Calcutta High Court (Appellete Side)
Injamamul Hoque & Anr vs Hazi Mahid Sk @ Hazi Sahid Sk & Ors on 24 January, 2020
1
24.1.
27
AGM
2020
Ct CAN 3919 of 2019
02 In
SAT 448 of 2018
Injamamul Hoque & Anr
Vs
Hazi Mahid Sk @ Hazi Sahid Sk & Ors
Mr. Pratip Kumar Chatterjee,
Mr. Soumya Mazumder,
... For the Appellants.
The appellants' suit for declaration of right, title
and interest in respect of the suit property stood
decreed by the Trial Court but such decree is reversed
by the Appellate Court.
The plaintiffs/appellants filed a suit for
declaration that they have acquired right, title and
interest in respect of the suit property on the strength
of a deed of sale executed in the year 2010 and the
defendants/respondents have not acquired any right,
title and interest on the basis of the deeds executed in respect of the selfsame property.
Admittedly, Gopal Chandra Mondal was the owner of the suit property and alleged to have executed a deed of settlement on 24th February, 1955 in favour of his wife, who is the plaintiff No. 5 in the said suit. The plaint case proceeds simply on an assertion that upon the death of the original owner, the suit property devolved upon the wife, sons and daughters, who executed the deed of sale in favour of plaintiff Nos. 1 and 2.
2The defendants/respondents took a defence that the said original owner sold the entire suit property by two several deeds in favour of M/S Allied Regins and Chemical Limited in the year 1973 and the defendants have traced title from such company and, therefore, the contention of the plaintiffs/appellants are incorrect and not legally sustainable. The Trial Court simply proceeded on the basis of the provisions contained in Section 14 of the Hindu Succession Act, 1882 holding that a limited interest was created in the deed of settlement, which fructified into an absolute right and, therefore, the widow was the absolute owner under the said provision and if subsequently she divested her right, title and interest in favour of plaintiff Nos. 1 and 2, such divestation is legally perfect.
The Appellate Court reversed the aforesaid findings on the ground that the original owner during her lifetime sold the entire property to the said company and, therefore, the defendants having derived title through the company has a legal title. The deed of settlement was received in evidence and marked Exhibit 1 therein. Two several deeds of sale executed by the original owner in the year 1973 was also produced before the Trial Court and marked as Exhibit A and I respectively.
The first and foremost question which arises when the document styled as deed of settlement as relied upon by the party in its very nature, may be construed as a will or a gift depending upon the 3 intention of the settler gathered from the language used therein. A document styled of deed of settlement may create a right in future on the happening of certain events or may create an immediate right into a person depending upon the intention of the settler. One has to find a distinction between a vested interest and the contingent interest defined in Section 19 and 21 of the Transfer of Property Act, 1955. In former case an interest in respect of the property may be created without specifying the time of its taking effect or specifying a time when it would take effect or happening of any event which must happen unless the contrary intention is manifestly appearing therefrom. On the other hand, the later case depends upon an interest having created in a person to take effect only on a happening of a specified uncertain events or if such specified uncertain events shall not happen, such person acquired a contingent interest in the property.
It is a settled law that the will take effect after the death of the testator/testatrix whereas the deed of gift takes effect immediately upon due execution of the deed and the acceptance by the donee. In order to find out the real intention of the executant/settler the language used in the purported document is required to be looked into and it would be preposterous to suggest that the moment the deed of settlement is executed, it divested a settler of his right, title and the interest which he had in respect of the property.
4For argument sake, if we consider the deed of settlement to be a will obviously the right, be it limited or absolute, would accrue only on the death of the testator and not prior thereto. Section 14 does not contemplate any situation where the original owner executing a will being alive and during his lifetime the limited right under a will would ripe and/or converted into a full fledged/absolute right. The position would have been different if the deed of settlement is construed as a gift as the title immediately passed upon the donee providing the conditions enshrined under Section 122 of the Transfer of Tenancy Act are satisfied and/or complied with.
It appears from the record which is undisputed that the settler sold, transferred and conveyed the entire property during his lifetime in favour of the company by executing two several deeds of sale in the year 1973. Once the person transferred his right, title and interest in respect of the immovable property, he denuded himself of any right subsisting of his death or to constitute the state to be inherited by the heirs and legal representatives under the Law of Inheritance. The deed of settlement has been construed and interpreted by the Appellate Court as not a document divesting the original owner of his interest in respect of the suit property immediately upon his execution and registration which would further be corroborated by the conduct of the original owner when he executed the sale deeds in the year 5 1973. Furthermore, the widow, the plaintiff No. 5 of the original owner was one of the vendor in a subsequent sale deed executed in favour of the plaintiff Nos. 1 and 2 and did not assert her right accrued under Section 14 of the Hindu Succession Act. The Appellate Court have further found that the original owner did not interpret and/or intended the deed of settlement as a conditional gift or a limited gift but the right to accrue only after his departure from the world and, therefore, held that the sale of the entire land in favour of the company, cannot be rendered void.
We, thus, do not find any substantial question of law involved in the instant appeal.
The appeal along with the application is, thus, dismissed under Order LXI Rule 11 of the Code of Civil Procedure.
(Abhijit Gangopadhyay, J) (Harish Tandon, J)