression therein. At the end of the said deed and immediately after the signature of the attesting witnesses, Jugal babu mentioned that he being a paralytic patient is unable to sign the said deed and as such, he executed the said deed by putting his left thumb impression. The contents of the said deed was also read over to Jugal babu before execution of the said deed and the person who read over also deposed in favour of the due execution thereof by Jugal babu, who executed the said deed after understanding the purports thereof. Since the plaintiff did not take any step for comparing the disputed left thumb impressions of Jugal babu appearing on the said two deeds with the admitted left thumb impression of Jugal babu on various other available documents, the learned Trial Judge took strong exception to such conduct of the plaintiff particularly because of the fact, that the plaintiff wanted to avoid those deeds on the ground of their creation by false personification.
Though the learned Trial Judge refused to pass a decree in favour of the plaintiff by declaring those two disputed gift deeds as invalid and inoperative by disbelieving the plaintiff's allegation regarding creation of those deeds by defendant by false personification, but, still then, without indicating any reason as to why a decree for partition in respect of 'C' schedule property cannot be granted in favour of the plaintiff, dismissed the said suit as a whole even though interest of each of the parties to the extent of half share therein was admitted by the defendant.
Being aggrieved by and dissatisfied with the said judgment and decree of the said Trial Judge, the plaintiff/respondent filed an appeal before the learned First Appellate Court. In connection with the said appeal, two applications were filed by the plaintiff/respondent. One of such applications was filed under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint. The other application was filed under Order 1 Rule 10 of the Code of Civil Procedure for addition of two purchasers of Jugal babu as party defendants in the said suit.
In the application for amendment, the plaintiff proposed to introduce that though Jugal babu was a literate person but, still then, some money was withdrawn by him from his savings bank account maintained with the Allahabad Bank by signing on the withdrawal slip on a day when Jugal babu was in nursing home for his treatment. The plaintiff further proposed to introduce that two or three days prior to the death of Jugal babu when he was confined to bed in an unconscious condition, some money was withdrawn from the bank account of Jugal babu by utilizing his thumb impression on the withdrawal slip, for meeting the immediate need for such money for his treatment. Such money was so withdrawn in consultation with the near relations of Jugal babu by obtaining his left thumb impression on the withdrawal slip in the presence of a bank employee and the local Anchal Pradhan. The plaintiff further proposed to introduce that excepting on the solitary occasion as aforesaid, Jugal babu all throughout operated his bank account by putting his signature on the withdrawal slip.
In the other application, the plaintiff sought for leave to implead two of the purchasers who purchased some of the properties from Jugal babu, as party defendants in the said suit by contending inter alia that since such purchasers acquired some interest in some of the properties of Jugal babu by way of purchase from him, the presence of those purchasers is necessary for complete adjudication of the dispute involved in the suit.
Those two applications were taken into consideration by the learned First Appellate Court at the time of hearing of the appeal.
While disposing of the said appeal, the learned First Appellate Court held that even though the reliefs which the plaintiff claimed by way of declaration regarding invalidity of those two disputed gift deeds are denied, but, still then, the learned Court below ought not to have refused to pass a preliminary decree for partition in respect of the 'C' schedule property as the 'C' schedule property is admittedly the joint property of the parties and each of the parties admittedly has half share therein. The learned First Appellate Court also held that under such situation remand is inevitable. Holding as such, the suit was remanded to the learned Trial Judge for fresh trial. While remanding the suit to the learned Trial Judge for retrial, the learned First Appellate Court held that the amendment as sought for by the plaintiff should be allowed for complete adjudication of the dispute in the said suit. But in spite of such findings, the learned First Appellate Court without allowing the plaintiff's prayer for amendment, permitted the defendant to file additional written statement in the said suit. The learned First Appellate Court also directed the learned Trial Judge to consider the plaintiff's application for addition of party as the learned First Appellate Court was of the view that if it is found that any undemarcated share was transferred by Jugal babu in favour of Gautam babu, then presence of Gautam babu will be necessary. The appeal was, thus, disposed of accordingly.
The propriety of the said order of remand is under challenge in this appeal. Mr. Ali, learned Senior Advocate appearing for the appellant, supported the judgment of the learned Trial Judge on the issue regarding validity of those two gift deeds through which the defendant is claiming exclusive title in 'A' and 'B' schedule property. Mr. Ali, however, submitted that his client has no objection if a preliminary decree for partition is passed in respect of 'C' schedule property. Mr. Ali further challenged the order of remand passed by the learned First Appellate Court by submitting that the learned Court below committed an illegality by allowing the defendant to file additional written statement without even allowing the plaintiff's application for amendment of plaint. Mr. Ali further submitted that the purchasers, whom the plaintiff wants to add as defendants in the said suit, cannot be joined as party in the said suit as they have not acquired any interest in respect of the suit properties by way of their purchase from Jugal babu. Mr. Ali, thus, contended that since those purchasers are not co-sharers in respect of any of the said property their presence is not necessary for adjudication of the said suit.
Mr. Banerjee, learned Senior Counsel appearing for the respondent, supported the judgment of the learned First Appellate Court by submitting that remand of the suit is inevitable in view of the admitted fact that the 'C' schedule property remains unpartitioned. Mr. Banerjee further submitted that the facts which were proposed to be brought on record by way of amendment are necessary for complete adjudication of the dispute involved in the suit, as the circumstances under which Jugal babu withdrew some money from his savings bank account by putting his left thumb impression on the withdrawal slip by making a departure from his normal practice in operation his bank account, is required to be brought on record. Mr. Banerjee, thus, submitted that though it is true that in the operative part of the judgment it was not indicated that the plaintiff's prayer for amendment was allowed but if the tenor of the judgment is considered as a whole, then there will be no confusion that the learned Court below was of the view that such amendment is necessary for complete adjudication of the dispute involved in the suit. Mr. Banerjee, thus, submitted that such irregularity can be cured by this Court.
Mr. Banerjee in his usual fairness submitted that the purchasers whom the plaintiff wants to add as party defendant in the said suit have not acquired any title in respect of any of the suit properties by virtue of their purchase from Judgal babu. As such, those purchases are not necessary parties in the suit.
Heard the submissions of the learned Advocates of the parties. Considered the materials on record including the matter impugned.
Since the parties are not at issue with regard to the plaintiff's claim for partition in respect of 'C' schedule property, this Court concurs with the findings of the learned First Appellate Court that the remand of the suit to the learned Trial Judge for reconsideration is inevitable as a preliminary decree is needed to be passed at least in respect of the 'C' schedule property. This Court, thus, could have resolved the said dispute by passing a preliminary decree in respect of the 'C' schedule property here and now, without even remanding the suit back to the Trial Court but since the dispute in its entirety cannot be resolved by adopting the said course and since the maintainability of the suit on account of non-joinder of necessary party has been raised in the suit, this Court instead of passing a preliminary decree in respect of the 'C' schedule property here and now, prefers to maintain the order of remand passed by the learned First Appellate Court with some modification for the following reasons:-
On perusal of the pleadings of the plaintiff, this Court finds that the plaintiff wanted to avoid those disputed deeds on the ground that those deeds were created by false personification. The plaintiff asserted in her pleading as well as in her evidence that Jugal babu never executed those two disputed deeds and the left thumb impression appearing on those two deeds are not the left thumb impression of Jugal babu. Fact remains that Jugal babu admittedly executed several other deeds in favour of his various purchases. One of such deeds which was executed by Jugal babu in favour of Gautam babu is on the record. The plaintiff has also admitted in the proposed amendment that Jugal babu withdrew money from his bank account by putting his left thumb impression on the withdrawal slip. Since the disputed deeds were sought to be avoided on the ground of creation of those deeds by false personification and since such claim of the plaintiff was denied by the defendant, such dispute, in my view, can be resolved only by way of comparison of the disputed left thumb impression of Jugal babu appearing on the disputed deeds with the admitted left thumb impression of Jugal babu appearing in the sale deed executed by Jugal babu in favour of Gautam Chandra Santra or with the admitted left thumb impression of Jugal babu appearing in the withdrawal slip maintained in the concerned bank or with any other admitted or proved left thumb impression of Jugal babu in any other document.
If the proposed amendment is not allowed then the plaintiff will not be permitted to bring the said withdrawal slip containing the admitted left thumb impression of Jugal babu into evidence. In my view, the said withdrawal slip may throw some light in the matter in issue. As such, the proposed amendment wherein the execution of such withdrawal slip by Jugal babu by putting his thumb impression was sought to be brought on record, in my view, is necessary for complete adjudication of the dispute.
Accordingly, the plaintiff's prayer for amendment of plaint is allowed. The plaintiff is permitted to carry out amendment in his pleadings in terms of Order 6 Rule 18 of the Code of Civil Procedure. The plaintiff is directed to supply a copy of the amended plaint upon the defendant and/or his learned Advocate in the Trial Court immediately after such amendment is effected.
Leave is granted to the defendant to file additional written statement in the suit within four weeks from the date of service of the copy of the amended plaint upon the defendant.
Since admittedly none of the purchases whom the plaintiff wants to add as defendants in the said suit, has acquired any interest in any of the suit properties, the plaintiff's application for addition of party stands rejected as the presence of those purchasers who are not co-sharers in respect of the suit properties is not necessary for adjudication of the dispute involved in the suit. The application of addition of parties filed by the plaintiff before the learned First Appellate Court, thus, stands disposed of.
However, since Gautam Chandra Santra claimed to have purchased undivided interest in one of the properties under 'A' schedule, the presence of the said Gautam Chandra Santra may be found necessary as in the event the plaintiff succeeds in proving that those two disputed deeds were created by false personification then not only the share of the plaintiff and the defendant will be required to be declared but also the interest of Gautam Chandra Santra therein will have to be declared in the suit provided, however, it is found that Gautam babu purchased any undemarcated share in plot no.69 which is one of the suit property as mentioned in schedule 'A'.
Thus, the learned Trial Judge is directed to implead Gautam Chandra Santra as defendant no.2 in the said suit. Plaintiff is directed to serve a copy of the plaint upon the said added defendant within one month from the date. The added defendant is also permitted to file written statement in the said suit within four weeks from the date of such service.
Before concluding, this Court also feels that another aspect is required to be considered in the facts of the instant case. This is a case where creation of a document by misrepresentation is not alleged. As such, under what circumstances those documents were created is not a material consideration here. Here the Court is required to find out as to whether those disputed deeds were executed by Jugal babu or not. Execution of a document can be made in various modes. A document may be executed by the executant by putting his signature on such document. A document may be executed by the executant by putting his left thumb impression therein. Both the aforesaid modes of execution are valid and accepted. Normally it is not expected from a literate person to execute a document by putting his left thumb impression. But the departure from this rule cannot vitiate a document, if it is found that the executant executed the disputed document even by putting his left thumb impression therein.
That apart, the submission of Mr. Ali to the effect that normally, exercise of fraud cannot be conceived of when documents are executed in installments. Had it been a fact that the defendant had the intention to grab the entire property of her father, then she would not have created those documents by installments, because normal experience shows that when a document is created by forgery, then such document is created mostly in one sitting so that the executant may not get any opportunity to deny execution of the subsequent document after discovering the fraudulent acts exercised upon him earlier in creation of the earlier document.
That apart, here is the case where it is found that the entire property of Jugal babu was not gifted in favour of the defendant. Jugal babu gifted only a part of his properties in favour of the defendant. The reasons which prompted him to make gift of those properties to the defendant has also been indicated in the very deeds.
The attesting witness, the scribe, the person who read over and explained the contents of the deeds to Jugal babu and a neighbour who is known to the executant as well as the parties to the suit, are all examined in support of due execution of those deeds by Jugal babu. Thus, when direct evidence on execution of those documents by Jugal babu is available, the Court need not make any robbing enquiry as to why such documents were executed by a literate person by putting his left thumb impression thereon. But at the time when execution of the disputed deeds by Jugal babu is disputed by the plaintiff who stated that the left thumb impression appearing in the disputed deeds are not the left thumb impression of Jugal babu, the Court is required to find out as to whether Jugal babu really subscribed his left thumb impression on those deeds or not.
After execution of the gift deeds, the defendant accepted the said gift and started realizing rent from the tenant. The defendant also mutated her name as owner of the gifted property in the revenue records. All these acts show that she had no intention to conceal the said gift.
Keeping the aforesaid facts in mind, this Court holds that since the dispute which is involved in the instant case, arises out of the plaintiff's allegation regarding creation of those documents by false personification, such dispute, in my view, is required to be resolved by ascertaining as to whether the left thumb impressions which are appearing in those disputed deeds are the left thumb impression of Jugal babu or not and such ascertainment, in my view, can only be made by way of comparison of those disputed left thumb impressions of Jugal babu with his admitted and/or proved left thumb impressions.
Accordingly an opportunity should be given to the plaintiff for comparing the disputed left thumb impressions appearing on those two disputed deeds with the admitted and/or proved left thumb impression of Jugal babu by an expert so that the dispute with regard to creation of documents by false personification can be resolved with the help of such expert's opinion.
The impugned order of remand is, thus, modified accordingly. The learned Trial Judge is directed to reconsider the said suit in the light of the observation made in above.
The appeal, thus, stands allowed.
Let the Lower Court records be sent down to the Lower Court immediately. Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible.
( Jyotirmay Bhattacharya, J. )