Calcutta High Court
Partha Talukdar vs Mina Hardinge And Others on 22 September, 1992
Equivalent citations: AIR1993CAL118, AIR 1993 CALCUTTA 118, (1993) 1 HINDULR 322 (1993) 1 CAL LJ 1, (1993) 1 CAL LJ 1
ORDER
1. This is a partition suit relating to the land and building at 5, Sunny Park and the moveable goods therein.
2. The property originally belonged to one Pramatha Nath Talukdar who died in England in July 1977. This partition suit has been filed by Pramatha's son Partha who was born to him in 1947 by his first wife Romole whom he married in 1939 and divorced in or about 1952. Romole remarried another in 1958.
3. In my opinion, this is a worthless suit and should never have been filed, but 1 must state certain facts before I explain why.
4. There is a full sister of Partha, being the defendant No. 5 herein, Mandira, who was born in 1941. The second wife of pramatha was one Laila Jhawar. At the time of her marriage in or about 1954, Laila had a daughter named Nilofer by her earlier husband; Pramatha had a son Sanjay by Laila in or about 1956. Sanjay is the 4th defendant herein. Laila was divorced in 1963.
5. Pramatha's third wife was Meena, the first defendant herein, whom he married on the 10th April, 1965 and by whom he had two sons Ranjit and Sanjit being the 2nd and the 3rd defendants herein, born in 1966 and 1968. Meena married one Paul Harding a few years after Pramatha's death.
6. Partha married in late 1969 and went to live in his own flat in 1970 with his wife Nina at Tivoli Court. In March-April, 1969, Partha was living with his father Pramatha as father and son in one family, at 5 Sunny Part with Sanjay, Meena, Ranjit and Sanjit. Evidence in this suit was given by Partha, Mandira and Sanjay, not to mention the short and pointless evidence of a driver called by Partha. It was quite clear during the taking of evidence that Mandira was siding with Partha, and Sanjay was siding with Meena because her stand appeared to be appropriate to him.
7. There are various other facts which have come out at length in evidence, but though these might be of interest to the novelist, they have no value whatsoever for a legal decision being reached in this suit.
8. On the 19th April, 1969 Pramatha declared in writing on stamp paper of Rs. 3/-that he had on the 14th of April of that year, being the first day of the Bengali year converted the land, building and goods at 5, Sunny Park into joint Hindu Undivided Family property, he being the Karta of the family consisting of Meena, Sanjay, Ranjit and Sanjit. Partha was left out.
9. The said document of 19-4-69 is exhibit "C" in this proceeding.
10. There were departmental proceedings in relation to tax assessment regarding exhibit "C" and its validity. If the declaration were to be held as valid, Pramatha would be assessed to tax in regard to 1/5th share of the said property whereas if exhibit "C" were to be held as invalid the entire property would be assessed to tax in the sole individual hands of the Pramatha alone.
11. The department made queries both from Pramatha and Partha in that the described joint family in exhibit "C" sought to leave out Partha, who was Pramatha's son. Exhibits 5 and 6 show that both Partha and Pramatha agreed in 1975 before the department that Partha was not a member of the family of Pramatha.
12. There was also a departmental miscellaneous application whereby the department sought to challenge exbt. "C" as being invalid for it purported to bring property into the joint family which was truncated in its description. The department's case was that Partha being a member of the family as Pramatha's son, and yet Partha not being included in exbt. "C", the declaration could not be acted upon. Such application was rejected on 19-7-75 by the IT. Appellate Tribunal (Ex. 14). There still remained certain issues open, and accordingly a reference was made to the High Court. The Division Bench decision is reported in 135 ITR page 628 :
(1981 Tax LR 1686) (Commr. of I.T.V.P.N : Talukdar). The question formally referred there was to the effect whether on the facts and circumstances of the case, the bringing about of Exbit. "C" was effective and valid. The exact question would be found set out in the judgment at page 631 and the material portion of exhibit "C" is set out at page 630.
In the reference proceeding, which was decided on 6th January, 1981, both Partha and Mandira were substituted after the death of Pramatha. No point was taken by any of the parties in the reference that Exbt. "C" was bad, because contrary to Law, Pramatha had sought to create a joint family which did not then exist in that truncated form.
13. The Bench came in effect to the conclusion that Exbt. "C" was valid. It came to the conclusion after reciting the names of the members included in the described family of the Pramatha, whom I have mentioned above.
14. All the parties herein being on record in the reference proceeding the judgment therein would bind them in some way. It would not be appropriate to say that the said tax decision is a strict technical res judicata as between the parties herein. Yet the decision has a binding effect, even though the deciding Court is a tax Court, i.e., a curia designata for some special taxing statute, and this Court is a general civil court with exclusive jurisdiction to decide the rights amongst the individuals or assessees or their representatives inter se.
15. On the basis of the said decision the persons named in the declaration of 19-4-69 would have to be assessed to tax at 1/5th share each, whenever the occasion arises.
16. The principle of avoidance of conflict or decisions can arise in numerous ways. In legal matters, predetermination of possible situations always proves to be impossible, because life is more various than the law. In an arbitration situation, involving a tripartite dispute that arose from a general average action amongst the shipowner, the charterer and the bill of lading holder, an arbitration clause bound two of them, but not the third.
In that situation, when a party to the arbitration agreement applied to stay an action, Mc Nair J. said:--
"a serious risk would be run that our whole judicial procedure at any rate in relation to this claim, would be brought into disrepute if, as I have indicated is a serious possibility, you get conflicting questions of fact decided by two different tribunals."
17. The case was Pine Hill, (1958) 2 Lloyd's Rep. 146. The above quotation was quoted by T.ord Denning in a Court of Appeal decision in the case of Taunton Collins, (1964) 1 WLR 633. In that case their Lordships maintained an order refusing to stay an action at the instance of a building contractor on the basis of an arbitration clause, which existed between the plaintiff and the building contractor, but did not bind the supervising architect, who was the first defendant to the action.
18. In the above ease, Lord Denning described the above reasoning of Mc Nair J. as "a reason which seems to have impressed him the most". Then his Lordship added "That observation applies to this case as to that." In my opinion that observation also applies to this case as to those.
19. The principle of avoidance of conflict is nearly as important as the principle of res judicala. The principle is not as hard and fast as res judicata, but is nonetheless an equally serious principle. Whenever a conflict of decisions is sought to be brought about by a party, a heavy onus lies upon him to show that without such a conflicting decision, some unconscionable injustice would be done to him. Such onus the plaintiff in this case is unable to discharge at all, especially because he was present, or should have been present, in the reference proceeding. Further, the reference judgment has been acted upon now for nearly a decade.
20. The reference bench held that in spite of Pramatha being of Dayabhaga School, he could impress the property as H.U.F. along with his sons. Partha and Mandira were not named children of Pramatha Nath Talukdar in Ext. C, but still the said exhibit was not held to be invalid by reason of their non-inclusion. They did not raise this point before the reference Bench either, nor did any of them attempt to have an altered reference in case according to them, the question before, the Bench did not encompass all the issues.
21. If a decision is reached in a partition suit, as here, that the shares in 5, Sunny Park are different for tax purposes, than for the purposes of distribution amongst the parties inter se, it would create such a conflict of decisions as is calculated to bring the judicial process into disrepute. This is not to be permitted by a Court of law.
22. Whether on the principles analogous to those of res judicata or upon principles of estoppel, the parties herein are not to challenge or undermine the validity and effect of the decision reached in the tax reference.
23. If the above reasoning is correct, and I have no doubt in my mind that it is, it would end the suit there are (and) then. It would end the suit because Sanjay has already negotiated out of his rights and he has given evidence before me confirming the present absence of any share of his in the property in suit.
24. Yet the plaintiff chose to file the suit. Pramatha had made a will in India in June, 1977 which was probated in December, 1980. The will is part of Exhibit I herein. The surviving wife and sons Pramatha excepting Partha had several litigation as among them on the one hand and Partha on the other. This included the 50 cottah urban property at 5, Sunny Park, 37 bighas of country property at Narendrapur (there two being the cream of assets), a petrol pump and snack bar at New Alipore, moveables including those at 5 Sunny Park, shares of several companies like James Murry, Talukdar Law & Associates and Hindustan Building Society.
25. The parties reached a broad spectrum settlement in December, 1980. Four suits were settled (Exhibits 20, 21, 22 & 23) including a suit for moveables by Partha filed in 1978 which included the moveables at 5, Sunny Park. The Terms of Settlement in the probate matter (part of Ex D), the two deeds of Release executed by Partha, (Exs. 17 and 3) and the list of immoveable property signed by Partha (Ex 18) are all on record. In the Deed of Release, which is Ext. 3, it was provided in relation to 5 Sunny Park that the release was in respect of whatever "in any wise relate io the said premises or any part and parcel, thereof and which now are or hereafter at all or may (be) in the custody, power or possession of the relcasor".
26. Having executed the Deed of Release in the broad terms expressed above, it was not open to Partha to try and reopen in this suit the speculative argument that Pramatha had transferred his right in 5, Sunny Park to a family of which Partha was a part, and accordingly, he should also get a share. The argument is speculative, in that, it seeks to uphold half of Ext. C or half of the decision given in the reference judgment, relating to the mention of the family in general, and it seeks at the same lime to demolish the other half of Ext. C which describes the same family in particular.
27. It was also mentioned in the Terms of Settlement dated 19th December, 1980 that the parties were entering into the same by way of a family settlement. The law is clear that Courts tend to uphold family arrangements made for peace and it would take a very strong case wherein a concluded family arrangement is to be upset upon an adverse construction of a deed. See , ; : . In the instant case, the Deed of Release is clearly in favour of the absolute release for Meena and her two sons, and, therefore, the application of the settled legal principle so as not to upset family arrangement is not even strictly necessary. The suit, as I say, should never have been filed.
28. The suit is a partition suit and even if it were to succeed, no effective decree could be passed without an appropriate claim for possession. That claim is not made in the plaint. It is understandably not made because the plaint was filed with Court-fees of Rs. 27/- only. A claim for possession would require payment of ad-valorem Court Fees on the valuation of Rs.25,00,150/- put by the piaintiff. See . However, the question is not one of Court-fees alone. Just as, a declaratory suit without consequential reliefs is bound to fail in law so also is a partition suit bound to fail in law unless the plaintiff claims for possession if he is out of it. See ILR 54 Cal 524 (529) and 12 CWN 37 (Pp. 40, 41). Admittedly, Partha was out of that possession from 5, Sunny Park at the date of suit (1987). The suit is, therefore, bad on this count also.
29. To crown it all, the futility of Partha's attempts is shown by this, that even if Ex C were to fail totally, and even if Pramatha is to be held as absolute private owner of 5, Sunny Park at the date of his death, even then Partha would get none of it, because by the third clause of his will (which was duly probated in 1980) Pramatha gave ownership to Meena, Ranjit and Sanjit with only residence rights to Partha and Sanjay. A partition suit cannot lie at the instance of a mere residential right-holder for life. Even that residence right Partha has released. Indeed, I hope I shall not be construed as uncharitable if I cannot help making the comment that the legal advisors of Partha have been more courageous than wise.
30. Partha tried to found his unsustainable case of half supporting Ex C on the fact that he was joint with his father at least up to April 1969. Apparently out of abundant caution, Meena argued that even there, Pramatha must, in law, be taken to have separated from Partha by the very signing of Ex C, which was at least Pramatha's own unequivocal expression of intention to separate.
31. Even if Pramatha did not show the document to Partha, yet Partha admitted in an affidavit in his moveable suit (Ex 4, Para 3) that Pramatha had told him of the 'formation' of the H.U.F.
32. It was also argued by Meena, again apparently out of abundant caution, that Partha cannot take as a Dayabhaga son, because caparcenary between father and son does not exist at Dayabhaga. What is set out in f his judgment in the subsequent paragraphs 33 -- 37, on points of Hindu Law, is in my opinion not material to a proper decision of the case; these esoteric points were argued, which would more interest a theoretician than a practical lawyer, for whom Ex C, the reference judgment, the will of Pramatha and Partha's release arc enough material for a completely legal and just decision of this case.
33. It is certainly the law that in Dayabhaga School, which governed Pramatha, Co-parcenary of father and son is not recognised and the father takes during his lifetime an absolute ownership and disposing power over sell-acquired as well as ancestral property. See , , .
34. It is also true that a joint Hindu family is created by nature herself and religion, and who are co-parceners in that family is determined by law and not by the choice of the Karta. It is equally true that one member of a joint family cannot seperate from some and remain joint with others. See 1971 SC 1962 at 1967 (para 15). Also, the law permits a member to separate from a family by unilateral choice, and the separation becomes effective from the date of choice and not from the date of communication to the other members from whom the member has decided to separate. See . It is also the law that one could, without the formalities of stamping and registration, for all purposes including tax, at least before 31-12-69, blend property into Hindu undivided family hotchpot, or impress property with HUF character, even by oral declaration.
35. Again, in Mitakshara, where blending into family of father and son is also permitted, renunciation of property in favour of only one member of the family in form, is implied by the law to be so in favour of the entire family -- .
36. All the above can be substantiated by authorities. But taken together, they are not of any help to any argument of any party, unless one is prepared, either to hold contrary to the effect of the reference judgment, or to give a split validity to Ex C in the manner indicated above. Such a splitting, i.e., holding it valid for transfer to Dayabhaga HUF, and invalid for transfer to the described members, is both upholding and denouncing the same document in one breath. Again Ex C is an outstanding document with large scale legal effects, and its delivery up and cancellation must be asked for if one wants contrary declarations to be made. There are no such claims in this suit, and no evidence in that line.
37. The reference judgment is good as a decision amongst the parties, because if remains as the final pronouncement though it may be that the reference judgment is assailable in principle on a doctrine of precedent. After all weighty authorities have held that there is no co-parcenary possible between father and son in Dayabhaga, but the judgment allows such Dayabhaga transfer to be effective into a family with father and sons, and the wife, Meena who, by birth was a Mitakshara female. If the transfer is not a blending into H.U.F., the document of transfer would have to be stamped and registered like ordinary transfers. But the reference judgment, whether good in law or bad in law has become final. So, these questions should not today be differently decided, by freshly applying the law to the same subject matter, because it would mean that, say Meena, would have 1/5 share in the years following 1969 for tax purposes, and some other share, or no share, for the purpose of the civil courts. Such serious and glaring conflicts are avoided by judicial tribunals to preserve the dignity of the law in the eye of the party litigants in particular and the public in general.
38. I have said that even if Ex C fails totally, which it should not, after the reference judgment, even then Meena, Ranjit and Sanjit take full ownership of 5 Sunny Park under clause 3 of Pramatha's will, Partha and Sanjay having admittedly released their residence or other rights to 5, Sunny Park which they got under that clause.
39. The material parts of the said clause 3 are set out :
"I give..... 5 Sunny Park..... to.....
Meena..... Sanjit and Ranjit..... subject to the right of residence of..... Partha...... in a room a bath..... Sanjay will similarly have the right of residence..... in the event his right as a member of the Hindu undivided family is not established....."
40. The argument that under this clause, a part of a part devolves on Partha as on intestacy, since Pramatha's 1/5 share was not devided, as he sought to devise the whole house and not his 1/5 share only, is merely argumentative, such argument being without any comprehensible basis. If I devise a specific ring, and the ring is lost or converted into money during my lifetime, then the clause would fail upon the doctrine of ademption. See Ch. XVI of the Indian Succession Act, which enacted as statutory law, rules of construction evolved by English Courts of Equity. But if 1 devise a fleet of five cars, and only four of the cars are lost, the clause would take effect as to the fifth car, because by all rules of construction, one who desires to give the whole, desires to give also every part of the whole.
41. The 5th defendant had no pleading in this suit. She was permitted to participate through counsel and adduce evidence by the leave (or special order) of Court under Chapter XIV Rule 3 of the Original Side Rules. The 5th defendant cannot support the plaint because the plaint does not state that she has any share at all (para 11).
42. There is no other pleading which the 5th defendant is able to support.
43. Under these circumstances, the claim of the 5th defendant made from the box that she would take any share of any property if allotted to her is a supplication without substance.
44. In so far as the land and building at 5, Sunny Park are concerned, Ext. C prevents Partha and Mandira equally from claiming against the said declaration. So far as the movables are concerned, the same form part of Ext. C also and Mandira cannot claim against the said exhibit any part of the moveables just as she cannot claim any part of the real property.
45. As a last ditch argument, it was said that Mandira should be permitted to share as on intestacy the 1/5th share of movables at 5 Sunny Park which Pramatha had retained with himself. This was said because the will makes no mention of the moveables. Even such a claim of Mandira is not tenable, because in the 9th clause in the will of Pramatha, he has expressly said that he makes no provision for Mandira as she is happily married. No moveable goods, but the exclusion of Mandira, is specifically mentioned in the will. Thus, if the question of devolution of the goods arose, it would have to be held that those would descend as on intestacy amongst the heirs of Pramatha, with the exception of Mandira, whose exclusion is expressly made in the Will itself.
46. The case reported in ILR 4 Bombay page 537 relied upon for Mandira does not help, as in that case the Court came to the conclusion that by reason of the prior death of the sole devisee, the testator had in effect died intestate. The facts cannot be filled to this case. It was said that (the armchair principle) S. 74 of the Indian Succession Act, enjoining the giving of effect to the intentions of the testator, could not operate to give force to the. negative words of disheritance in the will, because the will was not even partially effectual. In our case, the will is very effectual. If the will is wholly ineffective and contains, only words of disinherison, then it seeks to alter the legal course of intestate succession and is therefore bad. But an effective will with such words of disinherison is to be interpreted as expression of intention to bequeath or not to bequeath to specific individuals; not giving effect to such intention denies the testator his complete rights of disposition over his own property.
47. The cases of ILR 13 Bom 61 and 39 CWN 1154 deal with questions of residue unprovided for in the Will. Determination of such a question might be important where there is a residuary bequest. There was no such residuary bequest to Mandira. Ss. 30, 103 and 108 of the Indian Succession Act relied upon for Mandira, are also in my opinion not of any assistance. Here is a case not of residuary request, but of expression of intention of exclusion of one heir on intestacy, namely Mandira, even from the residuary estate, if any. The taw does not invalidate such an expression in an otherwise valid will.
48. Again. Mandira was the 1st defendant in the movables suit instituted by Partha in 1978. The suit was comprised and dismissed in December 1980. The written terms are Ext. 20. Mandira is not a party to these terms.
49. That Mandira had any right to take any share in the goods was, in effect, disputed by the parties in December, 1980, when the settlement took place and the parties other than Mandira shared the goods amongst themselves. Mandira apparenlly stood by on the belief, correctly held, that she had no right under the Will and so she could not interfere. Now, in 1992 or even as on the date of this suit, i.e., in 1987, Mandira's claim to any moveables would be hopelessly barred by limitation as the right to moveables is to be claimed within three years. Various articles of the Limitation Act were referred to, but it is not necessary to refer to these in detail.
50. The case , of which headnote (b) was placed for Mandira, does not help her; it was said there to the effect that the accrual of a cause of action for separate sharing and partition arises upon denial of such right. This ease only shows that limitation would run against Mandira from December, 1980. Even by the residuary article applicable to suits not mentioned elsewhere in other articles, three years would run out with 1983. And, to repeat, Mandira has not yet a pleading to support her case, if any.
51. Under these circumstances, the suit is dismissed. The action, as I have said, is worthless and should never have been instituted. Because of the value of the property involved, the litigation has gone on for several weeks and a realistic estimate of costs has to be made. The plaintiff will pay and bear his own costs and pay costs of the first three defendants assessed at Rs. 1,00,000/-, the 4th and the 5th defendants will pay and bear their own costs. Needless to say, all interim orders passed in this suit perish immediately.
52. Order accordingly.