Calcutta High Court (Appellete Side)
Sikha Sarkar vs Amitava Chowdhury & Ors on 18 July, 2024
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
18.07.2024.
Court No. 13
Item No. 34
sp F.A. No. 294 of 2014
With
CAN 5 of 2023
With
CAN 7 of 24
Sikha Sarkar
Versus
Amitava Chowdhury & Ors.
Mr. Siva Prasad Ghosh,
Ms. Srijani Mukherjee
...For the appellant.
1. Despite notice the respondents are not represented.
There is an affidavit of service on record.
2. The instant appeal is directed against the judgment
and order dated 11th August, 2014 passed by the
learned Civil Judge (Senior Division), 2 nd Court at
Contai, Purba Medinipur. The said judgment was
passed in four several suits that were heard
analogously. The said suits are as follows:-
The Suits
(a) The first suit, is T.S. 14 of 2012 previously 178
of 1998 filed by the appellant Sikha Sarkar
against the aforesaid legal heirs of Late Sushil
Kumar Chowdhury respondents and the
Administrator of Digha Development Scheme
(DDS). She prayed for decree seeking permanent
injunction against the respondents from
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transferring the suit property to anyone except
herself.
(b) The second suit being T.S. 15 of 2012 previously
(T.S. 26 of 1999) has been filed by the appellant
Sikha Sarkar for declaration against the legal
heirs of the said Sushil Kr. Chowdhury and the
DDS seeking a declaration that she has right
title and interest on the whole suit property and
that the power of attorney dated 13.01.1997 was
void and illegal and permanent injunction
restraining the legal heirs of Sushil Chowdhury
from interfering with her peaceful possession of
the entire suit property and the hotel business.
(c) T.S. 13 of 2012 (previously T.S. 32 of 1999) is
the third suit, filed by Amitava Chowdhury and
five others claiming to be the legal heirs of one
Sushil Kumar Chowdhury against the appellant
Sikha Sarkar. In the said suit, the
plaintiffs/respondents have prayed for partition
of the suit property and have sought accounts of
a hotel called "Suman Hotel" situated at the suit
property (Land and Building) at Digha (a popular
sea resort in the South Bengal).
(d) The fourth suit being O.S. 16 of 2012 (previously
T.S 134 of 2001) has been filed by Sikha Sarkar
for transfer of the share of Sushil Kr.
Chowdhury in the suit property, in her favour
3
by the legal heirs of the said Sushil Kr
Chowdhury and the administrator of DDS. She
sought specific performance of the agreement
dated 08.10.1991 against the respondents.
Facts of the Case:
3. The case of the respondents/plaintiffs/legal heirs of late Sushil Kumar Chowdhury in the plaint in T.S. 13 of 2012 is, inter alia, as follows,
(a) The father of the respondents Late Sushil Kumar Chowdhury and Sikha Sarkar the appellant jointly obtained a lease for 99 years, of 20.333 cottahs of land on 24th January, 1985 in plot no. 4 in the Economy Hotel Sector at Digha from the Digha Development Scheme, now known as Digha Sankarpur Development Scheme (DPS) for a consideration of Rs. 41,866/- and an annual rent of Rs. 1/-. The said lease was to enable the said Sushil Kumar Chowdhury and Sikha Sarkar to construct an economy hotel.
(b) The said Sushil Kumar Chowdhury and Sikha Sarkar allegedly jointly constructed the said hotel.
(c) The said Sushil Kumar Chowdhury died intestate on 17th July, 1992 leaving behind the respondents/ plaintiffs as his legal heirs. The said respondents/plaintiffs/legal heirs being residents of Kharda District- 24 Parganas, 4 entrusted Sikha Sarkar alone to run and manage the affairs of the hotel, and pay their share of profits after maintaining accounts, at the end of each English calendar year.
(d) Sikha Sarkar allegedly taking advantage of the absence of the plaintiffs, constructed a second floor at the hotel without knowledge or consent of the plaintiffs, or without obtaining proper sanction from the DDS.
(e) The said Sikha Sarkar allegedly misappropriated the share of profits of the plaintiffs and did not render accounts of income and expenditure of the said hotel to the plaintiffs/respondents.
(f) On 13th January, 1997 the legal heirs executed a power of attorney in favour of one Sankar Sarkar to obtain their father, Sushil's share of the Southern portion of the property and construct another hotel there at.
(g) The said legal heirs/plaintiffs/respondents prayed for accounts for six years preceding the suit and have also prayed for partition of the suit property. Partition was sought of the half share of the suit property of their father from that of Sikha's share.
4. The defendant/appellant herein filed the written statement and denied all the allegations in the plaint. In the three suits filed by Sikha Sarkar 5 against the respondents/plaintiffs/legal heirs of Sushil Kumar Chowdhury, she contended as follows.
(a) The said Sushil Kumar Chowdhury was only a joint applicant for the purpose of application of lease before the Digha Development Authority (DDS).
(b) The premium/salami of Rs. 41,866/- for the lease was, however, paid in equal share by Sushil Kumar Chowdhury and Sikha Sarkar to the DDS.
(c) Sikha Sarkar has been paying annual rent to DDS in her name since 1986.
(d) The hotel and the property, namely, Hotel Suman, was constructed entirely by her from her own funds, sometime in 1985.
(e) The construction plan for the hotel was prepared and the entire expenses for obtaining the estimate and engagement of workers and purchase of construction material was done exclusively by her from her own funds.
(f) Sanction for the plan for construction of the hotel was applied jointly by herself and Sushil Kumar Chowdhury and sanctioned 1988 as they were joint lessees.
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(g) Sikha Sarkar obtained a Sarai licence for running the hotel in her name, albeit since the year 1996.
(h) The telephone and electricity bills of the said hotel were and are in her name.
(i) The municipal/panchayat tax including the trade license and other statutory compliances were paid and/or obtained exclusively in the name of Sikha Sarkar.
(j) The aforesaid construction and obtaining of documents and licenses above in the sole name of Sikha Sarkar was done with the knowledge, consent and concurrence of Sushil Kumar Chowdhury.
(k) Sushil Kumar Chowdhury had never participated nor was at all connected with establishment and running of the hotel. He hardly ever visited the said hotel Suman except on two occasions since 1986.
(l) There was a mutual partition between Sushil Kumar Chowdhury and Sikha Sarkar of the leasehold land and suit property. The hotel was constructed exclusively on the portion of Sikha Sarkar on the northern portion of the property, which fell into the share of Sikha Sarkar. Sushil was to get the southern portion which is lying 7 vacant but was in the exclusive possession of Sikha Sarkar.
(m) Sushil Kumar Chowdhury later agreed on 08.10.1991 to surrender and/or sell his share of the southern portion of the leasehold property in favor of Sikha Sarkar on payment of Rs. 1 lakh.
(n) Sikha Sarkar has paid a sum of Rs. 10,000/- on 08.10.1991 against a written money receipt in furtherance of a deed of declaration and settlement dated 08.10.1991 by Sushil Kumar Chowdhury in the presence of witnesses.
(o) A request for sanction of the sub- division/partition Clause 2(d) of the lease deed dated 24th January, 1985 was made for and received by the DDS.
(p) A power of attorney dated 13.01.1997 executed by the legal heirs of Sushil Chowdhury in favour of one Sankar Sarkar would establish, partition and sub-division of the property and sub- division of suit property between Sushil and herself. The power of attorney to extent that it claims the entire property and hotel is illegal.
(q) Sikha Sarkar was and is still ready and willing to pay a balance sum of Rs. 90,000/- to Sushil Kumar Chowdhury and/or his legal heirs together with interest, if necessary. 8
5. Based on the pleadings the Court below framed the following issues:
(a) Whether the suits are maintainable in its present form and prayer?
(b) Whether the plaintiff/plaintiffs has/have cause of action to institute the respective suits?
(c) Whether the suits are barred by the principles of estoppel, waiver and acquiescence?
(d) Whether the suits are barred by defect of parties?
(e) Whether the parties have right, title and interest in the suit property?
(f) Whether the suit property was partitioned between Sushil Kumar Chowdhury and Sikha Sarkar?
(g) Whether Sushil Kumar Chowdhury executed any agreement for sale or surrender in respect of the suit property in favour of Sikha Sarkar?
(h) Whether the plaintiff/plaintiffs is/are entitled to get the decree as prayed for?
(i) To what other relief, if any, is/are the plaintiff/plaintiffs (parties) entitled to?
6. On behalf of the legal heirs of Sushil Kumar Chowdhury, Amitava Chowdhury (PW1), the 9 plaintiff no. 1 in T.S. 13 of 2012 deposed evidence. PW/2 was Devendranath Dolui who was a Upper Division Clerk attached to the DDS. PW/3, Kalipada Shome was an employee of the neighboring hotel, "Samudra Villa" at Digha.
7. The defendant Sikha Sarkar deposed herself as DW/1. Madhab Sen, owner of an adjacent hotel called "Holiday Home", next door to the Hotel Suman was DW2. He was also a witness who signed on the money receipt and a deed of mutual partition of the suit property dated 8 th October, 1991. The deed of declaration was, however, not exhibited in the Court below. It was referred to in course of proceedings at the time of admission of the instant appeal before a Division Bench of this Court on 7th March, 2000.
8. DW 3 was one Bijay Maisad who was an employee of the Hotel Suman. He stated that Sikha Sarkar constructed the entire hotel and was in exclusive possession of the entire lease hold property including the vacant southern portion of the property. He assisted Sikha in the construction of the hotel. He stated that Sushil and his legal heirs are not in possession of the suit property.
9. There is no effective cross examination by the plaintiffs/ respondents, of any of the witnesses produced on behalf of the appellant. 10 Findings of the Court Below:
10. The Court below found that it had jurisdiction to entertain all four suits and could be maintained by all the plaintiffs. The Court also found that the suit was not barred by non-joinder of parties. The Court also found that the partition of the suit property could not be affected as claimed by the legal heirs as there was no proper registered document in this regard.
11. In respect of the claim of Sikha Sarkar that she alone constructed the entire hotel by 1986 and was running the same to the exclusion of Sushil Kumar Chowdhury, the Court below did not find favour with Sikha Sarkar. The Court below found that there could not have been any construction on the land, in 1986 as the plan for construction of the hotel was sanctioned by the DDS in 1988.
12. The Court below found contradiction in the stand of Sikha Sarkar, inasmuch, as she had pleaded in T.S. 13 of 2012 and 15 of 2012 that Sushil Kumar Chowdhury agreed to surrender his share to her and yet in T.S. 14 of 2012 and O.S. 16 of 2012 contended that Sushil Kumar Chowdhury agreed to sell his share to her. The prayer of specific performance was held not maintainable.
13. The Court below disbelieved the money receipt of Rs. 10,000/- was part payment by Sushil Kumar 11 Chowdhury towards any agreement of sale. There was no agreement according to the Court below that could be inferred from a money receipt alone.
14. The alleged power of attorney dated 13.01.1997 executed by the legal heirs of Sushil Kumar Chowdhury in favour of Sankar Sarkar was equally held not proved by Sikha Sarkar as the original was not produced.
15. The Court below thereafter proceeded to hold that Sikha Sarkar undertook unauthorized construction on the second floor on the hotel. Based entirely on a cash receipt of Rs. 1 issued by the DDS dated 2 nd May, 2013 in the name of "Smt. Sikha Sarkar and others", towards annual payment of lease rent the Court below came to the conclusion that lease rent for the entire plot was being paid in the joint names Sushil and Sikha.
16. The Court therefore found the rights of the legal heirs of Sushil in the suit property. The plaintiffs/respondents/legal heirs of Sushil Kumar Chowdhury were treated as joint lessees along with Sikha Sarkar. The partition of the entire suit property including the hotel was, therefore, allowed between the plaintiff no. 1 to 6 in T.S.13 of 2012 and the said Sikha Sarkar.
17. The Court below also held that Sikha Sarkar was liable to render accounts for the business of 12 the hotel Suman to the legal heirs of late Sushil Kumar Chowdhury.
Analysis of this Court:
18. This Court has carefully considered the oral evidence adduced by the parties and the documentary evidence brought on record through their respective witnesses.
19. This Court finds that the Court below has misdirected itself in analyzing the evidence and has not therefore correctly applied the decisions of the Supreme and other court referred by it. The court below has ignored the vital evidence that has come on record.
20. There is ample evidence on record to suggest that the hotel was constructed and was in operation since 1986. It was for the DDS to have taken steps against Sikha for any construction or commencing business without sanction. No evidence has been produced by the parties that the DDS has taken any such action.
21. In the absence of the same the Court below could not have ignored the evidence on record and come to any finding that there was no construction before 1988.
22. This Court finds that the evidence of Amitava Chowdhury could not have been given any credence 13 whatsoever by the Court below. The said evidence is contradictory and self-defeating for the following reasons:-
(a) While PW/1 has stated that his father had obtained a Serai licence in his favour until 1986, he could not produce any document to that effect. On the contrary, in cross-examination, he has admitted that it was not possible for him to say that there was a ferrule connection or a Saraya licence obtained by his father.
(b) PW 1 has stated in examination in chief that his father had contributed to the construction of the hotel withdrawing the same from his post office at Digha. He could not produce any documents to that effect. In his examination he also stated that his father paid a sum of Rs. 2.25 lakhs to Sikha Sarkar for construction of the hotel.
(c) In cross-examination, however, he could not even recollect the quantum of money allegedly paid by his father to Sikha Sarkar. He has also stated in cross-examination that he could not recollect the source of money from where his father had paid Sikha.
(d) He did not have any documents as regards income tax returns of his father. He also could not produce any document to show that his father ever demanded or received any share of 14 profits of the hotel from Sikha Sarkar during his life time.
(e) PW/1 chose to refer to the lease deed dated 24 th January, 1985 as a partnership deed in his cross-examination whereas no such partnership deed in fact exists.
23. The case of the plaintiffs/legal heirs of late Sushil Kumar Chowdhury for accounts ought to have been thrown out on the basis of the aforesaid contradictory evidence of PW/1. No decree for accounts of the hotel could have been given to the plaintiffs in T.S. 13 of 2012.
24. PW/2 is an Upper Division Clerk who has stated that the share of Sushil Kumar Chowdhury and the share of Sikha Sarkar was divided equally by Digha Development Scheme. He also stated that the request of partition and sub-division, in writing of Sikha and Sushil was received and acknowledged by the DDS by a separate letter in writing. The said evidence would lend credence to the claim of parties that there was a partition/division, albeit private, of the suit property between herself and Sushil Kumar Chowdhury.
25. Admittedly, the evidence on record clearly establishes that the hotel in question is constructed on the northern portion of the suit property, within the share of Sikha Sarkar. The southern portion of 15 the property, in favour of Sushil Kumar Chowdhury even as on date, remains vacant.
26. One must now notice the examination-in-chief and cross-examination and the documents brought on record by Sikha Sarkar DW/1.
(a) She obtained a Saraya licence in her name in the year 1996.
(b) The telephone and electricity bills for the hotel standing in her name.
(c) She paid annual rent until the year 2013 under the lease agreement in her own name.
(d) The telephone and electricity bills for the hotel were in the name of Sikha Sarkar.
(e) The estimate for construction of the hotel was obtained from an architect by Sikha Sarkar in 1985 and purchased materials for construction in 1986. The hotel was constructed in 1986-86.
(f) She has entered into a lease agreement with Allahabad bank on 20th February, 1992 for leasing the hotel to their employees.
(g) She entered into further lease agreement on 22 nd September, 1998 with M/s Indian Airlines to lease its hotel for their employees.
(h) She has also brought on record a letter addressed to the Digha Development Authority dated 5th February, 1986 for division of the suit property between herself and Sushil Kumar 16 Chowdhury that is duly received by the DDS. The DDS has acknowledge receipt of the same by a separate letter in writing.
27. The above evidence demonstrates that Sikha Sarkar is the one who paid the periodical rent, not Sushil. The status of Sushil Chowdhury at best can be termed as a one-time creditor who contributed 50 percent of the one-time payment made towards the lease consideration. He, however, was never a lessee. This court however cannot be unmindful of the fact that there is a mutual partition between Sikha and Sushil, which to a large extent vindicates the status of Sushil as a co-lessee in spite of non-payment of the annual rent by him.
28. The aforesaid evidence also clearly proves that Sikha Sarkar had constructed the Hotel entirely on her own. She had managed the Hotel from 1986 until 2013 and does so even today, exclusively on her own. Sushil Kumar Chowdhury was never ever involved in either construction of the Hotel or its running financially or otherwise. He, for all intents and purposes, in furtherance of the private partition of the suit property, allowed Sikha Sarkar not only to construct the Hotel but also to run the same, bear expenses and liabilities for the same and exclusively enjoy its profits, without any demand or claim whatsoever.
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29. The legal heirs of Sushil having failed to establish any co-lesseeship between Sushil and Sikha, their suit for partition should have been dismissed given the dicta of the Supreme Court in H. Vasanthi v. A. Santha, 2023 SCC OnLine SC 998.
30. However, since there is a mutual partition arrived at between Sikha and Sushil, there is an explicit acceptance of the fact by Sikha that Sushil indeed used to have an interest in the suit property. In H. Vasanthi (supra), the court held:
14. The argument of learned Counsel for the plaintiff lays substantial emphasis on the statutory recognition of status as a coparcener to an unmarried daughter by Section 29A of the Hindu Succession Act and that the plaintiff is a non-
executant and, therefore, the plaintiff's share in the coparcenary is available for partition. Briefly stated, the applicability of Section 29A is not the deciding factor but the deciding factor in the case on hand is whether the suit property is available for partition. The crucial circumstance is whether the plaint schedule has the status or standing of a coparcenary property and is available for partition. The High Court, having examined each one of the relevant circumstances, found that the property is not available partition as of the date of coming into force of Section 29A of the State Amendment and dismissed the appeal. We have perused the Judgment and concur with the findings.
16. Exhibit A3 is a partial partition deed containing three schedules. Schedule-I covers the entire property, i.e., the total extent covered by premises bearing No. 68 corresponding to new No. 24, G.N. Chetty Road, T. Nagar, Madras, has five grounds and 1185 square feet. The partial partition allocated the property in Schedule-A to Defendants 1 and 2 and Schedule B to the parties of the second part, i.e., the plaintiff herein. The plaintiff accepted the property given in the 'B' Schedule. In this aspect, the plaintiff has admitted that the present suit schedule property belongs to the first and second defendants and has taken separate possession of the 'B' Schedule in Exhibit-A3 partial partition. Plaintiff does not take steps to assail 18 Exhibit-A3 in the manner known to law but proceeds to assume contrary to a clear understanding and claims partition. We are conscious that the factum of division is decided by the cumulative effect of all attending circumstances proved by the parties. Either the previous partition or separate ownership of any property is accepted on the evidence placed on record by the parties. In the case on hand, the plaintiff is legally obliged to discharge the burden that the plaint schedule is not only a coparcenary but continued to be so even as of 25.03.1989 and that the plaintiff is entitled to enforce the claim for partition. Let us examine whether the plaintiff discharged the burden on the above touchstone...."
31. Therefore, what is required to be examined is as to whether such mutual partition sans registration is valid or not. The need for registration of a partition deed may be discerned from Section 17 of the THE REGISTRATION ACT, 1908 Sec.17 is set out hereunder:-
17. Documents of which registration is compulsory.--(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) ***********
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(2) Nothing in clauses (b) and (c) of sub- section (1) applies to--
(v) [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred 19 rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
32. Therefore the question that falls for consideration is whether the mutual partition between Sushil and Sikha has declared, limited, or extinguished any right in the suit property given the terms of Section 17(1)/(b). If the Mutual partition between the two created a right to obtain a further document for declaring and limiting any interest in immovable property, then the same would not require registration given the terms of Section 17(2)/(v) (supra).
33. In K. Arumuga Velaiah v. P.R. Ramasamy, reported in (2022) 3 SCC 757 on the need for registering a partition deed, the Supreme Court has held as follows:-
"30. Further, reliance was placed in Ram Lal case [Lachhman Dass v. Ram Lal, (1989) 3 SCC 99] on a decision of the Division Bench of the Madras High Court in Ramaswamy Ayyar v. Thiru Athi Naik [Ramaswamy Ayyar v. Thiru Athi Naik, 1903 SCC OnLine Mad 87 : ILR (1904) 27 Mad 43] , wherein it was observed that it is necessary to read a document in order to ascertain, not what the document intends to convey really but what it purports to convey. In other words, it is necessary to examine not so much what it intends to do, but what it purports to do. It was further observed in para 14 as under : (Ram Lal case [Lachhman Dass v. Ram Lal, (1989) 3 SCC 99] , SCC p. 106)
31. In Ram Lal case [Lachhman Dass v. Ram Lal, (1989) 3 SCC 99] , reliance was also placed on Ratan Lal Sharma v. Purshottam Harit [Ratan Lal Sharma v. Purshottam Harit, (1974) 1 SCC 671] to hold that the arbitration award in the said case 20 did not just seek to assign a share of the respondent to the appellant therein, but made an exclusive allotment of the partnership assets including the factory and liabilities to the appellant therein. Therefore, the award in express words purported to create rights in immovable property worth a sum above Rs 100 in favour of the appellant therein. It was accordingly held that it would mandatorily require registration under Section 17 of the Act.
45. Having regard to the aforesaid provisions of law it can be safely concluded that the said award was a mere arrangement to divide the properties in future by metes and bounds as distinguished from an actual deed of partition under which there is not only a severance of status but also division of joint family properties by metes and bounds in specific properties. Hence it was exempted from registration under Section 17(2)(v) of the Act. A document of partition which provides for effectuating a division of properties in future would be exempt from registration under Section 17(2)(v). The test in such a case is whether the document itself creates an interest in a specific immovable property or merely creates a right to obtain another document of title. If a document does not by itself create a right or interest in immovable property, but merely creates a right to obtain another document, which will, when executed create a right in the person claiming relief, the former document does not require registration and is accordingly admissible in evidence vide Rajangam Ayyar v. Rajangam Ayyar [Rajangam Ayyar v. Rajangam Ayyar, 1922 SCC OnLine PC 52 : AIR 1922 PC 266] ."
34. It follows from the above that when a partition allots specific properties to a person then it must be compulsorily registered. However, when it creates a mere right to obtain interest in immovable property in the future, such document need not be registered.
35. Notwithstanding non-registration, the deed assumes significance from a different point of view that is, it records the intention of Sushil and Sikha. 21
36. Such intention can be drawn by the court given the Para no. 25 of K Arumuga Velaiah case (Supra):-
"25. In Siromani v. Hemkumar [Siromani v. Hemku mar, (1968) 3 SCR 639 : AIR 1968 SC 1299] , one of the questions raised was whether the validity of a partition deed could be challenged as being inadmissible in evidence on the ground that it had not been registered as mandated under Section 17(1)(b) of the Act. In that case it was held that under the recitals of Ext. D-4 considered therein, there was allotment of specific properties to individual coparceners and the document therefore fell within the mischief of Section 17(1)(b) of the Act as it required registration. Hence, the said document was not admissible in evidence to prove the title of the coparceners to any particular property or to prove that any particular property had ceased to be joint property. However, document Ext. D-4 considered therein was held to be admissible to prove an intention on the part of the coparceners to become divided in status; in other words, to prove that the parties ceased to be joint from the date of the instrument vide Nani Bai v. Gita Bai Kom Rama Gunge [Nani Bai v. Gita Bai Kom Rama Gunge, 1959 SCR 479 : AIR 1958 SC 706] . The said judgment is not applicable to the facts of this case.
In H. Vasanthi v. A. Santha, 2023 SCC OnLine SC 998, it was held as follows:-
15. We are alive to the principle that there is no prohibition to effect a partition otherwise than through an instrument in writing by duly complying with the requirement of law. In other words, the division may also be effected under a settlement or oral understanding. The circumstances and manner of recognising Defendants 1 and 2 as exclusive owners are not disclosed by the plaintiff or Defendants 1 and 2."
37. Therefore, this court can definitely come to a clear finding of the intention of Sushil and Sikha to an amicable and a mutual partition of the suit property. Non-registration of the agreement dated 8th October, 1991 therefore cannot stand in the way for decree for partition. Promissory estoppel would also operate against Sikha in this regard. 22
38. This Court notes from Clause 2(d) of the lease deed that sub-division of the leasehold land, is permissible subject to the permission of the DDS. An application to this effect has been made to Digha Development Authority, receipt whereof is confirmed by PW-2.
39. In so far Sushil's intension to sell his share in the property to Sikha could be inferred from the following evidence that has come on record.
(a) The letter of partition dated 5 th February 1986 addressed to the Administrator jointly by Sikha and Sushil and receipt of the same by the DDS on 16th April 1986.
(b) The Deed of Declaration and settlement dated 8th October 1991 at Annexure - H Page 551 of Part-II of the Paper Book referred to by the Division Bench of this Court.
(c) Sikha constructed the hotel only in her portion of the property that is the northern part of the suit land.
(d) The portions of Sushil's part i.e. southern side of the property is lying vacant and in the exclusive possession of Sikha.
(e) The legal heirs of Sushil have themselves claimed partition of the property and have demanded Sushil's share.
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(f) The power of attorney dated 13.01.1997 has been admitted by PW 1 in his cross examination. The Court below therefore erred in disbelieving or accepting the same.
(g) By said POA dated 13.01.1997, PW 1 admitted having authorized Sankar Sarkar to take possession and effect construction of new hotel in the half share of their father in the southern part of the property.
(h) The demarcation of the suit land may be pending formal decision and acceptance by DDS.
40. The money receipt and the evidence of DW-2 Madhav Sen and DW 3 Bijay Maisad assumes substantial importance in the facts of the case. The payment of Rs.10,000/- and the intention of Sushil Kumar Chowdhury to surrender his right, title and interest in the suit premises against payment of Rs.1,00,000/- would definitely support the stand of Sikha Sarkar. Sushil Kumar Chowdhury had clearly intended to surrender/sell his share/portion/right in the property (Southern half of the property which is lying vacant till date) to Sikha Sarkar.
41. The Court below has not even discussed and has completely ignored the evidence of DW2 Madhab Sen and DW 3 Bijay Maisad. Madhab Sen has 24 stated that he was present and signed as a witness to the money receipt of Rs.10,000/- paid by Sikha to Sushil on 08.10.1991. He has identified the signatures of Sushil and the other witnesses and that of Sikha on the said receipt.
42. Indeed, it is unusual that there are witnesses on a money receipt. However, if this fact is read together coupled with the deed of declaration and settlement dated 08.10.1991 (placed before a Division Bench on 7th March 2000), the case of Sikha Sarkar that there was an agreement to sell and/or surrender the southern portion of the suit property by Sushil to Sikha is clearly established. The said fact is further supported by the power of attorney dated 13th January 1997 admitted by PW1 Amitabha Chowdhury in cross examination.
43. DW 3 Bijay Maisad, an employee of the said hotel suman, has said that the hotel is constructed on the Northern part of the suit plot and the vacant southern part is in the exclusive possession of Sikha Sarkar. He also said that the Chowdhury family was not ever in possession of the property.
44. This Court therefore orders that the agreement dated 08.10.1991 bearing the signatures of Sushil Chowdhury, Madhab Sen, Sikha Sarkar and the power of attorney dated 13 th January, 1997 referred by Sikha Sarkar and admitted by Amitabha 25 Chowdhury should have been marked as exhibits by the court below. The said two documents are marked as exhibits AA1 and AA2 respectively. The Application of the Plaintiffs under Order XLI Rule 27:
45. It is at this juncture that this Court is inclined to deal with the application under Order XLI Rule 27 of the Code of Civil Procedure filed by the appellant Sikha Sarkar being CAN 5 of 2023 to bring on records certain documents in the appeal that were hitherto not produced in the trial Court.
46. The said documents are as follows:-
(a) a letter being Post Card dated 20 th April, 1987 addressed by Sushil Kumar Chowdhury to Suman, son of Sikha Sarkar.
(b) Another handwritten letter dated 21 st July, 1985 addressed to Subrata Sarkar, Sikha Sarkar's husband by Sushil Kumar Chowdhury.
(c) Another letter dated 7 th February, 1992 written in the Bengali vernacular allegedly by Sushil Kumar Chowdhury.
(d) A deed of declaration and settlement dated 8 th October, 1991 between Sushil Kumar Chowdhury and Sikha Sarkar.
(e) Although not annexed to the application is another letter in original dated 7 th February, 1992 stated to have been written by Sushil Kumar 26 Chowdhury in the Bengali vernacular addressed to Sikha Sarkar and her husband Subrata Sarkar affectionately signed as Sushil Da. The said document has been identified by Sikha Sarkar who is personally present in Court today as to having been received by post and through an employee of Hotel Samudra Villa, who was acting as agent of Sushil Kumar Chowdhury.
47. This Court is only inclined to take on record the letters dated 7th February, 1992, 21st May, 1985, Post Card dated 23rd March, 1992, inland letter in two parts dated 20th March, 1992 and another writing of Sushil Kumar Chowdhury. The reasons for taking the said documents and marking them as exhibits, under Order XLI, Rule 27 are, inter alia, as follows,
(a) There is some evidence already on record in the Court below and in the oral evidence of Sikha Sarkar, the contents of the aforesaid documents. Sushil appears to want Sikha to run hotel on her own and had no interest in the business or the suit property.
(b) The money receipt being Exhibit-A in the Court below constituted an earnest money and/or part payment of the said agreement between Sikha Sarkar and Sushil Kumar Chowdhury. It supports the oral evidence of Sikha Sarkar, 27 Sushil Kumar Chowdhury intended to, surrender and/or sell his portion of the suit property (southern portion) in favour of Sikha Sarkar against a consideration of Rs. 1 lakh.
(c) Despite specific notice of mentioning and listing of this appeal before this Court and notice of service of the application under Order XLI, Rule 27 to the respondents, they have chosen not to represent themselves before this Court. The respondents, therefore, had no objection to the aforesaid application under Order XLI, Rule 27.
(d) The nature and condition of the documents produced in Court lend credence to the statements in the application under Order XLI, Rule 27 that Sikha Sarkar may not have had access to these documents or could not produce the same despite due diligence at the time of trial of the four suits.
48. In the aforesaid circumstances, CAN 5 of 2023 shall stand allowed. Affidavit of service filed in Court today is taken on record.
49. The aforesaid documents shall be marked as Exhibits AA3, AA4, AA5, AA6, AA7 and AA8 respectively.
50. In the backdrop of the above evidence, the question of any business partnership between Sushil Kumar Chowdhury and Sikha Sarkar, or 28 contribution by Sushil in constructing or running the Hotel did not and could not have arisen. The legal heirs of Sushil Kumar Chowdhury being the plaintiffs were, therefore, not entitled to any right or claim any share in the Hotel business in the name and style as "Hotel Suman" run exclusively by Sikha Sarkar. In fact, the legal heirs of Sushil Kumar Chowdhury could not produce a shred of evidence to show that their father ever asked for any sum of money from Sikha Sarkar out of the Hotel business.
51. The question of any accounts or claim being made by the legal heirs of Sushil Kumar Chowdhury against Hotel Suman or the business of Sikha Sarkar at the said Hotel, therefore, does not and cannot arise. The Court below completely erred in this regard. The decree passed by the Court below, directing Sikha Sarkar to render account of the hotel Suman to the legal heirs of Sushil Kr Chowdhury shall, therefore, stand set aside.
52. Admittedly Sushil's share of the property is in continuous possession of Sikha since 1986. While the right of the legal heirs of Sushil in the southern portion of the property may be existing it would be contingent upon several factors.
53. The claim for specific performance of agreement dated 8th October 1991 and a decree for sale of the 29 balance portion of the property of Sushil in favour of Sikha Sarkar, is barred by limitation. The agreement between Sikha and Sushil was in 8 th October, 1991. Sikha has filed the O.S. 134 of 2001 (renumbered as 16 of 2012) more than six years after expiry of the period of limitation.
54. However, the law of limitation would not extinguish a right but only the remedy. Hence one need to answer as to whether Sikha Sarkar is entitled to a declaration of possession as regards the whole suit property inclusive of the southern portion of the suit property. (T.S. 15 of 2012) The Supreme Court in Ghanshyam v. Yogendra Rathi, reported in (2023) 7 SCC 361 has held as follows :-
"16. Legally an agreement to sell may not be regarded as a transaction of sale or a document transferring the proprietary rights in an immovable property but the prospective purchaser having performed his part of the contract and lawfully in possession acquires possessory title which is liable to be protected in view of Section 53A of the Transfer of Property Act, 1882. The said possessory rights of the prospective purchaser cannot be invaded by the transferer or any person claiming under him.
17. Notwithstanding the above as the plaintiff- respondent admittedly was settled with possessory title in part performance of the agreement to sell dated 10.04.2002 and that the defendant-appellant has lost his possession over it and had acquired the right of possession under a licence simpliciter, exhausted his right to continue in possession after the licence has been determined. Thus, the defendant appellant parted with the possession of the suit property by putting the plaintiff-respondent in possession of it under an agreement to sell. The plaintiff-respondent in this way came to acquire possessory title over the same. The defendantappellant, as such, ceased to be in possession of it as an owner rather occupied it as a licencee for a fixed period which stood determined by 30 valid notice, leaving the defendant-appellant with no subsisting right to remain in possession of the suit premises."
55. Section 53A of the Transfer of Property Act prescribes as follows :-
53A. Part performance.--Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.]
56. Section 53A permits equitable relief provided the agreement to sell is in writing. This is to ascertain the terms of the contract with certainty. Therefore even, if the agreement to sell cannot be enforced for the laws of Limitation, the terms of the contract, can be inferred by a Court with certainty. The terms of the agreement can be gathered from communication, conduct of the parties the money receipt and the other evidence on record. Sikha Sarkar is admittedly in possession of the immovable property. Sikha would be entitled to the benefit of the Section 53A.
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57. In Ranchhoddas Chhaganlal v. Devaji Supdu Dorik, reported in (1977) 3 SCC 584 at page 587 the Supreme Court held as follows :-
"10. The principal hurdle in the way of the respondent is that the respondent has never been ready and willing to perform the agreement, as alleged by the appellant. The respondent alleged that the consideration for purchase was Rs 12,000. The respondent has never been ready and willing to perform the agreement alleged by the appellant. The respondent relied on the doctrine of part- performance. One of the limbs of part performance is that the transferee has in the part performance of the contract taken possession of the property. The most important consideration here is the contract. The true principle of the operation of the acts of part performance seems to require that the act in question must be referred to some contract and must be referred to the alleged one; that they prove the existence of some contract, and are consistent with the contract alleged. The doctrine of part performance is a defence. It is a shield and not a sword. It is a right to protect his possession against any challenge to it by the transferor contrary to the terms of the contract. The appellant is right in the contention that there was never any performance in part by the respondent of the contract between the parties."
58. In D.S. Parvathamma v. A. Srinivasan, (2003) 4 SCC 705 , the following was held :-
"6. The essential features of the equitable doctrine of part-performance as statutorily modified and incorporated in Section 53-A abovesaid, to the extent relevant for the purposes of this case, are : (i) that the transferee has, in part-performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part- performance of the contract and has done some act in furtherance of the contract, (ii) that the transferee has performed or is willing to perform his part of the contract, and (iii) that the plea of part-performance is not available to be raised against a transferee for consideration who has no notice of the contract or of the part-performance thereof.
12. Strong reliance was placed by the learned Senior Counsel for the appellant on a recent decision of this Court in Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba Suryavanshi [(2002) 3 SCC 676] wherein this Court 32 has held that a person obtaining possession of the property in part-performance of an agreement of sale, can defend his possession in a suit for recovery of possession filed by the transferor or by the subsequent transferee of the property claiming under him, even if a suit for specific performance of the agreement of sale has become barred by limitation. (emphasis supplied) Clearly it was a case where the person-in-possession was so inducted in part-performance of the agreement of sale. Excepting that his suit had gone barred by limitation there was nothing else to deny the benefit of the plea to the person-in-possession. The Court proceeded on the reasoning that the law of limitation barred the remedy but did not bar the defence. The distinguishing features of that case are that : (i) it was admitted that the transferee had taken possession over the property in part- performance of the contract, (ii) that the transferee had not brought any suit for specific performance of the agreement to sell, and (iii) the transferee was always and still ready and willing to perform his part of the contract. These three significant factual features are missing in the case before us and therefore the appellant's effort to find support from the authority of Shrimant Shamrao Suryavanshi case [(2002) 3 SCC 676] must fail. Bar of limitation alone does not bar the plea of part-performance being raised if all other requisites of Section 53-A of the TP Act are available."
59. Therefore the fact that her suit for specific performance of contract is barred by limitation would not disentitle Sikha Sarkar from equitable relief under Section 53A.
60. This Court holds that there was a partition of the Suit property between Sushil and Sikha. The Southern portion of the property belongs to Sushil and the northern portion was that of Sikha. There shall be a decree to that effect. However the Southern portion of the suit portion being the share of the legal heirs of Sushil Kumar Chowdhury shall be subject to Section 53A of the Transfer of Property Act, 1882. 33
61. Hence there shall be a decree for declaration that Sikha Sarkar is in possession of the share of Sushil Chowdhury on the southern of the suit property.
62. The impugned judgment and decree dated 11 th August, 2014 is set aside.
63. The appeal is allowed to the extent and in the manner indicated hereinabove.
64. Let the LCRs and added exhibits be sent back to the Court below.
65. There shall be no order as to costs.
66. Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.
(Rajasekhar Mantha, J.) (Ajay Kumar Gupta, J.)