Calcutta High Court (Appellete Side)
Ms. Legjin Tshering & Ors vs Ms. Rinchen Chapkhanwalla & Ors on 27 September, 2013
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt, Soumen Sen
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
BEFORE:
THE HON'BLE JUSTICE TAPAN KUMAR DUTT, J.
AND THE HON'BLE JUSTICE SOUMEN SEN, J.
F.A.56 of 2007 Ms. Legjin Tshering & Ors.
Vs. Ms. Rinchen Chapkhanwalla & Ors.
For the Appellant : Mr. Saktinath Mukherjee, Sr. Adv.
Mr. Saptangshu Basu, Ms. Kabita Mukherjee, Mr. Manas Dasgupta For the respondent No.2 : Mr. Aniruddha Chatterjee, Mr. Rahul Karmakar Heard on : 15.03.2013, 22.03.2013, 19.04.2013, 26.04.2013, 03.05.2013, 10.05.2013, 28.06.2013 Judgment on : 27th September, 2013 Soumen Sen, J.:- This appeal is directed against the judgment and order dated September 7, 2005 dismissing O.C. Suit No. 75 of 1998.
The appeal was admitted on July 25, 2011. The earlier Division Bench (consisting one of us Justice Soumen Sen) while admitting the appeal remanded the matter to the Civil Judge (Senior Division), Darjeeling for deciding issues nos.5 and 6 afresh in view of a finding arrived at by the Division Bench that the trial Judge could not have made out a third case based on a family arrangement and, accordingly, findings arrived at by the trial Judge in respect of Issues Nos.5 and 6 were set aside.
The learned Civil Judge (Senior Division), Darjeeling in deciding issue Nos.5 and 6 held that the Partition Deed (Exhibit 7) is in effect a deed of family settlement. It was further held that the substituted plaintiff also could not produce the Will allegedly executed by the original plaintiff on 28th May, 1991 and so long as the alleged Will in favour of the substituted plaintiff is not probated or letters of administration obtained in respect thereof the sale deed under consideration in relation to the suit property would be valid.
During the pendency of the appeal, the substituted plaintiffs obtained the probate. Accordingly, the suit was remanded to the Civil Judge (Senior Division) for a decision on issue Nos.5 and 6 after taking into consideration the grant of probate and the observation made by this Court that it was not open for the Civil Judge (Senior Division) to make out a case of family arrangement which was not the case of either of the parties.
The said Issues Nos.5 and 6 are mentioned hereinbelow:-
"5. Is the Sale Deed executed by the defendant no.1 in favour of the defendant no.2 void?
6. Is the name of the defendant no.1 in the partition deed dated 20.04.1985 inserted out of courtesy and is not the defendant no.1 entitled to the suit property."
Thereafter on remand a judgment and decree was passed on October 14, 2011 in which the said issues were decided and answered in favour of the plaintiff.
Shorn of details, one Mrs. Nyima Lhamo, widow of late M.L. Tempa filed a suit against Smt, Rinchen Chapkhanwala and others in the Court of Civil Judge, (Senior Division) at Darjeeling, the plaintiff is the absolute owner of the schedule property and a decree for declaration of the alleged Sale Deed being Deed No.3212p dated 11th September, 1998 executed by the defendant No.1 in favour of the defendant No.2 as void, ab initio.
One Phu Doma and her brother Kami Tsahering since deceased jointly purchased Government lease-hold lands together with all structures standing thereon at that time known as 'Chapelton' being Municipal Holding No.12, Robertson Road and subsequently numbered as 15, Robertson Road from Mrs. Margaret Walesh and others by a Deed of Conveyance dated 28th October, 1946.
Phu Doma and Kami Tshering sold some properties to some persons jointly at different times till 1983. Since Kami Tshering and Phu Doma were facing difficulties in enjoyment of the said property jointly, they decided to make partition of their respective shares in the property by a registered Deed of Partition dated 20th April, 1985. The said Kami Tshering and the said Phu Doma partitioned their respective shares in the property amicably. Under the said partition deed, a portion of the dwelling house being Premises No.15, Robertson Road was allotted to said Phu Doma exclusively. The said share of the said Phu Doma has been categorically mentioned in the Schedule 'B' of the Partition Deed dated 20th April, 1985. The defendant No.1 is the daughter of the said Phu Doma. Phu Doma prior to her death on 7th January, 1988 executed a Will whereby all the moveable and immoveable properties including the suit schedule property was given to the plaintiff. Phu Doma died on 13th July, 1988. The original plaintiff executed a Will on 28th May, 1991 in respect of her moveable and immoveable properties and her nephews and nieces have been appointed as joint executors of the said Will. Kami Tshering, the appointed executor of the said Will applied for grant of probate of Last Will and Testament dated 7th January, 1988 before the Learned District Delegate at Darjeeling. The defendant No.1 is the only daughter of the testatrix and accordingly the citation was issued in her favour. The defendant No.1 challenged the genuinety of the last Will of the said Phu Doma dated 7th January, 1988 by filing written objection and, accordingly, the said probate proceeding became contentions and renumbered as O.C. (Probate) Suit No.3 of 1990. On 16th May, 1997 probate was granted. The appeal preferred by the defendant No.1 in this Hon'ble Court being F.A. No.255 of 1997 against such grant dismissed on 4th September, 2002. The plaintiff alleged that sometime in 1988, the plaintiff could ascertain that the defendant No.1 on a representation that she is the owner of the property had executed a registered deed of sale dated 11th September, 1998 in favour of the defendant No.2. In said deed of sale the defendant No.1 deliberately in misleading the authorities and the plaintiff and in collusion with the defendant No.3 manufactured and fabricated the Holding No. as 15/1, Robertson Road instead of mentioning it as part of Holding No.15, Robertson Road knowing fully well that the Holding No.15, Robertson Road has not been splitted up and there is no Holding No.15/1, Robertson Road standing in the name of Defendant No.1. The plaintiff claims that the defendant No.1 has no right, title and interest over the suit property, as such the defendant could not have sold and or dealt with the property in any manner. Moreover, the suit schedule property is not only dwelling house, but also belongs to a member of the Scheduled Tribe Community, as such dealing with such property in any manner is prohibited under the law of land.
On such facts, the plaintiff filed the aforesaid suit. Nyima Lhamo died on March 01, 2004 and thereafter the executors of Nyima Lhamo were substituted as plaintiffs. During the pendency of the appeal, the learned District Delegate by an order dated December 6, 2005 granted probate to the plaintiffs in Misc. Judicial (Probate) Case No.116/2005 in respect of the Will dated 28th May, 1991 of the original plaintiff Nyima Lhamo.
The defendant No.1 filed a written statement but did not appear thereafter.
The said defendant did not contest the said proceeding. In the written statement the said defendant contended that during his lifetime her father M.L. Tempa jointly with his brother-in-law purchased the self-same property and Phu Doma was benamdar of the suit property. After the death of M. L. Tempa, the said defendant and her mother jointly enjoyed the property together with her maternal uncle late Kami Tshering. In 1985 Kami Tshering and Phu Doma for proper enjoyment of their joint property and in order to avoid future complications proposed to partition "their" joint property Chapelton and with that purpose got their property partitioned by a registered Deed of Partition. According to the Partition Deed, the property mentioned in Schedule B fell in the share of the deceased mother of the defendant No.1 with the defendant No.1 and Schedule C property fell in the share of Kami Tshering and his legal heirs. Since partition of the property, the defendant No.1 together with her mother were enjoying and possessing the property as owners mentioned in Schedule B of the Partition Deed. After the partition of the property, the Municipal Holding No. of the premises was splitted into two separate holdings, being Holding No.15 and 15/1 Robertson Road. The holding No.15/1 was allotted to Rinchen Chapkhanwala and her mother. After the death of her mother, the defendant No.1 is living in her house at 15/1, Robertson Road, Darjeeling with her husband. The parties in the Partition Deed signed the instrument voluntarily and till today the said partition deed has not been challenged in any Court of law or to any authority concerned.
The defendant No.2 who claims to have purchased the said property from the defendant No.1 has also filed a written statement. In the written statement the defendant contended that the defendant had purchased the properties in good faith and being a bona fide purchaser in good faith and for consideration has acquired all right, title and interest in the properties in question.
The Board of Councilors being defendant No.3 also filed written statement in which the said defendant contended that on verification of its record it has been found that no Holding No.15/1 Robertson Road ever existed in the record maintained by the said office and as such there is no such holding number in existence. Holding No.15, Robertson Road has been re-numbered as Holding 1 Robertson Road and the owner of the said holding according to the records maintained by the defendant are as follows:-
a) Smt. Phu Doma
b) Mr. Wangchen Tshering
c) Mr. Jigma Tshering
d) Mrs. Sangmo Tshering and
e) Ms Legjin Tshering
The Civil Judge (Senior Division) on remand reconsidered the matter and answered issue Nos.5 and 6 in favour of the plaintiffs. The defendant No.1 is not represented in this proceeding. The defendant No.2, in fact, has attempted to argue the case of the defendant No.1 since they claimed to have paid the entire consideration for purchasing the said property from the defendant No.1.
The argument of the defendant No.2 is mostly confined to the pleadings of the defendant No.1.
Mr. Aniruddha Chatterjee, learned Counsel appearing on behalf of the defendant No.2 submits that the order passed by the Civil Judge on remand is beyond jurisdiction. The order is limited to the issues and the Court on remand cannot assume jurisdiction which does not form the order of remand. The trial Judge did not follow the guideline and the order of remand. The trial Judge had traveled beyond the scope of the said order. The Deed of Partition dated 20th April, 1995 would clearly show that a vested right has been created in favour of the defendant No.1. The reading of the said Deed of Partition would clearly show that Phu Doma, in fact, intended to create a vested right in favour of her daughter Rinchen Chapkhanwala and once a vested right is created in favour of Rinchen and having regard to the fact that the deed of partition is not under challenge, the plaintiffs did not acquire any right, title or interest in the property. It would appear from the said deed of partition that the intention of the mother to give a part of the property to the daughter is beyond any pale of doubt. Mr. Chatterjee has referred to the recital of the said deed in which the word "their" was referred in relation to first party and such expression followed even in respect of the second party and all throughout thereafter to show that the said defendant No.1 as daughter acquired an interest in the said property. The following recitals were referred to by Mr. Chatterjee in order to emphasize that the said document for all purposes has created a right, title and interest over the said properties along with the mother and once it is created by a subsequent Will, the said right cannot be divested:
"And Whereas the properties described in Schedule 'B' below and marked in green and shown in the map/plan annexed hereto have been allotted to the share of the First Party and the same will be retained by the First Party as their share.
That the properties described in the Schedule 'B' below and marked in green in the plan/map annexed hereto, shall be the absolute properties of the First Party who will possess and be the absolute owners of the same having right to lease out, mortgage, sell, alienate, assign and transfer by way of gift or Will and to deal with same in any manner they like and the Second Party shall have no share, right, title or interest in the same nor shall be the Second Party claim any share, right title or interest in the same."
An indefeasible right has been created in favour of daughter would also appear from the Will purported to have been executed by Phu Doma on 7th January, 1988 in which the mother in the residual clause mentioned that in the partition deed the name of the daughter was "by way of courtesy only" and the said daughter is a mere benamdar in respect of the said property. Mr. Chatterjee further drew inspiration from another clause of the said Will dated January 7, 1988 which says that Rinchen Chapkhanwala has been included in the partition deed dated 20th April, 1985 "by courtesy and she being mere benamdar she is not entitlted to the said property and for which intend to take necessary steps for rectification or for a Civil Suit for proper reliefs". It further reads "if I fail to take such steps in time the Executor of this Will will take the proper steps even after my death if my said daughter does not admit herself as a benamdar.........."
It was argued that, in fact, if it were not a partition deed, still then it could be treated as a gift and reference was made to Schedule IA and Serial Nos.33 and 35 of the Indian Stamp Act, 1899 in order to show that there stamp duties payable in respect of gift and partition are almost same and they are treated as similar for that purpose. It was contended that the stamp duty for gift and partition are same and, accordingly, the Court should read the said Deed of Partition as a document creating a gift in favour of the daughter.
The learned Counsel has relied upon Paragraph 16 of the decision reported in AIR 1953 SC 495 at Page 500 (C.N. Arunachala Mudaliar v. A. Muruganatha Mudaliar & Anr.) for the proposition that there could be a deed within a deed. The said Paragraph 16 is reproduced hereinbelow:-
"16. As the law is accepted and well-settled that a Mitakshara father has complete powers of disposition over his self- acquired property, it must follow as a necessary consequence that the father is quite competent to provide expressly, when he makes a gift, either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family. If there are express provisions to that effect either in the deed of gift or a Will, no difficulty is likely to arise and the interest which the son would take in such property would depend upon the terms of the grant. If, however, there are no clear words describing the kind of interest which the donee is to take, the question would be one of construction and the court would have to collect the intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the well-known canons of construction. Stress would certainly have to be laid on the substance of the disposition and not on its mere form.
The material question which the court would have to decide in such cases is, whether taking the document and all the relevant facts into consideration, it could be said that the donor intended to confer a bounty upon his son exclusively for his benefit and capable of being dealt with by him at his pleasure or that the apparent gift was an integral part of a scheme for partition and what was given to the son was really the share of the property which would normally be allotted to him and in his branch of the family on partition. In other words, the question would be whether the grantor really wanted to make a gift of his properties or to partition the same. As it is open to the father to make a gift or partition of his properties as he himself chooses, there is, strictly speaking, no presumption that he intended either the one or the other."
It was submitted that in construing a document apart from the intention of the parties, the Court is also required to see the substance of the document and must give precedence to substance over the form. It was submitted that if on a reading of the document, the court finds that the intention of the mother was to give the property in favour of the daughter nonetheless, the document is a deed of partition, the Court should lean in favour of an interpretation which would support such interpretation in favour of the daughter disregarding the nomenclature given to the document. The learned Counsel would submit that although the document is "dressed as partition" but in effect it is a gift in favour of the daughter. On this aspect, the learned Counsel has referred to the following decisions:-
I) AIR 1959 SC 1262 (Para 27) (Associated Hotels of India Ltd. v. R.N. Kapoor);
II) 2004(12) SCC 368 (Paras 6, 9, 10) (Achintya Kumar Saha Vs. Nanee Printers and Ors.);
III) 1999 (4) SCC 545 (Paras 16, 21, 26, 27) (Delta International Ltd v. Shyam Sundar Ganeriwalla and others (1999) 4 SCC 545) IV) AIR 1978 Mad 54 (Para 3) (Ramaswami Naidu & Anr. v.
Gopalakrishna Naidu & Ors.) It was argued that whatever the parties might say the document is the best evidence in order to ascertain the intention of the parties and in this regard he has relied upon 7 Indian Appeal 8 (Dinomoyi Debi v. Ray Luchmiput Singh). Mr. Chatterjee would invite us to the doctrine of contra proferentem in order to accept his argument that in case of conflict of construing the various clauses in the said deed, the construction which favours the guarantee and goes against the guarantor must be accepted. The learned Counsel has placed reliance on 2003 (3) CHN 500 (Para 6) (Transport Corporation of India Ltd. v. Pratima Bose). It was argued that it would appear that the mother had no reservation of giving a share to the daughter in respect of the suit property and the daughter became a co-sharer of the said property. Irrespective of fact whether the acquisition of title is by way of partition or gift, the avowed and expressed intention of the mother was to give a share of her to the daughter is visible and apparent from the document itself.
Mr. Chatterjee has relied upon AIR 1948 Nag 328 (Para 9) (Mt. Bhagabati v. Ghanshamdas) in considering that where a gift has been effected by a registered instrument and has been acted upon by the donee, the effect of such instrument is that title legally passes from the donor to the donee and any mental reservation or secret intention on the part of the donor to the contrary is indeed ineffective and cannot prevent the legal effect of a validly executed gift deed.
The mother was well aware and conscious that an interest has already been created in favour of daughter and that was the precise reason why the mother in the Will executed in 1988 tried to dilute the efficacy of the deed of partition and the right created thereunder in favour of the daughter by mentioning that the name of the daughter was mentioned by courtesy and she is, in fact, a benamdar and steps should be taken for rectification by a civil suit claiming proper reliefs. The daughter was admitted to be a benamdar in respect to the suit property. The learned Counsel has relied on 2004(3) CHN 585 (Para 10) (Ava Rani Sengupta & Ors. v. Laxmi Sengupta & Ors.) for the proposition that if a deed is not challenged then it should be treated as sacrosanct. It was argued that the gift made in favour of the daughter is valid and it would appear from the interpretation of the deed itself. It was argued that the suit was decreed on the basis of evidence of a power of attorney holder who was unable to throw any light with regard to the claims made by the original plaintiff. The evidence of the power of attorney holder is treated as a hearsay evidence. In this regard Mr. Chatterjee has relied upon 2005(2) SCC 217 (Paras 23, 25) (Janki Vastideo Bhojwani & Anr. v. Indusind Bank Ltd. & Anr.). The trial Court on remand has traveled beyond its jurisdiction and has assumed a wider jurisdiction and entered into examining the whole controversy afresh is the other challenge thrown to the judgment by Mr. Chatterjee in relying upon AIR 2004 SC 1815 (Para 22) (Jamshed Hormusji Wadia v. Board of Trustees, Part of Mumbai).
The daughter has become the absolute owner even if it is held to be a benamdar since a plea of benami would be hit by Section 4 of the Benami Transactions (Prohibition) Act, 1988 is what Mr. Chatterjee emphasized during his argument. It was argued that Section 4 creates substantive rights in favour of the person in whose name the property is held. It further protects "any other person" from being sued by or on behalf of a person claiming to be the real owner of the suit property and prescribes substantive rights in favour of the real owners. The learned Counsel has also relied upon 1989 (1) CLJ 1 (Urmila Bala Dass v. Probodh Chandro Ghosh & Ors.) and 1993 (1) CHN 307 (Para 153) (Ratanlal Bansilal & Ors. v. Kishorilal Goenka) for the aforesaid proposition.
Mr. Saktinath Mukherjee, learned Senior Counsel appearing on behalf of the plaintiff submits that the deed of partition as attempted to be construed and interpreted by the respondent No.2 is totally unacceptable and contrary to the cannons of construction of deed. The plural expression in the recitals of the partition deed are only to show how the families to be described in the deed. It was submitted that the Court should take into consideration the pleading of the daughter in her written statement. The daughter has questioned the title of the mother on the ground that the mother was mere benamdar. The claim of the daughter is not based on the deed of partition but on the law of succession. Mr. Mukherjee has relied upon sub-paragraph 1(g) to show that the partition was in between Phu Doma and Kami Tshering for proper enjoyment of their joint property. In describing each family, the names of the legal heirs were also mentioned and included. Though a Written Statement had been filed on behalf of the defendant No.1 Rinchen never appeared and adduced any evidence to substantiate the pleas taken.
The averments made in the Written Statement are not evidence and the learned Senior Counsel has referred to the decisions reported in AIR 1982 Allahabad 385 (Paras 8 and 9) (National Insurance Co. Ltd. v. Yogendra Nath Verma & Ors.) and AIR 1946 Patna 373 (Emperor v. Tuti Babu) The daughter never made any endeavour to substantiate the plea of Benami taken in the Written Statement. The Defendant No.2 had unequivocally admitted that Phu Doma and Kami Jointly purchased the property in 1946, Phu Doma and Kami sold the different parts of the properties to different other persons till 1983, Phu Doma allegedly executed a Will in 1982 bequeathing all her properties to Rinchen and Phu Doma and Kami jointly decided for their mutual convenience to partition "their joint property Chapelton".
It was argued that nowhere in the Written Statement nor in the Deed of Partition or in the deed of sale a case was made out that Rinchen had any antecedent claim to the property involved.
If there were any antecedent title or even a claim to title a document could be construed as a family settlement. It is the document and document alone standing apart and containing the necessary ingredients which needs to be construed, when a case of family settlement has not been made out. It is not open to the court to make out and accept a third case as clearly enunciated in AIR 1968 SC 534 (Sita Ram Vs. Radha Bai) and 1998(8) SCC 315 (D.M. Deshpande & Ors. Vs. Janardhan Kashnath Kadam (Dead) & Ors.). This is where the learned Civil Judge had committed error which was set aside and matter remanded for fresh consideration of Issue Nos.5 and 6.
It was argued that Rinchen was a party to the Deed of Partitiion and to the Deed of Sale. In the Written Statement as well as in the Deed of Sale Rinchen made her own sale subject to the result of the probate appeal then pending in the Hon'ble High Court. During the hearing of the Probate Appeal in the Hon'ble High Court it was clearly submitted that a grant of the probate will nullify the Deed of Partition. Thus Rinchen was not claiming an independent antecedent title. On the contrary she was claiming a derivative title flowing out of the Deed of Partition.
The learned Senior Counsel has referred to commentaries by Mulla Transfer of Property Act, 10th Edition, under Section 5 and in relation to partition where it has been observed:-
"A partition is not actually a transfer of property, but to analogous to an exchange. Justice Mookerjee in a case decided by the Calcutta High Court, said that partition signifies the surrender of a portion of a joint right in exchange for a similar right from the co-sharer......... In Sarin vs. Poplai C.J. Gagendragadkar has observed that true effect of the partition is that each coparcener gets specify property in lieu of his entitled right in respect of the totality of the property of the family......."
There cannot be a partition with a stranger having no interest in the joint property. His or her participation can at best be treated to be confirmatory.
The creation of an interest in favour of Rinchen was prohibited under Section 14B of the Land Reforms Act, 1955. The Deed of Partition indicates that Rinchen was then married. Rinchen in her Written Statement and in relation to the specific plea of non-transferability of the property of a Member of Scheduled Tribe has pleaded that "she inherited the caste of her husband". In any case the transfer by Rinchen to Defendant No.2, is hit by Section 14B of the Land Reforms Act, 1955. Such bar is not merely a legal bar but also founded upon the socio- economic considerations enjoining the sanction of the Constitution of India. The transfer of defendant No.2 to a developer has ominous implications in respect of Chapleton the residential premises of the Scheduled Tribe family.
We now propose to examine the rival contentions and give our findings.
On remand, the learned Civil Judge (Senior Division), Darjeeling decided the Issues Nos.5 and 6 against the defendant and answered the said issues in favour of the plaintiffs. In view thereof, a cross appeal has been preferred by the defendant No.2. The grounds of challenge to such findings are apparent from the submissions made on behalf of the said defendant as recorded earlier.
The learned Civil Judge after duly recording the submissions made on behalf of the parties on remand and on consideration of the evidence on record held that the sale deed executed by the defendant No.1 in favour of the defendant No.2, is void.
In arriving at the said conclusion, the learned Civil judge has taken into consideration the respective pleadings as well as the evidence adduced on behalf of the Darjeeling Municipality being the defendant No.3. The learned Civil Judge accepted the submissions made on behalf of the plaintiffs that although the name of defendant No.1 is mentioned in the partition deed, but, in effect it is a partition between Phu Doma and her brother Kami Tshering and the defendant No.1 did not acquire any right, title or interest in respect of the said property. The said property was purchased by Phu Doma and her brother Kami Tshering. The said title cannot pass to the defendant No.1 by mere "admission". The learned trial Judge also appears to have accepted the submission made on behalf of the plaintiffs that the mere mentioning of the name of the heirs of the co-sharers cannot give any right, title or interest to such legal heirs. The properties can be partitioned only between the co- owners and at the relevant point of time as the defendant No.1 was not the co-owner, so he did not acquire any right, title or interest by way of partition. The evidence of PW2 and PW3 was also considered by the learned trial Judge when the said witnesses stated that after mutation, the names of the parties as appearing in the assessment registrar was prepared and those names were mutated and are duly recorded in the assessment registrar. The assessment registrar was produced by PW2, an employee of Darjeeling Municipality and from the assessment registrar, it appears that the Premises No.15 (Old) and 1(New) at Robertson Road are one and the same. The said witnesses have categorically stated that there is no mention of any premises bearing No.15/1 Robertson Road.
During the cross-examination, the evidence on the basis of such assessment registrar was not demolished in respect of the contention recording splitting of the present holding No.15. The learned trial Judge accepted the said evidence since the said witness is an independent witness and he deposed in his official capacity on the basis of the record maintained by the municipality. Accordingly, the contention of the defendant No.1 that the holding was splitted and recorded in Darjeeling Municipality as holding No.15/1 was contrary to record and the said contention was rejected by the learned trial Judge. The suit relates to holding no.15 Robertson Road and the evidence-on-record appears that there is no acceptance of the premises bearing holding No.15/1 Robertson Road. On the basis of the evidence, the learned trial Judge held that the alleged transfer in favour of the defendant No.2 by the defendant No.1 in respect of the holding No.15/1 Robertson Road is not valid.
In construing the deed of partition (Exhibit 3) it was held that partition means all coparceners has subsisting title to the entire property and that joint title is transformed into separate entities with individual title by way of partition. Since the defendant No.1 had no title to the property purchased by her mother and maternal uncle which was partitioned during the lifetime of her mother Phu Doma mentioned of her name in the said deed of partition would be of little significance. The mentioning of her name in the deed of partition does not confer any title in the said property which was partitioned by the co-owners whose title to the property remains unchallenged and unquestionable. The defendant No.1 although had thrown a challenge with regard to acquisition of title by Phu Doma and her maternal uncle, Kami Tshering on the allegation that the said property was purchased out of the funds of her father M.L. Tempa and Phu Doma was a benamdar could only be proved at the trial. The defendant no.1 did not appear and adduce any evidence in the suit in respect of the aforesaid contention. In absence of any evidence, the learned trial Judge held that the defendant No.1 could not be conferred with any share of her father along with her mother after the death of her father. The law of succession would not apply since Phu Doma and Kami Tshering remained joint owners of the said property before the partition was effected on 20th April, 1985.
We see no reason to differ with the findings arrived at by the learned trial Judge on construction of the partition deed as well as the Will.
In fact, it appears that Mrs. Nyima Lhamo applied for Letters of Administration in respect of the Will dated 7th January, 1988 executed by Phu Doma before the learned District Judge, Darjeeling in view of the fact that the brother of Phu Doma who was appointed as the sole executor died on 7th November, 1999 during the pendency of the probate proceeding. The said grant was contested by Ms. Rinchen Chapkhanwalla on various grounds which, inter alia, include that the Will in question was an unnatural Will executed in suspicious circumstances and procured by Nyima Lhamo in collusion and conspiracy with Kami Tshering by fraudulently inducing Phu Doma to make a Will with the object of depriving Rinchen from inheriting her mother's properties and the testatrix at the relevant time did not have testamentary capacity for executing the purported Will. The learned District Judge, Darjeeling by a judgment dated 16th May, 1997 decreed the suit upon holding that the Will dated January 7, 1988, had been lawfully executed by Phu Doma and directed Letters of Administration to be issued with the copy of the said Will in favour of Nyiam Lhamo. The appeal was preferred against the said judgment and decree in this Hon'ble Court being F.A.255 of 1997. In the appeal, as it appears from the judgment dated 4th September, 2002, it was submitted on behalf of Rinchen that Will dated 7th January, 1988 purports to nullify the effect of the deed of partition and it is sought to be shown that Rinchen was in permissive possession of the property of the testatrix at Darjeeling which is legally absurd since by virtue of the deed of partition Rinchen became the absolute owner of the property. Nyima Lhamo and Kami Tshering fraudulently induced Phu Doma to make the Will in favour of the Nyima Lhamo Although Phu Doma had earlier made a Will leaving her properties to Rinchen and had also executed a deed of partition allotting her Darjeeling property to the appellant.
The Hon'ble Division Bench dismissed the said appeal by a judgment and order dated 4th September, 2002, inter alia, stating:-
"In the instant case, the testatrix was at liberty to exclude the appellant from her Will and it was for the appellant to prove that such exclusion was brought about by undue influence or that the testatrix was not in full command of her physical and mental condition and that her weakened state, both physical and mental, had been taken advantage of by the respondent to cause such exclusion.
In our view, the appellant has failed to discharge such onus and in view of the evidence adduced on behalf of the respondent it must be held that the learned Court below was right in holding that the appellant had failed to establish that the Will had been preferred and executed in unnatural and/or fraudulent circumstances and had rightly directed issuance of Letters of Administration in favour of the respondent.
Having regard to the above the appeal must fail and is accordingly dismissed and the application for vacating the interim order is also disposed of accordingly."
One of the suspicious circumstances on which Rinchen questioned the genuineness and valid execution of the Will is that after having executing the deed of partition, there could not be any occasion for executing a Will at a much later date and the circumstances surrounding execution of the said will at a later date are suspicious and, accordingly, the Court should not grant such Letters of Administration in favour of Nyima Lhamo. The learned District Judge as well as the Hon'ble Division Bench did not find any suspicious circumstances surrounding the execution of the Will and the Will was held to be properly and validly executed by Phu Doma.
The case stated in the written statement by defendant No.1 remains unproved. Rinchen although had the opportunity to appear and contest the suit as it appears that she had strenuously and painstakingly tried to contest the testamentary proceeding, did not appear and record her evidence. The written statement cannot be treated as an evidence. Oral evidence is required to prove the statements and assertions made in the written statement. The burden of proof has not been discharged. Moreover, as the learned Civil Judge (Senior Division) has rightly held that Rinchen had failed to prove by any evidence that her mother was a mere benamdar. Rinchen had taken various stands in the written statement ranging from the plea of benamdar to her right of succession by inheritance as her defence to the claim of the plaintiff. She tried to give her own interpretation of the deed of partition. However, in spite of opportunities available to her to give, appear and depose in the proceeding in support of her defence by way of rebuttable evidence to demolish the claim of the plaintiff and establish her defence the same at the trial had failed to do so. It appears that Rinchen after having failed to resist the Will had completely lost interest in the matters since one of the sheet anchors of challenge to the Will of her mother was that in view of the existence of the partition deed allotting a share to her, the execution of the Will has been made fraudulently and under circumstances which are suspicious in nature.
We had already referred to the passage from Mulla on which Mr. Mukherjee had relied upon and there cannot be any two opinion that to effect a partition, there has to be a pre-existing right. The parties having a pre-existing right over a property can only decide amongst themselves as to how they would divide the properties amongst themselves. The recitals in the partition deed, clearly spelt out that Phu Doma and her brother wanted an amicable partition of the joint property and, accordingly, a division was made of the properties for better enjoyment of the said properties by the said co-sharers. The recital to the deed of partition makes the purpose of the deed of partition quite clear as it clearly records and recites:-
"And whereas the aforesaid parties having been in joint possession and enjoyment of the said properties, Mrs. Phu Doma of the First Party and Mr. Kami Tshering of the Second Party had jointly transferred some portions of the vacant lands on the North, first to Mr. P.Ll. Pradhan in the year 1970 and thereafter to mrs. Lhamu Tshering and others in the year 1983.
And whereas the abovenamed parties are now in joint possession and enjoyment of the properties fully described in the Schedule 'A' below each having eight annas share thereon.
And whereas the abovenamed parties having desired to maintain peace and amity between the parties and also for the sake of convenient enjoyment of their respective shares agreed to amicably partition the said properties mentioned in the Schedule 'A' below.
NOW THIS INDENTURE WITNESSETH that in pursuance of the said agreement and in consideration of the premises falling to the share of each of the abovenamed parties, the parties do hereby partition between themselves in the proportion mentioned in the Schedule 'A' below in the manner hereunder with effect from the date of this indenture."
The said recital makes the object and purpose of execution of the deed of partition clear. In view of failure to establish the plea of benamdar, it remains undisputed that as on the date when the said deed of partition was executed, Phu Doma and Kami Tshering were the joint owners of the said property to the exclusion of all others. The subsequent mention of the legal heirs of Phu Doma and Kami Tshering in the body of the partition deed, in our view, are only descriptive without any right, title or interest created in favour of any of such legal heirs.
In Hiraji Tolaji Bagwan Vs. Shakuntala reported in 1990 (1) SCC 440, the Hon'ble Supreme Court has clearly stated that even if a family settlement which is sometimes accepted by the Courts in lieu of partition, the parties are legally entitled to such shares. A partition of the property can only be made among the parties who have a pre-existing right to the property. It was stated that under the Hindu law, a female, major or minor, has no share in the ancestral property. A female is given a share either in the self-acquired property of the husband or the father, or in the share of the husband or the father in the coparcenary property after the property is partitioned.
A very liberal construction of the said deed of partition had at best led to the conclusion that the legal heirs of the respective co-owners were under occupation of the respective properties under a grant or a licence and it is only a permissive occupation. Rinchen can only claim right over the property either under a Will or by natural succession. It is true that she was the only surviving heir to succeed to the estate of Phu Doma had there been no Will, however, the execution of the Will had already been held against Ms. Rinchen.
In Dinomoyi Debi (supra) the Privy Council stated that it is a cardinal rule of evidence, not one of technicality but of substance, which it is dangerous to depart from, that where written documents exist they shall be produced as being the best evidence of their own contents. The deed of partition is the best evidence of the intention of the parties, which leaves no ambiguity as to the professed intention of the respective co-owners of dividing the properties amongst themselves amicably for better enjoyment.
Mr. Aniruddha Chatterjee would persuade us to read that the deed of partition is, in fact, creating a right, title or interest in favour of Rinchen and he sought to explain such creation on interest as a gift thereby entitling Rinchen to a half share in the property partitioned. We are unable to accept such contention. In the first place, no such case has been made out in the written statement filed by the defendant No.1. Secondly, on a plain and clear reading of the deed of partition, it does not appear to us that Phu Doma, in fact, intends to create any interest in favour of daughter. The mention of daughter in the deed of partition is only to describe the family of Phu Dom as the same was done with Kami Tshering. It is settled law that the intention of the parties must be discovered as far as possible from the expressions they have used in the document. It is true that often expressions used by the parties to documents have caused difficulty of interpretation, that is, of determining what the parties actually meant or intended when they used certain words or made use of particular expressions.
Lord Wensleydale (Monypenny v. Monypenny (1861) 9 H.L.C. 114 at p. 146) gave a warning of the distinction indicated above when he said:
"The question is not what the parties to a deed may have intended to do by entering into that deed, but what is the meaning of the words used in that deed: a most important distinction in all cases of construction and the disregard of which often leads to erroneous conclusions."
Similarly Sir Gorrell Barness P. said in a testamentary suit:
"But what a man intends and the expression of his intention are two different things. He is bound and those who take after him are bound by his expressed intention. If that expressed intention is unfortunately different from what he really desires, so much the worse for those who wish the actual intention to prevail." (Simpson v. Foxon [1907] p. 54 at p. 57) So in a very old case it was said: "The court cannot understand the true intent of the indenture but only by the words of the indenture."
(Kidder v. West (1684) 3 Lev. 167) "I am disposed to follow the rule of construction which was laid down by lord Denman and Baron Parke.... They said that in construing instruments you must have regard, not to the presumed intention of the parties, but to the meaning of the words which they have used." (Re meredith, ex p. Chick (1879) 11 Ch.D. 731 at p. 739 per Brett L.J.) "One must consider the meaning of the words used, not what one may guess to be the intention of the parties," said Jessel M.R., which plainly shows that however much one may suspect that the parties intended one thing, yet if their words plainly import another, the latter is the true construction, as the "court deals with a deed according to the clear intention of the parties appearing in the four corners of the deed itself." (Beaumont v. Marquis of Salisbury (1854) 19 Beav. 198 at p.206 per Romilly M.R.) As Pearson J. said: (Hilbers v. Parkinson (1883) 25 Ch.D. 200 at p. 203) "I conceive that all deeds are to be construed not only strictly according to their words, but so far as possible, without infringing any rule of law, in such a way as to effectuate the intention of the parties."
The intention of the makers of the said deed of partition are to divide the properties amongst themselves for proper and better enjoyment of the said properties. The Court would lean in favour of a construction and apply the rule that the intention may prevail over the words used when the words in the literal meaning failed to carry out the obvious intention of the parties. We may give two illustrations of such situation:-
There the question was whether the failure of one of the fathers of a married couple to perform his covenant to settle property discharged the other father from his obligation to do so.
The words in their literal meaning failed to carry out the obvious intention of the parties, i.e., to settle property on the married couple. The obligation of the one was not removed by the failure of the other.
"Another maxim is 'that such a construction should be made of the words in a deed, as is most agreeable to the intention of the grantor; the words are not the principal things in a deed, but the intent and design of the grantor'."
So, in Re Alcock decd. (1945 (1) Ch. 264), a testatrix had bequeathed the residue of her property to be divided equally between her nephew and "the three children of my cousin." The cousin was unnamed and had four children all surviving the testatrix and on friendly terms with her. It was clearly her intention to benefit all the children of the cousin.
The law is anxious to save a deed if possible. This is sometimes expressed in the maxim ut res magis valeat quam pereat. If by any reasonable construction the intention of the parties can be arrived at and that intention carried out consistently with the rules of law, the court will take all course. So anxiously is this intention sought, that if words are capable of more than one construction, the construction to be adopted in interpreting the document is to be that which is in accordance with the intention: "a deed shall never be void, where the words may be applied to any intent to make it good." This maxim is often invoked when courts attempt to uphold business contract rather than destroy or invalidate them. (See Odgers' Construction of Deeds and Statutes, 5th Edition, G. Dworkin) Mr. Chatterjee would submit that the nature of a document depends upon its substance and not upon the name given to it in drawing sustenance from Mt. Bhagabati (supra). In the instant case, the intention of the parties are discernible from the documents itself, namely, that the sister and brother wanted to divide the joint property amongst themselves. It is not permissible to guess at the intention of the parties and substitute the presumed for the expressed intention. (Manindra Chandra nandi v. Raja Durga Prashad Singh; AIR 1917 PC 23).
If the intention of the parties can be ascertained from the deed itself, the Court would give effect to that intention.
Mr. Mukherjee has relied upon the Division Bench judgment of our Court reported in 2000 (1) CLJ 590 (Shyamal Kr. Ghosh Vs. Anjali Das) for the proposition that even if it is assumed that the daughter after marriage remains a member of the Scheduled Tribe, she cannot by reason of Section 14(b) of the Land Reforms Act, 1955 sell the said property to the defendant No.2 who is admittedly a company. Mr. Mukherjee, in fact, has referred to Paragraph 13 of the Plaint in which it is stated:-
"13. That the defendant No.1 has no right, title and interest over the suit property, as such cannot sell and/or deal with the property in any manner. Moreover the suit Schedule property is not only dwelling house, but also belongs to a member of the Scheduled Tribe Community, as such dealing with such property in any manner is prohibited under the law of the land."
Ms. Rinchen in dealing with the said allegations stated in Paragraph 15 that she has every right to deal with the property unless restrained by any order of any court of law. The defendant having inherited the surname of her husband after her marriage it is not necessary to seek any permission. However, the allegations being the matter of law, the defendant does not intend to answer.
Section 14(b) of the West Bengal Land Reforms Act, 1955 makes it quite clear that a Scheduled Tribe may transfer his holding by a Will to a person belonging to a Scheduled Tribe, this is to say, a Scheduled Tribe may transfer his holding by a Will only to a person belonging to a Scheduled Tribe. There is no dispute that Phu Doma belongs to a Scheduled Tribe and, accordingly, she could not have dealt with the said property contrary to Sections 14(b) and 14(c) of the said Act.
However, in view of the conclusion, we have arrived at that the said deed of partition does not create any right, title and interest in favour of Rinchen Chapkhanwala, we concur with the findings arrived at by the learned Civil Judge (Senior Division) in respect of issues Nos.5 and 6. Since the aforesaid issues have been decided in favour of the appellant after remand the grievance of the appellants in the appeal is fully redressed. The said findings in favour of the plaintiffs entitle the plaintiffs to get a decree in the suit. The cross-objection filed consequent upon the decision returned by the learned trial Judge after remand in view of the aforesaid findings stands dismissed. Since Rinchen Chapkhanwala did not acquire any interest in the property the alleged Sale Deed being Deed No.3212P dated 11th September, 1998 is void, ab initio.
The entire defence of the defendant No.2 depends upon a finding being arrived at in favour of the defendant No.1, if the defendant No.1 does not have any interest in respect of the said property. The creation of any interest in favour of the defendant No.2 in respect of the self-same property could not and does not arise. Accordingly, it is no defence that the defendant had purchased the property in good faith and being a bona fide purchaser in good faith has acquired right, title and interest in the properties in question. In view of our aforesaid findings, the defendant No.2 cannot have any claim nor the said defendant No.2 can make any claim in respect of the property in question.
In view of the aforesaid, the plaintiff is entitled to a decree as claimed in the plaint. Accordingly, there shall be a decree in terms of Prayer (a), (b) and (c) of the plaint. The plaintiff is further entitled to the declaration that the description of the properties mentioned in the impugned Sale Deed being Deed No.3212P dated September 11, 1998 is part and parcel of the Holding No.15 and there is no existence of any Holding No.15/1 as mentioned in the impugned sale deed. Under the facts and circumstances, however, there shall be no order as to costs.
It appears that in an earlier proceeding, the defendant No.1 was sentenced to imprisonment for a period of one month for violating an order arising out of a proceeding initiated by the plaintiff under Order 39 Rule 2A and Order 39 Rule 4 of the Code of Civil Procedure in connection with O.C. Suit No.75 of 1998. The Hon'ble Division Bench recorded that the defendant No.1 had violated the order of the Court directing maintenance of the status quo by giving possession of the property in question to the agents of the defendant No.2 and it was on such finding, the defendant No.1 was sentenced to imprisonment. However, the interim order of status quo was modified by restraining the defendant No.1 from permitting the defendant No.2 or its agents, employees or servants or any other persons to be in occupation of the suit premises. The Officer-in-Charge of the local Police Station was directed to put the premises in question under lock and key subject to the further order of the trial Court and submit a report before the trial Court every month as to the status of the suit premises. We direct continuance of with the aforesaid order by directing the Officer-in-Charge of the local Police State to keep the premises in question under lock and key subject to the further order that may be passed by the Civil Court or the Executing Court as the case may be.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.
(Soumen Sen, J.) I agree:
(Tapan Kumar Dutt, J.)