Calcutta High Court (Appellete Side)
345/2008 on 20 January, 2011
Author: Subhro Kamal Mukherjee
Bench: Subhro Kamal Mukherjee
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S. A. T. No. 345 of 2008
(C. A. N. 9010 of 2010)
Mr. Chandi Charan Dey,
Mr. Shyamal Kumar Das,
Mr. Somnath Banerjee,
Mrs. Bineeta Bhattacharya
........for the appellants.
Mr. Partha Pratim Roy
....for the respondents.
Mr. Chandi Charan Dey, learned advocate appears and submits that he has filed fresh vakalatnama on January 20, 2011 under filing no. A-1079 on behalf of the appellants after obtaining no objection from the erstwhile learned advocate for the appellants.
The office is directed to incorporate the vakalatnama with the file.
This is a second appeal against judgment of affirmance.
Both the courts' below concurrently dismissed the suit for declaration of title and for permanent injunction.
Admittedly, Balika Sundari Dasi was the owner of the property-in-suit. On September 1, 1959, she executed a deed of gift in favour of minor Sachidulal Birbanshi, who happened to be her maternal uncle's grand son. Sachidulal was minor. Therefore, the deed of gift was accepted by his father Anadi Birbanshi on 2 behalf of the minor. Anadi, as the natural guardian of the minor, executed a deed of sale in favour of one Volanath Chandra on November 9, 1960. Volanath Chandra bequeathed the property-in-suit in favour of his sons by executing a will. Volanath is dead. He left behind him his last will and testament, which has, already, been probated. Sons of Volanath are the defendants in the suit. When the land reforms revenue settlement commenced, the defendants went to record their names before the settlement officer. At that time, the settlement officer pointed out a mistake in the deed of gift executed by Balika Sundari Dasi; it was noticed that the plot number was mentioned wrongly in the deed of gift as plot no. 749/410. The defendants approached Sachidulal Birbanshi, who executed the deed of confirmation on July 10, 1987, inter alia, contending that by original deed of gift, plot no. 410/819 was gifted to him.
The plaintiffs claimed that the Balika Sundari Dasi never executed deed of gift and the possession was never delivered to the donee.
Both the courts' below concurrently found, as findings of fact, that, in fact, plot no. 410/819 was gifted, but by mistake the plot number was wrongly recorded as 749/410.
The concurrent findings of the courts' below are fortified by further concurrent findings that the defendants were in possession of the property-in-suit. The courts' below, also, found that these plaintiffs are not the heirs of Balika Sundari Dasi. Therefore, they do not have any right, title and interest in respect of the suit property.
From the deed of gift it appears that Sachidulal Birbanshi was the grandson of maternal uncle of Balika Sundari. The plaintiffs are the other brothers of Sachidulal Birbanshi. They are not the natural heirs of Balika Sundari Dasi. Our 3 reading of provision of Sections 15 and 16 of the Hindu Succession Act, 1956 is that the plaintiffs and Sachidulal never inherited the property as the natural heirs. However, Sachidulal got the property by way of deed of gift.
It was argued vehemently that the deed of rectification was executed by Sachidulal, but not by the original donor.
It is settled principle of law that it is the duty of the court to ascertain the original intension of the parties; mere mistake in the deed does not vitiate the deed itself.
As we do not find that there is any substantial question of law involved in this second appeal, we summarily dismiss the appeal under Order XLI, rule 11 of the Code of Civil Procedure.
In view of disposal of the appeal, the connected application for injunction filed under C. A. N. 9019 of 2010 becomes infructuous and the same is, also, dismissed.
We make no order as to costs.
(Subhro Kamal Mukherjee, J.) (Tarun Kumar Gupta, J.) 4