Tripura High Court
Smti. Swapna Roy (Karmakar) W/O. Sri ... vs Unknown on 26 September, 2022
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 16
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
RSA. No. 15 of 2020
1. Smti. Swapna Roy (Karmakar) W/O. Sri Bhulu Karmakar, D/O.
Late Prava Roy, of Dhaleswar Road No. 6, P.O. - Dhaleswar,
P.S. - East Agartala, District - West Tripura, Pin - 799007
2. Sri Surja Karmakar, S/O. Lt. Hari Charan Karmakar, (Husband
of Lt. Prava Roy), of Town Pratapgarh, Agartala, P.S. - East
Agartala, District - West Tripura
.....Plaintiff-respondent-appellants
3. Sri Apu Roy, S/O. Lt. Pramila Roy, L.Rs of late Dipak Kr. Roy, S/O Late Pramila Roy,
4. Mrs. Rekha Roy, W/O. Lt. Dipak Kr. Roy,
5. Smti. Titu Roy, D/O. Lt. Dipak Kr. Roy,
6. Smti. Mithu Roy D/O. Lt. Dipak Kr. Roy, All are residents of Ramnagar Road No. 4, Agartala, P.O. Ramnagar, PIN - 799002, West Tripura District LRs of Lt. Smti. Kalpana Roy,D/O. Lt. Pramila Roy, *****As per the Hon'ble Court's order dated 23.08.2022 passed in I.A. No.01 of 2022, the name of appellant No.7 is struck out from the cause title.
8. Sri Pritam Chanda S/O. Lt. Kalpana Roy,
9. Smti. Uma Roy D/O. Lt. Pramila Roy, All are residents of Bordwali, Near Bash Patti, P.O. A.D. Nagar, P.S - West Agartala, Dist. West Tripura
10. Smti. Rama Roy (Das), W/O. Sri. Sajal Ghosh D/O. Lt. Pramila Roy, of Krishnanagar, Near Megnet Club, P.S- West Agartala, District - West Tripura .....Defendant-appellants Page 2 of 16
-V-E-R-S-U-S-
1. Sri Ajit Kumar Roy, S/O. Late Nikinjua Kishore Roy,
2. Sri Babul Roy, S/O. Late Jagat Kishore Roy,
3. Sri Ajay Roy, S/O. Late Barada Kishore Roy,
4. Sri Prabodh Chandra Roy, S/O. Late Binode Behari Roy, All are residents of Ramnagar Road No. 4, Agartala, P.O. Ramnagar, District - West Tripura, PIN - 799002 .....Appellant-respondents
5. Smti. Sulekha Roy, W/O. Lt. Subodh Ch. Roy,
6. Shri Supratik Roy, S/O. Lt. Subodh Ch. Roy, All are residents of Ramnagar Road No. 4, P.O. - Ramnagar, P.S. West Agartala, District - West Tripura, PIN - 799002
7. Smti. Sumita Roy, W/O. Sri Dipankar Sarkar, D/O. Lt. Subodh Ch. Roy, of Gorkhabasti, Located near the P.O. - Gorkhabasti, P.S - East Agartala, West Tripura District.
8. Sri Amuly Ch. Roy,
9. Sri Sankar Roy, All are sons of Lt. Hem Kishore Roy, of Ramnagar Road No. 4, Near Raj Bhandar, P.O.Ramnagar, P.S. - West Agartala, District:
West Tripura.
10. Smti. Chhaya Roy (Majumder), W/O. Sri Sarbeswar Majumder, of Ronaldsay Road, Battala, P.S. - West Agartala, District: West Tripura
11. LRs of Late Bimala Roy,
a) Sri Ranjit Kumar Roy
b) Sri Biswajit Roy (@ Dulal Roy) all are sons of Lt. Satish Ch. Roy, resident of Ramnagar Road No. 2 (in the first part), P.O. - Ramnagar, P.S. - West Agartala, PIN: 799002.
c) Sri Sanjit Kumar Roy
d) Sri Sujit Kumar Roy
e) Sri Indrajit Roy (@ Kajal Roy)
f) Sri Pranjit Roy (@ Sajal Roy)
Page 3 of 16
all are sons of Lt. Satish Ch. Roy, Resident of Beltali, Near P.W.D. Godown, P.O. - A.D. Nagar Road No. 8, West Tripura District, PIN - 799003 .....Defendant-respondent(s) B_E_F_O_R_E HON'BLE MR. JUSTICE T. AMARNATH GOUD For Appellant(s) : Mr. T. K. Deb, Advocate.
Mr. A. K. Deb, Advocate.
For Respondent(s) : Mr. S. M. Chakraborty, Sr. Advocate.
Ms. A. Pal, Advocate.
Date of hearing : 23.09.2022
Date of delivery of
judgment and order : 26.09.2022
Whether fit for reporting : NO
JUDGMENT & ORDER
Heard T. K. Deb, learned counsel assisted by Mr. A. K. Deb, learned counsel appearing for the appellants. Also heard Mr. S. M. Chakraborty, learned senior counsel assisted by Ms. A. Pal, learned counsel appearing for the respondents.
[2] During the course of argument, learned counsel appearing for the appellants upon instructions has submitted that he is not pressing the present appeal for the other appellants except the appellant No.1 and 2 i.e. Smti. Swapna Roy (Karmakar) and Sri Suraj Karmakar. Accordingly, the present appeal insofar as the other appellants i.e. Sri Ajit Kumar Roy, appellant-respondent No.1, Sri Babul Roy, appellant-respondent No.2, Sri Ajay Roy, appellanbt-respondent-3, Sri Prabodh Chandra Roy, appellant- respondent No.4, Sri Apu Roy, appellant No.3, Mrs. Rekha Roy, appellant No.4, Smti. Titu Roy, appellant No.5, Smti. Mithu Roy, appellant No.6, Sri Pritam Chanda, appellant No.8, Smti. Uma Roy, appellant No.9 and Smti. Rama Roy (Das), appellant No.10 stands dismissed as not pressed.
Page 4 of 16[3] This is an appeal under Section 100 of the CPC read with Section-151 of the CPC for setting aside the judgment and decree dated 02.12.2019 and 16.12.2019 respectively passed by the learned District Judge, West Tripura District, Agartala in connection with Title Appeal No.53 of 2011 arising out of the judgment and decree dated 29.08.2010 passed by the learned Civil Judge, Jr. Division, Court No.2, Agartala in Title Suit (Partition) 61 of 2006. At the time of admitting the appeal, the following substantial question of law was formulated by this Court:
"Whether the findings of the learned First Appellate Court are perverse and based on no evidence?"
[4] The facts that would essentially be required for appreciating the substantial questions of law may be introduced at the beginning. The factual background of the plaintiff‟s case, in a nutshell, is that the The factual matrix of the plaintiff‟s case in brief may be summarized is that the predecessor in interest of plaintiff and defendants Lt. Chandra Kishore Roy was the owner of land measuring 2 kanies 4 gandas 1 kara 2 kranta and 2 dhurs classified as bastu, pond and bank of pond. The said Lt.Chandra Kishore Roy died leaving behind 5 sons and 2 daughters namely (1) Nikunja Kishore Roy, (2) Jagat Kishore Roy, (3) Barada Kishore Roy, (4) Hem Kishore Roy, (5) Binod Behari Roy (all are sons of Lt.Chandra Kishore Roy) and (1) Smt. Bimala Roy and (2) Smt. Pramila Roy (are two daughters of Lt. Chandra Kishore Roy).
[5] The Lt.Chandra Kishore Roy died without making any partition of the property. After the death of Lt.Chandra Kishore Roy in the year 1987 the daughter of deceased Hem Kishore Roy and granddaughter of Lt.Chandra Kishore Roy namely Smti Chhaya Roy and wife of Hem Kishore Roy and daughter in law of Lt. Chandra Kishore Roy namely Lt. Sarada Roy executed a gift deed in favour of all the 3 sons of Lt. Hem Page 5 of 16 Kishore Roy and grand sons of Lt.Chandra Kishore Roy (through Lt. Hem Kishore Roy) illegally depriving the legal heirs of one daughter of Lt.Hem Kishore Roy and granddaughter of Lt. Chandra Kishore Roy namely Smt. Swapna Roy(Karmakar) daughter of Lt.Prava Roy ( Lt.Prava Roy is the one of daughter of Lt.Hem Kishore Roy and granddaughter of Lt.Chandra Kishore Roy) mentioning as 2/5th share of inherited land of Lt.Hem Kishore Roy and therefore the said gift deed is liable to be declared as illegal, inoperative and void.
[6] It is further case of the plaintiff that in the year 1987 on 30- 12-1987 the legal heirs of Lt.Chandra Kishore Roy illegally partitioned the inherited property of Lt. Chandra Kishore Roy depriving the daughters of Lt.Chandra Kishore Roy namely Smt. Bimala Roy and Smt. Pramila Roy who are defendant Nos. 9 & 10 of the present suit and also depriving the daughter of Lt.Prava Roy and granddaughter of Lt. Hem Kishore Roy and grand grand daughter of Lt. Chandra Kishore Roy namely Smt. Swapna Roy(Karmakar) who is the plaintiff of the present case and therefore the said partition deed is also liable to be declared as as illegal, inoperative and void.
[7] The learned trial Court after hearing both the parties and considering the oral and documentary evidence vide judgment dated 29.08.2010 decreed the suit deciding all the five issues in favour of the appellants holding thus:
"In the result, the suit of the plaintiff is decreed on contest with cost with a declaration that the plaintiff is entitled to partition of the suit land and her share will be determined accordingly and the gift deed bearing No.1- 7767, dated 17-12-1987 and the partition deed bearing No.1-7972, dated 30-12-1987 are illegal, void and inoperative. And the land described in schedule A of the amended plaint will be partitioned equally into 7 (seven)share among the 5 (five) sons and 2 (two) daughters of Lt.
Chandra Kisore Roy. The sharer who has died their legal heirs will be entitled to the share of his predecessor and the Present plaintiffs will be Page 6 of 16 entitled to 2/6th share out of 1/7th from the land and property of the Lt. Chandra Kishore Roy.
The plaintiff and defendants are directed to amicably partition the suit land among themselves within 60 days by meets and bounds failing which any party to the suit may approach to this court by filing an application on the next date fixed for final partition decree by meets and bounds by appointing a survey commissioner."
[8] The 1st appeal being preferred under Section-96 of the CPC by the defendant-respondent No.5, Sri Ajit Kumar Roy, defendant- respondent No.6, Sri Babul Roy, Defendant-respondent No.7, Sri Ajoy Roy and defendant-respondent No.8 Sri Prabodh Ch. Roy of amended plaint against judgment and decree dated 29.08.2010 passed in T.S.(Partition) No.61 of 2006 by the learned District Judge, West Tripura District, Agartala and the appeal subsequently registered as Title Appeal No.53 of 2011 wherein, the learned Court aafter hearing both the parties, has observed as under:
"In view of above said discussion, it is held that no decree of partition in respect of „B‟ Schedule land of the plaint can be passed. So far the deed of partition bearing No. 1-7972 dated 30.12.1987 is concerned, the same will be effective only to the extent of legitimate share of the parties to said deed and not beyond the same as discussed above. Similarly, so far the gift deed bearing No.1-7767 dated 17.12.1987 is concerned, same will remain valid and effective only in respect of legitimate share of the executants namely, Late Sarada Roy and Smti. Chhaya Roy as indicated above and not beyond the same. With such observation the impugned judgment dated 29.08.2010 passed by the Learned Civil Judge (Junior Division), Court No.2, Agartala, West Tripura in Title Suit (Partition) No.61 of 2006 and consequent decree thereof are hereby set aside. The appeal is partly allowed."
[9] Being aggrieved by and dissatisfied with the impugned judgment and decree dated 02.12.2019 and 16.12.2019 respectively, passed by the learned District Judge, West Tripura District, Agartala in Title Appeal No.53 of 2011, the present appeal has been preferred by the plaintiff-respondent-appellants.
Page 7 of 16[10] Mr. T. K. Deb, learned counsel appearing for the appellants has submitted that the learned Court below committed gross mistake both in facts and law and hence the impugned judgment is liable to be set aside. The findings of the learned 1st Appellate Court are not based on relevant admissible oral and documentary evidence. He has submitted that no point for decision formulated by the 1st Appellate Court required under Order- XLI Rule-31 of the CPC as such, the judgment of the learned appellate Court is not a proper judgment of reversal inasmuch as learned 1 st Appellate Court did not apply its judicious mind to the findings arrived at by the learned trial Court.
[11] He has submitted that though in the relief portion of the plaint, the appellants have not prayed for partition of "A" schedule land among the five sons and two daughters and to give 1/7th share to each of them from the joint land, but it would appear from the pleadings that appellants have neither suppressed the fact of excluding defendant- respondents No.9 and 10 from the alleged partition deed No.1-7972 dated 30.12.1987 by way of depriving from giving their 1/7 th share rather it would appear that the original suit land duly described in "A" schedule of the plaint out of which the defendant-respondents Nos.9&10 both are entitled to get one share from the suit land as mentioned in the plaint as "A" schedule land.
[12] It is also admitted fact of both the parties which also came from the evidence of both the parties that late Chandra Kishore Roy expired surviving five sons and two daughters i.e. defendants No.9 and 10 and said two daughters have neither been made party in the alleged partition deed nor given any share to them. Moreover, it also appears from the joint written statements of some defendants that though they firstly denied but, subsequently they also admitted that said two daughters of late Page 8 of 16 Chandra Kishore Roy are entitled to get their share from "A" schedule land of the plaint and the learned 1st Appellate Court though admitted in paragraph-14 of the impugned judgment that whole property of late Chandra Kishore Roy was partitioned by five legal heirs or their successors i.e. each got 1/5th share and said Bimala Roy and Pramila Roy were excluded therefrom [13] Mr. Deb, learned counsel has contended that the learned 1 st Appellate Court opined that though the learned counsel for the respondents strenuously argued that said Pramila Roy in her first written statement submitted along with four others admitted that said Chandra Kishore Roy died on 07.02.1951 but even if, it is stated to be her admission, same is not binding on the plaintiffs or another daughter, Bimala Roy. And further held that even one declaration executed by said Bimala Roy and Pramila Roy were tried to be taken into evidence from the side of the defendants but only signatures of Bimala Roy and Pramila Roy were proved therein, but the contents of the declaration was not proved, nor whole document was taken into evidence. Thus, the same also cannot be taken into consideration.
[14] It has been further opined by the 1st Appellate Court that whole property of late Chandra Kishore Roy was partitioned by five legal heirs of their successors, i.e. each got 1/5th share and said Bimala Roy and Pramila Roy were excluded therefrom. But subsequently, wrongly held "thus to that extent, said deed of partition is ineffective though not void as a whole and ultimately, committed gross error by setting aside the findings of the learned trial Court for partition of the "A" schedule land afresh by giving 1/7th equal share among all the legal heirs including defendants No.9 and 10. Thus, the findings of the learned 1st Appellate Court need to be set aside.
Page 9 of 16[15] Let us analyze the evidence on record and discuss both factual and the legal aspect of the case, before determining the points for decision. Defendant No.1 to 3 in their written statement stated that Chandra Kishore Roy died on 07.02.1951 and as such his widow and two daughters did not inherit his property as per old Hindu law as matter was before legislation of Hindu Succession Act. However, to avoid future dispute and differences, amicable partition was made between other the legal representatives of Chandra Kishore Roy and accordingly, said deed of partition was executed by the sons of Chandra Kishore Roy or their successors. According to them, after death of Hem Kishore Roy, they i.e. three sons of Hem Kishore Roy, their mother and one sister became co- owners in equal share in the property left by Hem Kishore Roy and thereafter, the mother and sister transferred their share to them by way of gift. After death of defendant No.1, his three legal representatives adopted the written statement submitted by their predecessor.
[16] Defendant No.4 Smti. Chhaya Roy in her written statement admitted that the plaintiff No.1 Smti. Swapna Roy was the daughter of Late Prabha Roy and husband of Late Prabha Roy was Sri Bhulu Karmakar. She also stated that said deed of partition was made depriving two daughters of Late Chandra Kishore Roy and also by depriving two daughters of Late Hem Kishore Roy. She further stated that other defendants took her sons‟ signatures in a deed with assurance that they would not deprive her from her proper share in the whole joint property and at that time she was passing through post child delivery complications and taking such advantage her signatures were taken in the said gift deed by practising fraud upon her. She also supported the plaintiffs prayer for declaring said two deeds to be void and according to her, the correct share of Hem Kishore Roy in the joint stock would be 0.177 acre. She also stated that at present the share portion of Hem Kishore Roy is under possession Page 10 of 16 of defendant No.1(a) i.e. wife of Late Subodh Chandra Roy. She also grived against her deceased brother Subodh Ch. Roy that during his life time, he didnot perform his moral and social duties towards his mother and now the wife of Subodh Ch. Roy was possessing the suit land.
[17] Defendant Nos.5 to 8 and 10 in their joint written statement stated that said Chandra Kishore Roy died on 07.02.1951 i.e. much before the enactment of Hindu Succession Act, 1956 and therefore, his widow and two daughters did not inherit the property left by him and only his five sons had inherited the same. They also stated that in the year 1987 two sons of Late Chandra Kishore Roy were alive when three others sons had expired and to avoid future dispute and differences the legal representatives of Chandra Kishore Roy amicably partitioned the whole property through a deed of partition bearing No. 1-7972 which was executed by two sons of Late Chandra Kishore Roy namely, Jagat Kishore Roy and Barada Kishore Roy and legal representatives of three deceased sons namely, Late Nikunja Kishore Roy, Late Binode Behari Roy and Late Hem Kishore Roy and after said partition, share of them were demarcated and now they are enjoying their respective share peacefully by constructing huts thereon. They also stated that the present plaintiff No.1 being granddaughter of Late Hem Kishore Roy might have some share in the property left by Late Hem Kishore Roy but she could not have any claim on the share of other legal representatives of Chandra Kishore Roy and they were unnecessarily made party in the suit. Thus, practically, the defendant Nos. 5 to 8 supported the defence of defendant Nos. 1 to 3.
[18] Defendant No.9, another daughter of Chandra Kishore Roy namely Smti Bimala also supported the plaintiff stating that she along with her sister i.e. defendant No.10 are also entitled to get one share each in the whole land of Chandra Kishore Roy i.e. „A‟ schedule land and said deed of Page 11 of 16 partition was executed depriving her and as such it was liable to be set aside. She also supported the story of the plaintiffs that their predecessor Late Prabha Roy was entitled to one share in the land of Late Hem Kishore Roy and the gift deed was therefore liable to be quashed. She in her prayer portion of written statement prayed for partition of entire „A‟ Schedule land for giving her share therein but no separate counter claim was submitted by her.
[19] Said defendant No.10 Late Pramila Roy (who was one of the daughter of Late Chandra Kishore Roy) though filed her joint written statement with defendant nos. 5 to 8 supporting the version of defendant nos. 1 to 3, but again submitted another written statement subsequently and asserted that she along with her sister Smti. Bimala Roy were entitled to get partition of the whole „A‟ Schedule land having their one share each therein. She also statedthat the deed of partition was executed most illegally depriving herself and her said sister. She further supported the plaintiffs that said gift deed executed by wife and another daughter of Late Hem Kishore Roy was void as share of Late Prabha Roy was omitted therefrom. She also stated that the total share of Hem Kishore Roy in the joint stock was 0.177 acre which was required to be distributed to all the legal heirs of Hem Kishore Roy including the present plaintiffs. In her written statement she also ultimately prayed for partition of „A‟ Schedule land in favour of all the legal representatives of Late Chandra Kishore Roy including herself. But no counter claim was submitted by her in this regard.
[20] Learned Trial Court thereafter framed total five issues which are as follows:
"(i) Whether the suit is maintainable in its present form and manner?
(ii) Wheher the plaintiff is entitled to a decree of partition?
(iii) Whether the plaintiff is entitled to a decree declaring herself to be 1/6th sharer over the suit land as described in the schedule?Page 12 of 16
(iv) Whether the plaintiff is entitled to other decree?
(v) Whether the plaintiff is entitled to any other relief or reliefs?"
[21] From the side of the plaintiff, Smti. Swapna Roy examined herself as PW.1 and also proved certain documents which were marked as Exbt.1 to Exbt.8. From the side of the defendants five witnesses were examined and they proved signatures of Smti. Bimala Roy and Smti. Pramila Roy on an affidavit of disclaimer. Learned Trial Court finally decided all the issues in favour of the plaintiffs.
[22] During argument, learned senior counsel Mr. S.M. Chakraborty submitted that another appeal was filed against the impugned judgement by some of the legal heirs of Hem Kishore Roy and said appeal has been dismissed for default in the Court of Ld. Addl. District Judge (Court No.4), West Tripura. He argued that the suit was time barred as cause of action arose first in the year 1987 regarding the deed of partition and suit was filed in the year 2006 and the Article 58 of Limitation Act would govern the case for deciding limitation period, and not Article 59. Moreover, as per Section 3 of Limitation Act, if one relief is found time barred, the entire suit will be dismissed.
[23] He also argued that in the joint written statement defendant Pramila Roy was a signatory who did not support the case of the plaintiff. But later on she turned otherwise for certain reasons best known to her, however her subsequent written statement was barred under Order-VIII Rule-9 of C.P.C. and Trial Court wrongly took the said written statement into consideration. He also argued that when the plaintiffs prayed for partition of land of Hem Kishore Roy, Learned Trial Court had illegally passed a judgement for partition of whole land of Chandra Kishore Roy going beyond the pleadings of the plaintiffs. Thus, he prayed for setting aside the impugned judgement and decree.
Page 13 of 16[24] Mr. T. K. Deb, learned counsel appearing for the appellants has submitted that the relief regarding declaration of the partition deed to be void was not time barred as the plaintiffs could learn about the same only in the year 2006. He also referred relevant paragraph No.16 of the plaint in this regard. According to him, learned trial Court rightly held that the respondents could not prove that Late Chandra Kishore Roy died in the year 1951 and therefore, the partition deed was executed illegally depriving two daughters of Late Chandra Kishore Roy.
[25] Here the main contesting defendants asserted in their written statement that Chandra Kishore Roy died on 07.02.1951 but they could not prove the same by adducing any satisfactory evidence. Normal presumption will be that Chandra Kishore Roy had left 5 sons and 2 daughters and as such all of them will get share in the property of said Late Chandra Kishore Roy. It is he who intends to exclude said daughters of Chandra Kishore Roy from inheritance, is to prove that said Chandra Kishore Roy died on 07.02.1951 or before enactment of Hindu Succession Act, 1956. On failure to prove the same by said contesting defendants, as stated above, the necessary corollary will be that said Bimala Roy and Pramila Roy are/were also entitled to get share in the land left by said Chandra Kishore Roy.
[26] Though Learned Senior Advocate Mr. S.M. Chakraborty streneously argued that said Pramila Roy initially in her first written statement submitted along with four other defendants admitted that said Chandra Kishore Roy died on 07.02.1951, but even if, it is stated to be her admission, same is not binding on the plaintiffs or another daughter namely, Smti. Bimala Roy. One declaration executed by said Bimala Roy and Pramila Roy were tried to be taken into evidence from the side of said defendants but only signatures of Pramila Roy and Bimala Roy were Page 14 of 16 proved therein but the contents of the said declaration was not proved, nor the whole document was taken into evidence. Thus, same also cannot be taken into consideration. The partition deed bearing No.1-7972 dated 30.12.1987 was executed by (i) son of Nikunjya Kishore Roy namely, Ajit Kishore Roy, (ii) Jagat Kishore Roy, (iii) Barada Kishore Roy, (iv) Prabodh Chandra Roy, Son of Binode Behari Roy and(v) Subodh Chandra Roy and his two other brothers who are sons of Late Hem Kishore Roy and the whole property of Chandra Kishore Roy was partitioned amongst said five sons of Chandra Kishore Roy or their successors i.e. each got 1/5th share and said Bimala Roy and Pramila Roy were excluded therefrom. Thus, to that extent, said deed of partition is ineffective though not void as a whole.
[27] On the basis of said mutual partition, 5 numbers of Khatians were opened in the revenue record viz. Khatian No.1403 in the name of Subodh Chandra Roy and his two brothers for land measuring 0.177 acre, Khatian No.908 in the name of Baroda Kishore Roy for land measuring 0.177 acre, similarly khatian No.24899 in the name of Ajit Kishore Roy for landmeasuring 0.167 acre and Khatian No.24900 in the name of Jagat Kishore Roy for land measuring 0.176 acre. Similarly, Khatian No.25071 was also opened in the name of Prabodh Chandra Roy for land measuring 0.177 acre. All these documents weremarked as Exbt.3 series.
[28] Now, the plaintiffs have prayed for partition of land of said Khatian No.1403 standing in the name of Subodh Chandra Roy, Amulya Chandra Roy and Sankar Chandra Roy i.e. three sons of Late Hem Kishore Roy for an area of 0.177 acre. Said Khatian was created giving effect to said partition deed. When said BimalaRoy and Pramila Roy will get some portion of land from the land of Chandra Kishore Roy, certainly the share portion of said Subodh Chandra Roy, Amulya Chandra Roy and Sankar Page 15 of 16 Chandra Roy will become lesser and area of land measuring 0.177 acre will be reduced from said Khatian No.1403. Therefore, no decree of partition can be passed at this stage on the said land area of 0.177 acre.
[29] Said Hem Kishore Roy left behind him, his three sons namely, Subodh Chandra Roy, Amulya Chandra Roy, Sankar Chandra Roy and two daughters namely, Late Prabha Roy and Smti. Chhaya Roy. Wife of Hem Kishore Roy is dead. As a daughter of Hem Kishore Roy, said Prabha Roy was entitled to get 1/6th share from the land of said Late Hem Kishore Roy but in the gift deed bearing No.1-7767 dated 17.12.1987 (Exbt.2) said Late Sarada Roy and Smti. Chhaya Roy had transferred their share in the said property of Hem Kishore Roy in favour of Subodh Chandra Roy, Amulya Chandra Roy and Sankar Chandra Roy mentioning their respective share to be 1/5th each whereas said Late Sarada Roy and Smti. Chhaya Roy had 1/6th share each in the said property.
[30] Thus, the said gift deed though valid otherwise but is ineffective in respect of the excess share transferred by them to said three brothers by way of gift. Said Late Prabha Roy had also her 1/6th share in the land of Late Hem Kishore Roy. Though Smti. Chhaya Roy stated that when she was suffering from post delivery complications, her signatures were taken in the deed by exercising fraud and undue influence upon her but she could not prove the same. More so, the deed being a registered deed has its own presumptive value in its favour.
[31] It is a settled legal proposition that as a rule, relief not found on the pleadings should not be granted. Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. Ordinarily, the reliefs are drawn on the basis of pleadings. Even in some cases, on the basis of pleadings the court can mould the reliefs. But the foundation of such relief must have its anchor in the pleadings. It is always Page 16 of 16 the creditor who has final call in the matter, unless contrary of law and is provided by lawful agreement. Having observed thus, the impugned judgment & decree passed in TA No. 53 of 2011 dated 02.12.2019 and 16.12.2019 by the learned District Judge, West Tripura District, Agartala, needs no interference whatsoever. Accordingly, this Court is of the view that there is no infirmity in the findings arrived at by the learned Court below hence; the appeal preferred by the appellants stands dismissed. As a sequel, miscellaneous applications pending, if any, shall stand closed.
[32] Before parting with this appeal, it is pertinent to mention here that since the said litigation pertains to the family partition and settlement, keeping in view of the family relationship and the bondage in future they to maintain cordial relationship, this Court keeps it open amongst the parties if they are so advised and desire to settle the matter amongst the family members and it always open for them to do so.
[33] Draw the decree accordingly and send down the LCRs thereafter. As a sequel, miscellaneous applications pending, if any, shall stand closed.
JUDGE A.Ghosh