Calcutta High Court (Appellete Side)
Joy Chowdhury vs Smt. Kumkum Ray & Ors on 6 May, 2015
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Jyotirmay Bhattacharya
And
The Hon'ble Justice Debi Prosad Dey
F. A. No.128 of 2014
With
CAN 11336 of 2014
Joy Chowdhury
Vs.
Smt. Kumkum Ray & Ors.
For Appellant : Mr. Supratick Syamal,
Mr. Gourab Ghosh,
Mr. Dilip Kumar Shyamal.
For Respondents : Mr. Srijib Chakraborty.
Heard on : 06-05-2015.
Judgment on : 06-05-2015.
This first appeal arises out of a preliminary decree passed in a partition suit filed by the plaintiff respondents. The learned trial Judge held that each of the plaintiffs has one-fourth share in the suit property. Though the learned trial Judge held that each of the three plaintiffs acquired one-fourth share in the suit property by way of inheritance, but, while passing the preliminary decree, the learned trial Judge erroneously declared that the plaintiffs do get a decree for partition in respect of the half share in the suit property. Parties were directed to partition the suit property by metes and bounds amicably as per their shares declared in the said preliminary decree within 90 days from the date of the decree, failing which, liberty was given to the parties to apply for final decree.
The legality and/or the propriety of the said judgment and decree passed by the learned trial Judge has been challenged by the defendant/appellant in this appeal.
After filing this appeal, the defendant appellant has filed an application for stay praying for stay of all further proceedings of the suit being Title Suit No.97 of 2011 pending in the Court of the learned Civil Judge, Junior Divison, First Court at Bolpur. While considering the said application for stay, we find that the appeal is of such nature which can be decided immediately by dispensing with the requirement of filing paper book in this appeal and on the basis of the materials before us. All the parties are represented by their learned advocates before us. They also suggested for disposal of the appeal on merit. Accordingly, while considering this application for stay filed by the defendant appellant, we have considered the merit of the appeal. Parties were heard on the merit of this appeal.
Let us now discuss the short facts of this case leading to the filing of this appeal.
Admittedly, Monoranjan Chowdhury was the owner of sixteen and half shatak of land lying at Mouza Bolpur J.L. No.99 L.R. Khatian No.6656 and 8431 L.R. Dag No.2161 corresponding to R.S. Dag No.353/9442 and 353. It is also an admitted fact that Lila Chowdhury was the owner of sixteen and half shatak of land at Mouza Bolpur in J.L. No.99 L.R. Khatian No.6656 and 8431 L.R. Dag No.2161 corresponding to R.S. Dag No.353/9442 and 353.
Monoranjan Chowdhury died in the year 1974 leaving behind him surviving his widow Leela Chowdhury, one son, namely, Joy Chowdhury and three daughters, namely, Kumkum, Jayshree and Sukla. Thus, the said heirs and/or heiress of Monoranjan Chowdhury inherited one-fifth share each in the property left by Monoranjan Chowdhury.
Subsequently, Leela Chowdhury died in the year 2003. Thus, the property of Leela Chowdhury was inherited by her son Joy and three daughters, Kumkum, Jayshree and Sukla in equal shares. Thus, Joy Chowdhury inherited one-fourth share in the suit property, Kumkum inherited one-fourth share, Jayshree inherited one-fourth share and Sukla inherited one-fourth share.
Initially, the suit for partition was filed by two of the sisters, namely, Kumkum and Jayshree claiming their half share in the suit property. Joy Chowdhury was impleaded as defendant no.1 in the said suit. Sukla was impleaded as defendant no.2 in the said suit. Subsequently, Sukla was transposed to the category of the plaintiff and she was identified as plaintiff no.3 in the said suit. All the three sisters, in effect, claimed partition in the said suit against their brother, Joy Chowdhury.
The defendant Joy Chowdhury contested the said suit by filing written statement. He claimed that her mother Leela Chowdhury, during her lifetime, executed a will on 14th June, 1988 bequeathing her properties in his favour. He further claimed that his mother, namely, Leela Chowdhury and his two sisters, namely, Jayshree and Sukla executed a registered Deed of Gift on 22nd March, 1991 bequeathing the interest which they inherited from their predecessor, namely, Monoranjan Chowdhury on his death, in his favour. He also contended that after Leela Chowdhury died, an application for grant of probate to the will left by Leela Chowdhury was made by him and the said probate proceeding which was registered as Misc. (Probate) Case No.123 of 2010, subsequently renumbered as O.S. No.4 of 2011, is now pending for consideration before the Additional District Judge, Birbhum at Suri.
Apart from the probate proceeding, it has also been disclosed before us that a suit being Title Suit No.97 of 2011 filed by the three sisters, namely, Kumkum, Jayshree and Sukla challenging the validity of the Deed of Gift dated 22nd March, 1991 allegedly executed by them in favour of their brother, Joy Chowdhury is pending for consideration before the learned Civil Judge, Junior Division, First Court at Bolpur.
Though the pendency of the probate proceeding was disclosed before the learned trial Judge in connection with the partition suit, the learned trial Judge, instead of staying the proceedings of the Partition Suit, proceeded on considering the said partition suit and, in fact, passed a preliminary decree for partition in the suit before disposal of the probate proceeding. We have also mentioned hereinabove that apart from the probate proceeding, the three sisters filed another suit by challenging the legality and/or validity of the Deed of Gift allegedly executed by two of them in favour of their brother.
Since the extent of share of the parties depends upon the ultimate fate of the probate proceeding and the said title suit, we feel the learned trial Judge ought not to have passed any preliminary decree declaring the shares of the parties in the suit property. To be more precise, we like to mention here that in the event, will is probated and the son, namely, Joy Chowdhury inherits his mother's property, by way of testamentary succession, then the extent of his interest in the suit property will be enlarged. Simultaneously, if the suit being Title Suit No.97 of 2011 is ultimately dismissed and it is found that his two sisters, who bequeathed their interest in the suit property in favour of their brother, namely, Joy Chowdhury, then again, the interest of the brother, namely, Joy Chowdhury will be further enlarged. On the contrary, if the probate proceeding fails, then the brother, Joy Chowdhury, cannot inherit the share of his mother, Leela, by way of testamentary succession. Identically, if the Title Suit No.97 of 2011 is allowed and decree is passed in favour of the three sisters declaring the Deed of Gift is invalid, then Joy Chowdhury cannot acquire any interest of the donors by virtue of the said Deed of Gift. In such circumstances, the share of Joy Chowdhury will be reduced and/or altered.
Considering the facts and circumstances as mentioned above, we are of the view that the learned trial Judge should not have passed the preliminary decree in the said suit till the disposal of the said proceedings. As such, we set aside the preliminary decree passed by the learned trial Judge and send the suit back to the learned Trial Judge on remand for fresh trial of the said suit.
We, however, feel that for avoiding conflict of decision and for convenient trial of the said partition suit, all the aforesaid three suits being Title Suit No.54 of 2008, another declaratory suit being Title Suit No.97 of 2011 and the probate proceeding being Misc. (Probate) Case No.123 of 2010, renumbered as OS 4 of 2011 should be tried simultaneously by a common court. However, in the present set up, trial of the aforesaid three suits cannot be conducted by one particular court as the aforesaid two suits and the suit arising out of the probate proceeding are pending for consideration before three different courts. Under such circumstances, we feel that justice will be subserved if the partition suit being Title Suit No.54 of 2008, which is now pending for consideration before the learned Civil Judge, Senior Division, First Court at Bolpur and the declaratory suit being Title Suit No.97 of 2011 pending before the Civil Judge, Junior Division, First Court at Bolpur are transferred to the Court of the learned Additional District Judge at Suri, where the probate suit being OS No.4 of 2011 is now pending for consideration so that all these three suits are tried by the said court simultaneously.
Accordingly, we dispose of this appeal by setting aside the impugned preliminary decree passed by the learned trial Judge in Title Suit No.54 of 2008 and send the suit back to the learned trial Judge on remand for fresh trial of the suit in the light of the observation made hereinabove and request the learned District Judge, Birbhum at Suri to transfer the said partition suit being Title Suit No.54 of 2008 and the declaratory suit being Title Suit No.97 of 2011 to the Court of learned Additional District Judge, Second Court at Suri so that all the aforesaid three suits can be tried simultaneously and be disposed of by a common court.
It is made clear that the learned transferee court, while considering the aforesaid two suits, will permit the parties thereto to lead further evidence in case they choose to give further evidence in the said suits. Needless to mention here if any of the parties give further evidence in the said suit, the adversary will get an opportunity for cross-examining the said witness.
The parties are directed to maintain status quo with regard to nature and character of the suit property and their possession therein till the disposal of the aforesaid three suits. The parties are also restrained from transferring the suit property without the leave of the learned trial Judge. After the aforesaid suits are transferred, the learned transferee court is requested to expedite disposal of all the three suits as far as possible.
The appeal is, thus, disposed of.
In view of the disposal of the appeal, no further order need be passed on the application filed by the appellant being CAN 11336 of 2014. The said application is deemed to be disposed of.
Let the Lower Court Records be sent down to the court below immediately.
Let this order be communicated to the Court below as well as the learned District Judge of Birbhum at Suri.
Urgent photostat certified copies of this judgment, if applied for, be supplied to the parties subject to compliance of all requisite formalities.
( Jyotirmay Bhattacharya, J. ) ( Debi Prosad Dey, J. ) Debajyoti.