Tripura High Court
Smt. Parul Das vs Smt. Amiya Prava Das on 23 July, 2018
Equivalent citations: AIR 2019 TRIPURA 1, (2018) 190 ALLINDCAS 588 (TRI)
Author: S. Talapatra
Bench: S. Talapatra
IN THE HIGH COURT OF TRIPURA
AGARTALA
RSA. No.37 of 2015
&
RSA. No.38 of 2015
In RSA. No.37 of 2015
1. Smt. Parul Das,
wife of late Rabindra Kumar Das
2. Shri Rinku Das,
son of late Rabindra Kumar Das
3. Miss Rituparna Das alias Rumi Das,
daughter of late Rabindra Kumar Das
-all are residents of Raja Rammohan Road
[office tilla], P.O. & P.S. Dharmanagar,
District- North Tripura, PIN-799250
............ Appellants
By Advocate:
Mr. A. Nandi
-Versus-
1. Smt. Amiya Prava Das,
wife of Shri Subal Chandra Das of Jail Road,
Dharmanagar, P.O. & P.S. Dharmanagar,
District- North Tripura, PIN-799250
2. Shri Pradip Das,
son of late Dhirendra Das, care of Namita
Sweets, Office Tilla, P.O. & P.S.
Dharmanagar, District- North Tripura, PIN-
799250
............ Respondents
By Advocate:
Mr. G.K. Nama
In RSA. No.38 of 2015
1. Smt. Parul Das,
wife of late Rabindra Kumar Das
2. Shri Rinku Das,
son of late Rabindra Kumar Das
3. Miss Rituparna Das,
daughter of late Rabindra Kumar Das
-all are residents of Raja Rammohan Road
[office tilla], P.O. & P.S. Dharmanagar,
District- North Tripura, PIN-799250
Page 2 of 13
............ Appellants
By Advocate:
Mr. A. Nandi
-Versus-
Smt. Amiya Prava Das,
wife of Shri Subal Chandra Das of Jail Road,
Dharmanagar, P.O. & P.S. Dharmanagar,
District- North Tripura, PIN-799250
............ Respondent
By Advocate:
Mr. G.K. Nama
Date of hearing & delivery of : 23.07.2018
Judgment & order
YES NO
Whether fit for reporting : √
HON'BLE MR. JUSTICE S. TALAPATRA
JUDGMENT & ORDER (ORAL)
Heard Mr. A. Nandi, learned counsel appearing for the appellants as well as Mr. G.K. Nama, learned counsel appearing for the respondent No.1. None appears for the remaining respondent despite due notice from this court.
[2] Both these appeals being RSA No.37 of 2015 [Smt. Parul Das vs. Smt. Amiya Prava Das & another] and RSA No.38 of 2015 [Smt. Parul Das vs. Smt. Amiya Prava Das] are combined for disposal by a common judgment inasmuch as the substantial questions of law as emerged from the challenge are common and these appeals arise from the suit being Title Suit No.02 of 2007 and the suit being Title Suit [counter claim] 17 of 2007 arising out of Title Suit No.02 of 2007. It is to be noted that both the suits being Title Suit No.02 of 2007 and the suit being Title Suit [counter claim] 17 of 2007, hereinafter referred to as the suit and the counter claim respectively, were tried together by Page 3 of 13 the trial court and decided by two separate judgments. Since the suit was decreed by the trial court [the court of the Civil Judge, Jr. Division, Dharmanagar, North Tripura] and the counter claim was dismissed, the present appellants filed one appeal under Section 96 of the CPC against both the judgments irregularly in the court of the Additional District Judge, North Tripura, Dharmanagar [later on, the District Judge, Dharmanagar, North Tripura] being Title Appeal No.06 of 2012. The judgment delivered in the said appeal is the subject matter of RSA No.37 of 2015 and RSA No.38 of 2015. By the judgment dated 10.08.2015, the said appeal being Title Appeal No.6 of 2013 was dismissed and it has been challenged in the appeal filed under Section 100 of the CPC being RSA No.37 of 2015 and RSA No.38 of 2015. The first appellate court has decided the said appeal against two judgments without taking any exception. Two separate appeals were required to be filed in law. This court however has to take note of that aspect. However, in this court, two appeals have been filed under Section 100 of the CPC from the judgment of the solitary appeal, in an astitute move to make good of irregularity that the appellants have committed, but without leave of this court. At the time of admission of both the appeals, a common substantial question of law was framed by the order dated 24.11.2015 which reads as under:
―Whether application of the provision of Section 73 of the Evidence Act by the trial court which has been affirmed by the appellate Court in the absence of any expert evidence was proper?‖ [3] The facts which are relevant for determining the appeal are introduced in brief at the outset.Page 4 of 13
One Pratima Bala Das, PW-3 in the suit and DW-3 in the counter claim purchased the suit land as described in the plaint by the sale deed No.1-6918 dated 09.12.1971. Pratima Bala Das sold the said land to Amiya Prava Das, the plaintiff of Title Suit No.2 of 2007 by the sale deed No.1-8 dated 01.01.2003. The plaintiff had been maintaining her possession by her tenant but after about 4 months from the date purchased, her tenant was dispossessed from the said land. To protect the possession, she instituted the suit for declaration of right, title and interest over the suit land and for recovery along with the consequential reliefs of perpetual injunction against the counter claimants [the defendants in the suit]. The defendants of the suit filed the counter claim for declaration of their right, title and interest over the suit land as described in the counter claim as well and for cancellation of the sale deed No.1-8 dated 01.01.2003, description of which has been given in the separate schedule of the counter claim and for confirmation of possession along with the perpetual injunction against the plaintiff. According to the counter claimants, the suit land was purchased by the husband of Pratima Bala Das from his own fund in Pratima Bala's name. In Para-9 of the counter claim it has been asserted that 'in the year 1981 Smt. Pratima Bala Das transferred the suit property in favour of her husband Rabindra Kumar Das by executing muktipatra vide deed No.1-2545 dated 11.05.1981.' Rabindra Kumar Das subsequently 'married' the counter claimant No.1, Parul Das and she gave birth 2[two] children, namely Rinku Das and Rituparna Das who were respectively counter claimants No.2 & 3. At one point of time, according to the counter claimants, Pratima Bala Das left the husband's premises and started living with her sister and later on, a deed was manufactured Page 5 of 13 being sale deed No.1-8 dated 01.01.2003 and on the basis of that, the suit has been filed to deprive the counter claimants from their legitimate right over their land. It is to be noted that in terms of the Hindu Succession Act, 1956, the counter claimant No.1 does not have any right of inheritance to the property left by Rabindra Kr. Das inasmuch as during subsistence of the marriage, any marriage by a Hindu male is bound to be illegal. However, since it is not in disputed by anyone that, the counter claimants No.2 & 3 are the daughters through Parul Das, they have their right over the property, if the property is decided by the law of inheritance. Having situated thus, in both the suit and counter claim, an issue was framed whether the sale deed dated 01.01.2003 is a forged one and is liable to be cancelled. Both the courts below have answered that issue in the negative holding that there is no material to make out a case for cancelling the said registered instrument whereby any right of the counter claimants is affected. The first appellate court while deciding the challenge against the judgment of the trial court dated 28.02.2013 has observed that from a comparison of the signature appearing in the sale deed dated 01.01.2003 and the signature appearing in the purported Muktipatra deed dated 1-2545 dated 11.05.1981, it clearly comes out that the signatures are by two different persons. It gave the reassurance to the first appellate court that the Muktipatra deed was not executed by Pratima Bala Das [PW-3 & DW-3 in the suit and in the counter claim]. This is the reason why the substantial question of law has been formulated likewise. For purpose of reference, let us have a visit to the provisions of Section 73 of the Indian Evidence Act, which reads as follows:
―73. Comparison of signature, writing or seal with others admitted or proved.--In order to ascertain whether a Page 6 of 13 signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also, with any necessary modifications, to finger-impressions.‖ [4] Mr. Nandi, learned counsel appearing for the appellants also, though not categorically, urged this court to formulate additional substantial question of law that since the property was purchased from the fund of Rabindra Kr. Das, the said property is a Benami property and Pratima Bala Das being the Benamdar does not have any competence to transfer the property to anyone else without the permission of the person by whom the property was purchased in her name. In this regard, Mr. Nandi, learned counsel has submitted that the release by itself constitute a valid transaction. In sequel, he has referred to a decision of this court in Ranganayakamma and another vs. K.S. Prakash (Dead) by LRs. and others, reported in (2008) 15 SCC 673 where the apex court had occasion to observe as follows:
―49. Our attention has also been drawn to essentials of `release' from the said treatise, which are as under:
‗(i) Full recitals of the origin of the claim, which form the most important part;
(ii) knowledge of the releaser about the claim, intended to be released;
(iii) words and expressions sufficiently clear to convey the intention of the releaser to discharge the right or the claim.'
50. A deed of `release' for a consideration is a transaction.
When, thus, a release is made for consideration, the particulars of consideration and other particulars which are required to be averred in the deed being essential elements thereof. Relinquishment of a property by a sister in favour of her brother for a consideration or absence of it, stands on a different footing. Section 25 of the Indian Contract Act must be read and construed having regard to the fact situation obtaining in the cases. In Smt. Manali Singhal and another v. Ravi Singhal [AIR 1999 Delhi 156], it was held:
Page 7 of 13
‗20. Learned counsel for the defendants has then argued that the impugned settlement is without any consideration. Hence the same is hit by S. 25 of the Contract Act. The contention of the learned counsel may be an ingenious one but can be brushed aside without any difficulty. Parties more often than not settle their disputes amongst themselves without the assistance of the Court in order to give quietus to their disputes once and for all. The underlying idea while doing so is to bring an era of peace and harmony into the family and to put an end to the discord, disharmony, acrimony and bickering. Thus the consideration in such type of settlements is love and affection, peace and harmony and satisfaction to flow therefrom.' ‖ [5] Another decision has been relied by Mr. Nandi, learned counsel in Suresh Chand Gupta and others vs. Man Mohan Gupta, reported in AIR 2004 Delhi 282, where Delhi High Court has held that 'when it is established that a person is a benamidar, the question of his holding any right, title and interest in the suit property as true owner does not arise and therefore, there need not be any consideration for his executing Release Deed in favour of the real owner. If the person executing the Release Deed himself holds some right, title or interest in the property, release of that interest would amount to conveyance which has to be for a consideration. This question of consideration does not arise for the release of the property in respect of which he was only benamidar because benamidar himself has no right, title and interest in the property'. In Suresh Chand Gupta (supra), the apex court having referred a decision in Kuppuswami Chettiar vs. S.P.A. Arumugam Chettiar and another, reported in AIR 1967 SC 1395 has observed that a person who holds right, title and interest in the property even while describing the document as the release deed, he does actually execute a deed of conveyance. A release deed can only feed title but cannot transfer title [A. Gajapathi Naidu vs. The Commissioner of Income-tax, Madras : AIR 1961 Madras 14]. Release must be in favour of the person who has a title to the estate already. The effect of the release is only to enlarge that right. Release does not vest title Page 8 of 13 where it did not exist [Senthathikalai Pandiya Chinnathambiar and others vs. Varaguna Rama Pandia Chinnathambiar and another :
AIR 1954 Madras 5].
[6] Mr. Nandi, learned counsel has further stated that the counter claimant No.1 as PW-1 in the counter claim has categorically stated that the suit property was purchased by Rabindra Kr. Das from his own fund. As such, the status of Pratima Bala Das being that of a Benamdar lacked competence to execute the sale deed dated 01.01.2003. The execution of that sale deed has affected the interest of the counter claimants. However, Mr. Nandi, learned counsel has not dilated what right over the suit property the counter claimant No.1 had.
However, that question technically becomes irrelevant for presence of the counter claimants No.2 & 3 as the defendants in the suit and the courter claimants in the counter claim. Mr. Nandi, learned counsel has further submitted that it was the duty of the court to refer the matter to the handwriting expert under Section 47 of the Indian Evidence Act for forensic comparison of the handwriting of Pratima Bala Das as a matter of prudence. Section 47 of the Indian Evidence Act provides that:
‗when the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact'. [7] According to Mr. Nandi, learned counsel appearing for the appellants, the trial court as well as the first appellate court have committed gross illegality by relying on the provisions of Section 73 of the Indian Evidence Act for purpose of comparison in the context of the case. Mr. Nandi, learned counsel has submitted Page 9 of 13 that though in the questioned sale deed, the signatures of Pratima Bala Das are appearing but in the cross-examination [as DW-3], she has categorically stated 'I cannot sign'. Mr. Nandi, learned counsel has contended that this statement is sufficient enough to disbelieve whatever statement she has made as regards the purchase of the land. She was not truthful before the trial court and as such, her statement should have been discarded. Mr. Nandi, learned counsel has contended that Pratima Bala Das when executed the questioned sale deed was living with the Vendee of the questioned sale deed. The Vendee is the younger sister of Pratima Bala Das and as such, it is probable that to deprive the defendants from the suit land, they taking the advantage of the death of Rabindra Kumar Das have executed the said sale deed for grabbing the property. Mr. Nandi, learned counsel has referred few decisions regarding the scope of interference into the factual finding in the second appeal. He has relied on Sir Chunilal V. Mehta and sons Ltd. vs. Century Spinning and Manufacturing Co. Ltd., reported in AIR 1962 SC 1314, where the apex court has occasion to observe that:
―......The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.‖ Page 10 of 13 [8] Mr. Nandi, learned counsel has referred the decision of the apex court in Kochukakkada Aboobacker (Dead) by LRs. and others vs. Attah Kasim and others, reported in (1996) 7 SCC 389, where the apex court has observed that even an improper construction of a document can form the substantial question of law. Finally, Mr. Nandi, learned counsel has relied on Hero Vinoth (Minor) vs. Seshammal, reported in (2006) 5 SCC 545, where the apex court has laid down the law having approved the principle of Sir Chunilal V. Mehta (supra) as under:
―20. The question of law raised will not be considered as a substantial question of law, if it stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. There mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal.
This Court in Reserve Bank of India v. Ramkrishna Govind Morey (1976) 1 SCC 803 held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference. [See: Kondiba Dogadu Kadam v. Savitribai Sopan Gujar and Others: (1999) 3 SCC 722].‖ [9] Thus, Mr. Nandi, learned counsel has submitted that both the courts below have utterly failed to appreciate the issue of Benami transaction. That apart, those courts have exercised the jurisdiction under Section 73 of the Indian Evidence Act imprudently.Page 11 of 13
[10] In reply to the submissions made by Mr. Nandi, learned counsel appearing for the appellants, Mr. G.K. Nama, learned counsel appearing for the respondent No.1 has submitted with adequate emphasis that the specific case of the plaintiff in the suit is that the fund provided by their father, Pratima Bala Das had purchased that property. Pratima Bala Das has appeared as the witness and categorically stated that she had purchased the suit property from the fund provided by her father and in this regard, there was no cross-examination by the defendants-counter claimants. Further, the counter claimant No.1 [DW-1] in her cross- examination has categorically made 2[two] important statements having relevance in the present context viz. (i) that her husband, meaning Rabindra Kr. Das did never see the so called Muktipatra and (ii) she was not there during the time of purchase of the suit property as her 'marriage' took place after a decade. At that relevant time she was in Bangladesh but Muktipatra [the deed of release] was executed in her presence. The other two counter claimants were not even born at that point of time when the property was purchased. Therefore, all the counter claimants were not aware how the property was purchased, unless the contents of the Muktipatra deed was proved to the satisfaction of the court, such fact would remain unsubstantiated. Both the courts below have discarded the contentions of the counter claimants that the questioned sale deed is forged one as the Muktipatra deed was executed by Pratima Bala Das showing her as the Benamdar of Page 12 of 13 the said property. Therefore, the fulcrum of the controversy is suspended on the issue that whether the Muktipatra deed which is virtually a declaration of Benami transaction was really executed by Pratima Bala Das. This is a pure and simple question of fact and both the courts below have decided that it is apparent from the evidence that the said deed was not executed by Pratima Bala Das. Moreover, Pratima Bala Das has deposed in the trial by stating that she did not execute the said Muktipatra. [11] The second question which is ancillary but relevant to the entire controversy is that whether the exercise of power under Section 173 of the Evidence Act was proper or not.
[12] Mr. Nandi, learned counsel appearing for the appellants has repeatedly persuaded this court by saying that the court cannot make the comparison. Invariably a reference has to be made to the handwriting expert under Section 147 of the Indian Evidence Act. The first and foremost question whether the fact of Benami transaction except by virtue of Muktipatra deed has been proved has not been answered to the satisfaction of the court. Hence, it has been correctly negatived. So far the exercise of power under Section 73 of Indian Evidence Act is concerned, it cannot be denied that the court has the power to exercise that authority to compare two deeds. Even to compare between a signature taken in the court room with the other signature for purpose of coming to a decision on the handwriting, falls within the competence of the court. The opinion of the handwriting expert under Section 47 of the Indian Evidence Act is a supplementary aid to the court to have reassurance. It is always the discretion of the Page 13 of 13 court whether it can come to an inference without any dilemma or doubt in respect of the handwriting or the signature. If the court is satisfied about its opinion, it cannot be held that the opinion is wrong only because the court has exercised that power without referring to the handwriting expert. That power has been provided as handy to a decision. When the court finds it difficult to come to a conclusive decision, the court may on its motion or having been asked by either of the parties may refer the matter for opinion of the handwriting expert under Section 47 of the Indian Evidence Act. It is well entrenched that it is always prudent for the court to take the opinion of the handwriting expert, but this is not an inflexible rule. The court can also exercise his own discretion to come to an opinion.
[13] In view of what has been observed above, this Court does not find any infirmity in exercise of the power under Section 73 of Indian Evidence Act and the cumulative effect is that both the appeals fail as there is no merit.
In the result, the appeals are dismissed.
Prepare the decree accordingly.
Transmit the records thereafter.
JUDGE Sujay