1979 Supreme(Cal) 26

Calcutta High Court
MRS. MONJULA BOSE, J.
Shyam Sundar Bhartia - Appellant
Versus
Gourishankar Bhartia - Respondents
Suit No. 1032 of 1959
Decided On : 2 February 1979

The sale deed was executed for legal necessity and was binding on the minor defendants. The suit was not barred by limitation and the plaintiffs were entitled to a decree for possession and mesne profits against all the defendants except the defendant Company and Shivshankar Bhartia who were admittedly not in possession and had been joined as pro forma defendants. The suit was not bad for non-joinder of the daughters of Jayadeyi Bhartia since deceased.

Headnote:

SALE DEED - EXECUTION - VALIDITY - LEGAL NECESSITY - BURDEN OF PROOF - PIOUS OBLIGATION OF HINDU SONS TO REPAY FATHER'S DEBTS - DOCTRINE OF PIETY - ALIENATION BY COPARCENER - RIGHTS OF COPARCENER - PARTITION - SUIT FOR POSSESSION - NON-JOINDER OF NECESSARY PARTIES - ABATEMENT OF SUIT - LIMITATION ACT (36 OF 1963), ART. 65.

Fact of the Case:

Suit for possession of 18 rooms in premises No. 75, Cotton Street, Calcutta. The case of the plaintiffs was that one Omkarmal Bhartia, the father of Gourishankar, Harishankar and Shivshankar Bhartia, the present defendants Nos. 1, 11, and 13 had an undivided half share in the said premises. Upon his death in July 1951, the said property devolved or passed by survivorship to his widow Jaydeyi Bhartia one of the original defendants since deceased, and his said three sons and several grandsons by his eldest son Gourishankar. On or about July 14, 1952, the defendant No. 1 for self and as Karta of a joint Hindu family consisting of himself, his sons, his brothers Harishankar, Shivshankar and his mother Jaydeyi Bhartia, for valuable consideration and for legal necessity and benefit of the joint family sold their undivided half share in the said premises to Messrs. Lionel Edwards Private Ltd., hereinafter referred to as the defendant company. It is further alleged that the defendant company on April 22nd, 1953, caused a suit being suit No. 1195 of 1953 to be instituted for partition of the said premises (Messrs. Lionel Edwards Pvt. Ltd. v. Sitaram Bhartia and Ors.) and a preliminary decree was passed therein. The Commissioner of Partition having found the premises incapable of being partitioned by metes and bounds in accordance with the shares declared, by a conveyance dated September 25, 1958, the defendant company conveyed its said share in the said premises to Sitaram Bhartia the original plaintiff No. 1 herein, for valuable consideration. Sitaram Bhartia, died intestate on February 25, 1964, and an his death his heirs and legal representatives along with the plaintiff No. 2 became the joint owners of the said premises. It is alleged that the defendant No. 1 for self and as Karta of his branch and the other defendants, except Shivshankar Bhartia and the defendant company are in wrongful occupation of 18 rooms in the said premises and in spite of demands have not vacated the same. No relief is claimed against Shivshankar and the defendant company who have been made pro forma parties to the proceedings.

Finding of the Court:

The court held that the sale deed was executed for legal necessity and was binding on the minor defendants. The court also held that the suit was not barred by limitation and that the plaintiffs were entitled to a decree for possession and mesne profits against all the defendants except the defendant Company and Shivshankar Bhartia who were admittedly not in possession and had been joined as pro forma defendants.

Issues: 1. Was the conveyance dated July 14, 1952 executed on the understanding and/or promise of Gopi Kishen Khemka and/or Lionel Edwards Ltd. as alleged in paragraph 3 of the written statement Gouri Shankar Bhartia and Hari Shankar Bhartia ? 2. Was the conveyance dated the 25th September, 1958 subject to the said arrangement or contract with Messrs. Lionel Edwards Ltd. as alleged in paragraph 5 of the written statement of Gouri Shankar Bhartia and Hari Shankar Bhartia ? 3. Is the conveyance dated the 14th July, 1952 not binding on the minor defendant No. 2 and the then minor defendants Nos. 3-10 as alleged in paragraph 3 of the voluntary statement filled on their behalf ? 4. Is the suit barred by limitation as against the added defendant No. 2 Anil Bhartia ? 5. Is the suit bad for non-joinder of the daughters of Jayadeyi Bhartia since deceased ? 6. To what relief, if any are the plaintiffs entitled ?

Ratio Decidendi: The court held that the sale deed was executed for legal necessity and was binding on the minor defendants. The court also held that the suit was not barred by limitation and that the plaintiffs were entitled to a decree for possession and mesne profits against all the defendants except the defendant Company and Shivshankar Bhartia who were admittedly not in possession and had been joined as pro forma defendants. The court further held that the suit was not bad for non-joinder of the daughters of Jayadeyi Bhartia since deceased.

Final Decision: Decree for possession in terms of prayer (b) of the plaint. Preliminary decree directing an enquiry for mesne profits from the date of institution of the suit until possession is delivered, against all the defendants except the defendant Company and Shivshankar Bhartia. Plaintiffs will also be entitled to interest and interim interest at 6% per annum on all sums from when the same be found due and payable by the defendants is possession as also the costs of the suit.