Calcutta High Court (Appellete Side)
Karan Chabria vs Yashwant Chabria & Ors on 19 September, 2022
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Justice Soumen Sen
And
The Hon'ble Justice Siddhartha Roy Chowdhury
F.A. No.410 of 2009
C.O.T No. 40 of 2010
With
CAN 5 of 2022
Karan Chabria
Vs.
Yashwant Chabria & Ors.
For the Appellant :Mr. Saptangshu Basu, Sr. Adv.,
Mr. Biswanath Chatterjee, Adv.
Mr. Kaushik Mandal, Adv.
For the Respondent 1 & 2 :Mr. Ashok Kumar Banerjee, Adv.
Mr. Ashim Kumar Routh, Adv.
Ms. Ananya Mondal, Adv.
For the respondent no.3 : Mr. Bhaskar Ghose, Sr. Adv.
Mr. Sib Sankar Das, Adv.
Mr. Susanta Datta, Adv.
Mr. Siddhartha Paul, Adv.
Hearing Concluded On :14th September, 2022
Judgment On :19th September, 2022
Soumen Sen, J.: The appeal and cross appeal are arising out of a preliminary decree passed in a partition suit filed by one Charan Kumar Chabria.
The subject matter of the partition suit is a property situated at 34/1Y, Ballygung Circular Road, Kolkata - 700 019 morefully described in schedule 'A' of the plaint.
2
The property belongs to Charan Kumar Chabria and Shri Karan Chabria. Admittedly they were joint owners of the property in question each having 50% shares in the property until a deed of gift was executed in favour of defendant no.1 and 2. The basis of the partition suit appears to be certain mis-declaration in the deed of gift executed by Karan Chabria in favour of defendant no.1 and 2 exclusively allotting 1st floor in favour of defendant no. 1 and 2nd floor in favour of defendant no.2.
In the plaint, it was contended that as the suit property has not been partitioned by meets and bounds between the plaintiff and the defendant no.3, the defendant no.3 had no right to purportedly transfer entire 1st floor and entire 2nd floor by way of gift in the manner as mentioned in the deed of gift in favour of the defendant no. 1 and 2. Consequently on the basis of the said deed of gift no right, title and interest in the said portions of the suit property as mentioned in the said deed of gift could pass in favour of the defendant no.1 and 2. It was stated that the defendant no.3, doner could not give right, title and interest in the suit property than what he had at the material time or in other words the defendant no.3 could not purport to transfer, demarcate and/or divide portions in the suit property by way of gift in favour of defendant no.1 and 2 unless there is partition amongst the co-owner. It was in view of such infirmities, absurdities and illegality the deed of gift was challenged by Charan Kumar Chabria (in short Charan) prayed inter alia, for a preliminary decree for partition declaring ½ share of the plaintiff and ½ share of the defendant no.3 and on declaration that the deed of gift dated 23rd April, 2002 3 executed by the defendant no.3 is illegal, void, ineffective and not binding upon the plaintiff.
The suit was contested by all the defendants.
The defendant no. 1 and 2 filed a joint written statement. In the said written statement it was contended that Laik Ram Chabria, the father of the parties purchased the suit property in the name of the plaintiff and the defendant no.3. It was further decided by the parties during the lifetime of their father that having regard to the fact that a separate flat having been allotted to defendant no.3 by Laik Ram Chabria being Flat no.2B at premises no. 2A, Rakhal Mukherjee Road, Kolkata- 700 025 and he has been residing there after demise of Laik the said defendant no.3 would execute a deed of gift in favour of his two brothers, defendant no.1 and 2 in respect of 1st and 2nd floor of the portion of the suit property in order to facilitate all the sons of the Late Laik Ram Chabria to use and enjoy their respective separate portions. It was on the basis of such arrangement and agreement between the parties the defendant no. 3 executed a deed of gift in favour of his other two brothers. It was specifically stated that the defendant no.1 and 2 are in exclusive possession of the portions transferred to them by way of gift which was in effect implementation of the amicable partition arrived at between the parties soon after the death of their father. The defendant no.3 since 1999 had been residing separately after the death of his mother on 11th January, 1999 and has voluntarily relinquished his right, title and interest in favour of the respondent no. 1 and 2 of in confirmation of 4 amicable settlement arrived at between the parties and with a view of give effect to pious desire of their father. The said defendants opposed any declaration of validity of the deed of gift dated 23rd April, 2002.
The defendant no.3 filed a separate written statement. In the written statement it was alleged that the said defendant was compelled to execute the deed of gift that was drafted and prepared by Samiran Chakraborty, advocate of the defendant no.1 and 2. It was alleged that from the copy of the plaint the said defendant for the first time ascertained that the said advocate knowing fully well that the plaintiff was a co-sharer of the suit property prepared the said deed of gift and had it executed by the defendant no.3 whereby the defendant no.3 not only had gifted his share in the said property but also the share of the plaintiff. It was alleged that the defendant no.3 had no opportunity to go through the said deed of gift prior to execution and had the true facts were known to him he would not have executed the said deed of gift with such incorrect recitals and disposition. The said defendant also contended that the gift deed is patently void and invalid.
The trial Court on the basis of the pleadings and documents framed the following issues:
i. Is the suit maintainable in its present form?
ii. Has the plaintiff any cause of action to file the suit?
iii. Has the plaintiff any share (50%) in the suit property?
iv. Has the defendant no.3 any right to make deed of gift in respect of the whole suit property?
v. Is the plaintiff entitled to get decree as he prayed?5
vi. To what other relief/reliefs the plaintiff is entitled?
vii. Is the gift deed dated 23.04.2002 executed by defendant no. 3 in favour of defendant no. 1 and 2 is (sic) illegal and void?
viii. Is the plaintiff entitled to get a preliminary decree of partition of the A schedule property?
The trial Court rejected the submission made on behalf of the plaintiff with regard to the validity of the gift deed and passed a preliminary decree for partition in respect of ½ share of the plaintiff in the 'A' schedule property.
This preliminary decree is under challenge.
The respondent no.3 is the principal appellant.
The plaintiff has also filed a cross objection.
Mr. Saptangshu Basu, learned Senior Counsel on behalf of the respondent no.3 submits that the evidence on record would show that the said deed of gift was not the outcome of a free will and free mind. The recital of the deed would show that all the interest of the appellant in respect of property in question was not transferred in favour of the defendant no. 1 and 2. Unless there is a complete transfer of all the interest of the appellant with regard to his share in favour of the defendant no.1 and 2, the said defendants cannot claim any share in the property alleged to have been given under the deed of gift in favour of the said defendants. It is submitted that the transfer by way of gift has not taken place as it was not executed in presence of two attesting witnesses 6 nor the original deed of gift would show that it has been accepted by Yaswant.
Mr. Basu submits that it has been decided in catena of decisions that a scribe or a typist cannot be treated to be an attesting witnesses where the law requires attestation of such documents, for example, a will or a deed of gift. Mr Basu has submitted that attestation would require amino attestandi namely that the attestator should witness the execution of the document thereby implies his presence on the occasion and that he should certify for execution by subscribing his name as a witness which implies conscience and intention to attest which cannot be overcome by producing Panchu Gopal Mondal, the typist.
In support of his submission Mr. Basu has relied upon the following decisions:
i) In N. Kamalam (D) & Anr. v. Ayyasamy & Anr. reported at 2001(7) SCC 503 paragraphs 20, 25, 26 and 27
ii) In Dharmadas Mondal & Ors. v. Kashi Nath De reported at AIR 1959 Cal 243 paragraph 17
iii) In Mst. Samrathi Devi v. Parasuram Pandey & Ors. reported at AIR 1975 Pat 140 paragraph 11.
Mr. Basu submits that admittedly the document does not contain attestation by another person which is sufficient to invalidate the said document under Section 123 of the Transfer of Property Act. It is further 7 submitted that Yaswant having not accepted the gift it is void in so far such transfer is concerned in his favour assuming that the deed of gift is valid.
Mr. Bhaskar Ghosh, the learned Counsel appearing on behalf of the plaintiff submits that his cross objection is limited to the finding of the trial Court with regard to the interpretation of the deed of gift as it gives the impression that the recitals in the deed of gift was accepted by the trial court which is likely to create impediment at the time of final partition. It is an affirmation of allotment of excess area to the said defendant no.1 and 2 by defendant no.3 although he had no right, title and interest over and in respect of such demarcated portions in absence of a partition between the plaintiff and the defendant no.3.
Mr. Ashok Kumar Banerjee the learned Counsel appearing on behalf of the respondent no.1 and 2 submits that the recitals in the deed of gift need to be considered on the basis of the background facts. He has referred to various paragraphs in the written statement filed by the defendant no.1 and 2 in order to give an impression that the defendant no.3 had executed the deed of gift in favour of defendant no.1 and 2 in view of the wish and desire of their father and the amicable settlement arrived at between the brothers. The defendant no. 1 and 2 are in occupation of the portions of the suit premises as correctly described in the deed of gift and such demarcated portion are required to be allotted to them which may be or could be at variance with the share of the other parties.
8
Mr. Banerjee submits that the defendant no. 3 did not file a suit for declaration and cancellation of deed of gift. The said defendant did not even allege that the said deed was not executed by him. He admitted his signature in the deed. The defendant no. 3 did not contend that he had no intention to transfer the said property in favour of defendant no. 1 and 2. Once this aspect of the matter is holistically considered and it is being established beyond any doubt that the doner has the intention to give to the defendant no.1 and 2 the portions of the suit property in their favour by way of gift, the technical objection with regard to non acceptance of the gift by Yaswant or that one of the attesting witnesses did not put his signature in the deed of gift should not stand in the way. Mr. Banerjee however, submits that Yaswant in fact had accepted the deed as he is in possession of the portion allotted to him under the gift deed and there thus has been an implied acceptance of the gift.
Mr. Banerjee submits that Panchu Gopal could be treated to be an attesting witness having regard to his deposition in chief remained unshaken in the cross examination. It is submitted that mere description of Panchu Gopal as typist would not invalid the execution of the deed of gift once the intention of the doner is established and quality of evidence of Panchu Gopal would show that he has consciously put his signature with an intention to attest.
Mr. Banerjee submits that whether under the deed of gift any excess area has been transferred in favour of the defendant no. 1 and 2 are inconsequential in deciding the present appeal as it arises from a 9 preliminary decree whereby the learned trial Court has merely declared the share of the plaintiff. The plaintiff nor the defendant no.3 had denied the execution and registration of the deed of gift. In fact, the defendant no.3 has admitted due execution of the deed of gift. It is submitted that although the defendant no.3 as the doner could have raised a counter- claim in his written statement questioning the validity and legality of the deed of gift but the defendant no.3 has not made any such claim. The reason for denying the deed of gift is apparent failure of defendant no.1 and 2 in installing the lift in the suit premises as regards the contention with regard to acceptance of the deed of gift by the defendant no.1. It is submitted that acceptance could be expressed or implied. There is no requirement in law that such acceptance should be in writing. Having regard to the clear admission in the written statement about the execution of the deed and its reiterations during evidence it is quite clear that the defendant no.1, in fact, had accepted as he was put to possession and continue to remain in possession of the demarcated area mentioned in the deed of gift which has been transferred by the defendant no.3 in favour of defendant no.1.
It is submitted that the recital in the deed of gift would indicate a clear intention to give whole property and not a fraction thereof together with delivery of possession.
Mr. Banerjee submits that it is eminently clear from the document that it was meant for transfer of entire share of Karan to the respondent 10 no.1 and 2 as it is clearly stated that henceforth the property given will be owned and possessed by the donee.
Mr. Banerjee in this regard has relied upon the decision of the Hon'ble Supreme Court in:
i) The State of U.P. & Anr. v. Sayed Abdul Jalil (dead) by his legal representatives reported in AIR 1972 SC 1290.
ii) Kali Prasad Singh v. Ram Prasad Singh & Ors. reported in AIR 1974 SC 148 paragraph 4.
iii) Kuppuswami Chettiar v. A. S. P. A. Arumugam Chettiar & Anr. reported in AIR 1967 SC 1395.
Mr. Banerjee submits that the deed in question is a registered deed. No specific objection has been raised as to its execution. Even if, it is assumed for the sake of argument that Panchugopal is a scribe and not an attesting witnesses even then the due execution and attestation of the deed is proved by Samiran Chakraborty, Advocate. It is not the requirement of law that the deed of gift has to be proved by two attesting witnesses. One of the two attesting witnesses can prove deed of execution and attestation of the deed of gift and nothing more is required to satisfy the requirement of Section 123 of the Transfer of Property Act. In support of the said submission Mr. Banerjee has relied upon Brij Raj Singh (dead) by L. Rs & ors. v. Sewak Ram & Anr. reported at AIR 1999 SC 11 2203 (paragraphs 26 and 33) and Surendra Kumar v. Nathulal reported at AIR 2001 SC 2040 (paragraph 12.) Mr. Banerjee submits that in any event and in view of the fact that Karan has not challenged due execution and attestation of the deed of gift and filed any suit seeking declaration of title and delivery up and cancellation of the said deed now cannot challenge the said deed of gift indirectly. It is submitted that the basis of challenge of the said deed of gift by the plaintiff and Karan are different. Karan has to establish his case with regard to the invalidity of the deed of gift as he is the doner. It is submitted that there is no pleading in the written statement with regard to any fraud or misrepresentation or undue influence or coercion in executing the deed of gift. The pleadings are vague and no evidence can be looked into unless it is based on pleading. Mr. Banerjee accordingly submits that the judgment of the learned trial court is required to be affirmed.
The entire question revolves around the deed of gift. Section 122 defines "Gift" to mean the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee and accepted by or on behalf of the donee. How the gift is to be effective has been stated in Section 123 which envisages that "for the purpose of making a gift of immovable property, the transfer must be 12 effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
Thus, it is seen that the gift of immovable property should only be made for transferring the right, title and interest of the donor to the donee by a registered instrument signed by or on behalf of the donor and must be attested by at least two witnesses. The pre-existing right, title and interest of donor thereby stand divested in the donee by operation of Section 17 of the Registration Act only when the gift deed is duly registered and thereafter the donor would lose title to the property. It must also be proved that the donee had accepted the property gifted over under the instrument." (See. Smt. Gomtibai (dead) through LRs & Ors. v. Mattulal (dead) through LRs reported at AIR 1997 SC 127 (paragraphs 3 and 4) The gift deed shows an intention to give properties described in the deed to the defendants No.1 & 2 and not to retain it in the donor's hands for any purpose.
The recitals in the deed make it quite obvious that the donor intended to convey and did convey his whole ½ share in favour of the defendant Nos. 1 and 2. The clear intention to transfer his interest in the property is also adequately reflected from the statements made by the appellant in his cross-examinations where, inter alia, he has stated:
"I have 50% share in the suit property. Remaining ½ of the suit property belongs to the plaintiff. I have transferred my ½ share of the suit property in favour of defendants Nos. 1 and 2."13
He has also admitted that after execution of the deed he is not in possession of the suit property.
Section 123 of the Transfer of Property Act envisages "for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses." The word "attested" has again been defined in Section 3 of the said Act, which, in relation to an instrument, means "attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument and each of whom has signed the instrument in the presence of the executants. There are only two witnesses in this deed of gift one is Samiran Chakraborty, Advocate and the other is Panchu gopal, typist.
Samiran Chakraborty in his evidence has stated that he has prepared a deed of gift at the instruction of Karan. Karan approved the draft and on his instruction Panchugopal Mondal, the typist of Samiran Chakraborty transcribed the deed on the stamp paper at the chamber of Samiran. Thereafter Karan read the original deed of gift and put his signature in presence of Samiran, Panchugopal and Hemant. Hemant put his signature on the deed of gift at the chamber of Samiran. On the request of Karan Samiran and Panchugopal put their signatures on the deed of gift in his presence as witnesses. Samiran duly identified the signatures of Karan, Hemant and Panchugopal on the deed of gift. He has further stated that after the signature the deed of gift was presented before the District Sub-Registrar-III at Alipore for registration. This 14 evidence of Samiran has remained unshaken in the cross examination. Panchugopal in his evidence has corroborated the statement made by Samiran, during his evidence and he has also duly identified the deed of gift and the signatures of the parties on the deed of gift.
Mr. Saptangshu Basu, learned Senior Counsel has relied upon few decisions to show that Panchugopal cannot be considered to be an attesting witness within the meaning of Section 123 of the Transfer of Property Act. In N. Kamalan (dead) (supra) the Hon'ble Supreme Court was considering whether the signatures of scribe of a will can be equated with signatures of attesting witnesses which are required under Section 63(c) read with Section 68 of the Evidence Act and Section 3 of the Transfer of Property Act for proving due execution of the will. The Apex Court in relying upon the observation of Theobalt on Wills 12th Edn. Page 129 has held that the attesting witness must subscribe with the intent that the subscription of the signatures may stand by way of a complete attestation of the Will and the evidence is admissible to show whether such was the intention or not.
The Hon'ble Supreme Court has also relied upon the decision of a Division bench judgment of our court in Abinash Chandra Bidyanidhi Bhattacharjee v. Dasarath Malo reported at 32 CWN 1228: AIR 1929 Cal 123 which has dealt with an issue similar to one of the issues raised in this matter namely, whether Panchugopal can be considered as an attesting witness. One of the issues in Abinash Chandra (supra) was whether writer of a document signing under separate heading scribe can 15 be considered to be an attesting witness. An illuminating passage of the said judgment authored by Chief Justice Rankin is reproduced below:
"........ A person may be a witness to the execution of a mortgage or a will and yet may not have written his name at the time by way of saying that he was a witness. It is quite clear that in India no formal attestation clause is necessary. Ordinarily a string of signatures towards the end of an instrument or somewhere on the instrument without any explanation will be quite sufficient to show that the persons put their signatures by way of saying that they had seen the document executed or had received an acknowledgment. Again, the mere fact that a person is the scribe or that he puts the word "scribe" after his name will not, in itself, show that he has not put his signature on the document by way of saying that he had seen the instrument executed. Such a signature often occurs under the heading "witness" or, at least among a host of signatures put down without any explanation but obviously as the signatures of witnesses. The present case is not of that sort. The present case is where under the separate heading "scribe" the man has put his name. The question is whether it is right to hold as a matter of law that, even although on the construction of the document the name is put olio intuitu ; the fact that the name is on the document at all makes the man an attesting witness. In my judgment, any such proposition is erroneous. A man's name may be put on the instrument by way of authenticating a statement that the supposed testator-did not execute. It may be put by way of professional advertisement to show that he acted as the scribe or by way of showing that he acted as the scribe for other purposes than professional advertisement. It may be put down for authenticating a particular correction in the body of the deed. In all those cases, it seems to me wrong to say that because the man's signature is on the document at all disregarding the purpose for which it is on the document and disregarding altogether what his signature is put to authenticate the man in question is an attesting witness. To take the ordinary case, a man is an attesting witness when he has seen the execution of the instrument and has put his name on the document by way of saying at the time that he has seen the execution of the document. To meet the cases where the execution is not seen but is acknowledged, this definition would have to be extended.16
The present is not such a case, The purpose of requiring an attesting witness would be entirely defeated by any other rule. The object is that when the factum of the document comes into question it may be years afterwards the document shall be proved by the evidence of witnesses who have this to vouch for the truth of their evidence. I take again the ordinary case the consideration that not only do they now say that at the time when they were present |they saw and witnessed the execution, but they are able to go on to say: "I put my signature on the instrument at the time by way of saying then what I am saying now, namely, that it was executed and that I saw it executed". Any other meaning to the word " attestation "
reduces the whole purpose of this requirement to an absurdity. It seems to me that the definition, if I may so call it, given by Act 27 of 1926 would be entirely perverted if the word " attested " which appears at the beginning of the definition is not correctly considered. For these reasons, it appears to me that in this case the signature as a matter of construction is not capable of being read as an attestation at all.................." The said principle was reiterated by a subsequent judgment of the Division bench of our court in Dharamdas & Ors (supra) where in consideration whether a person merely identifying the executants could be considered to be an attesting witness it was held that :
"17. Mr. Chatterjee conceded on behalf of the appellants that according to the trend of decisions of our High Court, a sub-registrar in whose presence the executant of a deed admits execution, may be regarded as attesting witness, but he contended that an identifier who is called at the time of registration for the purpose of identifying the executant cannot be so regarded, simply because he happens to see the executant affix his or her signature in the deed at the time of registration. In the submission of Mr. Chatterjee, an identifier, in order that he may be regarded as an attesting witness, must do some thing more besides playing the role of an identifier, namely, he must sign the document qua witness of its execution. The view propounded by Mr. Chatterjee gains support from a case reported in Abinas Chandra v. Dasarath Malo AIR1929Cal123 . It 17 seems that a contrary view has been taken in a Full Bench case of the Madras High Court reported in, Veerappa Chettiar v. Subramanya Ayyar:
AIR 1929 Mad 1. where it has been held that the signatures of the registering officer and of the identifying witnesses affixed to the registration endorsement are a sufficient attestation within the meaning of the Transfer of Property Act and its subsequent amending Acts. The full facts of the case are not available from the report, but it may be taken that the learned Judges of the Madras High Court wanted to lay down as a broad proposition of law that an identifier who signs the registration endorsement becomes an attesting witness, although he might have been called for the purpose of identification only. We are not prepared to accept the view taken in the Madras Full Bench case, because it appears to be contrary to the view taken in a Privy Council case reported in Sarkar Barnard & Co. v. Alak Manjari Kuari, AIR 1925 P.C.89. In this case the Privy Council affirmed the view taken by the learned Judges of the Patna High Court that the persons alleged to be attesting witnesses must not only see the execution of the document, but also subscribe their names on the document as having seen the execution. It follows, therefore, that where an identifier who is expressly called for the purpose of identifying the executant merely puts down his signature without subscribing his name on the document as a person having seen the executant sign his name or heard him admit execution of the deed, he cannot be regarded as an attesting witness within the meaning of Section 3 of the Transfer of Property Act. Of course, there is no set or stereotyped form for indicating how an attesting witness should sign, but in our judgment, there must be some indication to show that an attesting witness subscribes his name as such.
21. In our case the identifier signed his name before the registering officer in his capacity as identifier and nothing more. He no doubt says in Court that he saw the executant sign his name and he also signed his name in his presence. At the same time he says that he did not sign as an attesting witness. In our judgment, an identifier signing a deed under these circumstances cannot be regarded as an attesting witness, and we hold that Radhanath did not attest the deed within the meaning of Section 3 of the Transfer of Property Act. The result is that there was only 18 one attesting witness, and that was the sub-registrar before whom the executant had admitted execution. The deed of gift was not, therefore, attested according to law, and it fails for this reason too."
In the instant case, we find substance in the submission of Mr. Basu as we find that Panchugopal had put his signatures at the 6th page of the deed of gift under the heading "typed by" immediately above it is mentioned "drafted by" below the witness column. However, it is only a pyrrhic victory for the appellant.
Mr. Samiran Chakraborty put his signature as an witness and scribe of the said deed of gift. There cannot be any difference of opinion as to the legal proposition that the scribe of a document could also be an attesting witness if he has signed the document with the required animus to attest. In the instant case Samiran Chakraborty is the attesting witness. He has seen execution and signing of the said document by the doner and one of the donees. In view thereof there cannot be any doubt that Samiran signed the document with the required animus to attest. On such consideration even if we accept the submission of Mr. Basu that Panchugopal cannot be considered to be an attesting witness for the purpose of Section 123 of the Transfer of Property Act, it cannot be denied that Samiran is one of the attesting witnesses and the due execution and attestation of the gift deed is proved in accordance with Section 123 of the Transfer of Property Act read with Section 68 of the Indian Evidence Act.
Moreover, the merit of the objection has to be assessed on the basis of the pleadings. If there is a variation between the pleading and the proof 19 it is elementary that the court should discard any evidence which does not have its foundation in the pleadings. It is well settled that no amount of evidence can be looked into upon a plea which was never put forward. It is also equally well settled that the court cannot grant relief to the plaintiff on a case for which there is no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. The appellant has never disputed due execution and attestation of the Will. Hence the decision relied upon by Mr. Basu that the deed of gift has not been properly attested has no merit. The other objection with regard to the deed of gift is that the doner has not transferred all his interest in the property. We are unable to accept the said submission as the intention of the doner to transfer all his interest in the property in favour of the respondent no.1 and 2 have been clearly stated. Once the intention is established it has to be treated as relinquishment of all interest of the appellant in favour of the respondent no. 1 and 2. We feel before the trial court and also before us an attempt was made to build a case dehors the pleadings. The allegations as to invalidity of the deed of gift by Karan were vague and lacking in materials particulars. It was open for the trial court to discard the evidence with regard to the invalidity of the deed of gift by Karan due to a lack of pleading. Karan cannot improve his case in argument or during evidence without having a foundational fact to support such evidence. Karan was not forthright in his challenge to the gift deed. Karan waited for Charan to file ostensibly a partition suit. It is in disguise a challenge to the deed of gift executed by Karan, which Karan 20 would be unable to challenge having consciously transferred the property in favour of the respondent no.1 and 2 by way of gift. Karan was aware of his shortcomings and hence waited for Charan to challenge the deed of gift indirectly.
The cross objection filed by the plaintiff is also unmeritorious as during partition the respondent no.1 and 2 can only get such interest in the property in question as Karan had before the transfer. Karan had transferred his 50% share in the suit property. Whatever deed of gift may say with regard to the possession of the respondent no. 1 and 2 in the suit premises is not determinative of their share or allotment that are to be made in the final decree.
The recitals in the deed of gift are not conclusive of the right to possess areas presently under the occupation of the parties in a suit for partition, as nature and extent of claim based on shares are to be decided in the partition suit. The properties are to be partitioned on the basis of the shares declared. Any area in excess of rightful entitlement of either of the parties in the suit property are to be considered in the final decree proceeding.
During the pendency of the appeal Charan Chabaria filed an application, inter alia, praying for a direction upon the respondent, Hemant to vacate first floor of the suit premises and remove the persons with articles from the suit property with immediate effect. During the pendency of the appeal an application was filed for appointment of an 21 advocate Commissioner in which an order was passed on 20th December, 2021 appointing joint Commissioners of partition. The relevant portion of the order is reproduced below:
"Mr. Biswanath Chatterjee, learned advocate appearing for the appellant submits that in his client's written statement in the suit he has questioned the validity of transfer of his undivided 50% share to one of the co-sharers. If the transfer is adjudged invalid then the subject immovable property would be subject to partition taking his share as 50%. If otherwise, he would have no share in the property.
Taking his issue into consideration, let two plans for partition of the said property be prepared, one assuming that the appellant has no share in the property and another taking into account the fact the he succeeds in the suit and is adjusted to have 50% share in the property."
The said order was passed, in fact, to expedite the partition depending upon the outcome of the appeal. Now that Karan would have no share in the property it has to be divided in accordance with the shares declared under the preliminary decree.
In view of the fact that we have dismissed the appeal the original report filed by the Joint Commissioner of partition may be sent down to the 1st Court of Civil Judge (Sr. Div.) at Alipore in connection with Title Suit no. 19 of 2005 after retaining a Photostat copy of the same along with LCR within two weeks from date for expediting the final decree proceeding. The learned Trial Judge is requested to conclude the final decree proceeding as expeditiously as possible and without granting any adjournment to either of the parties unless it is unavoidable. 22
The learned trial judge in the said proceeding may take into consideration the said report. However, the acceptance of the said report is left to the discretion of the learned trial Judge. The parties shall be heard on the said report before acceptance. The discretion to be exercised by the learned Trial Judge in the final decree proceeding is not been fettered by the aforesaid direction.
We do not propose to decide CAN 5 of 2022 as it is not necessary for us to decide the said application in this appeal. The applicant namely, the plaintiff Charan Chabaria shall be at liberty to file a fresh application in the final decree proceedings seeking self same reliefs.
The appeal and the cross objection fails. CAN 5 of 2022 stands disposed of with the liberty to apply for the self same relief before the trial court, if so advised.
However there shall be no order as to costs.
I agree (Soumen Sen, J.) (Siddhartha Roy Chowdhury, J.) Later:
Prayer for stay made by the appellant is considered and rejected.
(Siddhartha Roy Chowdhury, J.) (Soumen Sen, J.)