Back
HIGH COURT OF CALCUTTA
P. N. MUKHERJEE, R. P. MOOKERJEE
PANKAJMI DEBI - Appellant
Versus
SUDHIR DUTTA - Respondent
A. F. O. D. 79 Of 1950
Decided On : FEBRUARY 02, 1956
TITLE TO LAND - DEED OF RELEASE - ADMISSION OF NO TITLE - REBUTTAL OF PRESUMPTION OF SETTLEMENT RECORD - RELEVANCE AND SUFFICIENCY - REFUND OF PURCHASE MONEY - PROVISION IN KOBAIA - FULL PAYMENT - INTEREST OR DAMAGES - ORDER 41, RULE 33, CIVIL P. C. - APPLICABILITY.
Fact of the Case:
Plaintiff claimed title to a 7 annas 6 pies share of the suit properties through the branch of Abdulla, one of the two brothers who left behind two sons, Tamijuddin and Menajuddin. Plaintiff purchased 7-1/2 annas of the suit properties from defendants 10 and 11, who were the legal representatives of Menajuddin. Defendants 15 to 22 claimed to have purchased 16 annas of the suit properties from the legal representatives of Efajuddin, the son of the other brother Enayetulla. Mokshed, representing Enayetulla's branch through Ajimannessa (junior), also claimed title to a portion of the suit properties.
Finding of the Court:
The court held that the deed of release (Ex. D) executed by the plaintiff's vendors, Tamijuddin and Abdul Rashid, along with the latter's mother Nurjan, in favor of Efajuddin's branch, was sufficient to rebut the presumption of the settlement record (Ex. 2) recording their names in respect of the suit properties. The court found that the admission in the deed of release that the executants thereof had no title or possession in the suit properties and that the settlement entry to the contrary was incorrect was clearly relevant and sufficient to rebut the presumption of the settlement record. The court also held that the plaintiff was entitled to a refund of the purchase money of Rs. 8,700/- with interest or damages, as provided in the kobala (Ex. 3), since the title conveyed thereby was found to be defective.
Issues: 1. Whether the deed of release (Ex. D) was sufficient to rebut the presumption of the settlement record (Ex. 2) recording the names of the plaintiff's vendors in respect of the suit properties? 2. Whether the plaintiff was entitled to a refund of the purchase money of Rs. 8,700/- with interest or damages, as provided in the kobala (Ex. 3), since the title conveyed thereby was found to be defective?
Ratio Decidendi: 1. The court held that the deed of release (Ex. D) was sufficient to rebut the presumption of the settlement record (Ex. 2) recording the names of the plaintiff's vendors in respect of the suit properties. The court reasoned that the admission in the deed of release that the executants thereof had no title or possession in the suit properties and that the settlement entry to the contrary was incorrect was clearly relevant and sufficient to rebut the presumption of the settlement record. The court distinguished the present case from the cases of Jadu Nath Poddar v. Rup Lal, Poddar, Dharam Chand Boid v. Monji Shahu, and Mathura Mohan Saha v. Ram Kumar Saha, where it was held that a mere deed of release would not defeat or extinguish title to land, on the ground that in those cases there was some title vested in the executant or executants of the deed of release, whereas in the present case, there was no proof that the executants of the deed of release (Ex. D) had ever any title to the suit properties. 2. The court held that the plaintiff was entitled to a refund of the purchase money of Rs. 8,700/- with interest or damages, as provided in the kobala (Ex. 3), since the title conveyed thereby was found to be defective. The court found that there was full payment of the entire consideration money of Rs. 8,700/- of the kobala, Ex, 3, by the plaintiff to his vendors, defendants 10 and 11 and that the plaintiff is entitled, in the events which have happened, to a refund of the said amount.
Final Decision: The court allowed the appeal, set aside the preliminary decree for partition and the declaration of title made in the plaintiff's favor, and dismissed the plaintiff's claim for partition and title to the suit properties. However, the court granted the plaintiff a decree for a sum of Rs. 9,000.00 against defendants 10 and 11 on his alternative claim for refund of the purchase money and damages. The court also awarded costs to the plaintiff against defendants 10 and 11 in the Court below and to defendants 15 to 22 in the Court below and half the paper book costs incurred by them in this Court from the plaintiff respondent.
( 1 ) THIS appeal is by defendants 15 to 22 and it arises out of a suit for declaration of title and partition; in the alternative, for recovery of a sum of Rs. 9,000/- by way of refund of purchase money and damages from defendants 10 and 11. The learned Additional Subordinate Judge, 6th Court, Alipore, who tried the suit has passed a preliminary decree for partition accepting the plaintiff's claim of title to the extent of a 7 annas 6 pies share of the disputed properties. He has dismissed the plaintiff's alternative claim for recovery of the purchase money and damages.
( 2 ) DEFENDANTS 15 to 22, who contested the plaintiff's title to the suit properties and set up 16 annas' title in themselves, have preferred the present appeal.
( 3 ) THE facts giving rise to the present litigation may be shortly stated as follows: (4) One Rahamatulla left two sons, Enayetulla and Abdulla. Enayetulla died leaving two widows, Ajimannessa (senior) and Ajimannessa (junior), a sou Efajuddin and a daughter Kadabanu by the senior wife Ajmannessa Bibi, and a sun Mokshed and three daughters, Humidan, Sahidan and Rahidan, by the junior wife Ajimannessa Bibi. Kadabanu, Hamidan and Sahidan are dead, so also is Ajimannessa (senior), as also Elajuddin. The latter died leaving two sons Arshed and Nauser and three daughters Keshida, Mokshuda and Rashida. These sons and daughters of Elajuddin are defendants 1 to 5 of the present suit and defendants 15 to 22 claim to have purchased the suit properties in 16 annas from them.
( 4 ) OF the branch of Enayetulla through Ajimannessa (junior), Hamidan and Sahidan are dead and Mokshed is defendant 6 and Rahidan defendant 7.
( 5 ) THE plaintiff claims title to a 7 annas 6 pies share of the suit properties through the branch of Abdulla. Abdulla left two sons, Tamijuddin Molla and Menajuddin Molla. Tamijuddin is defendant 10. Menajuddin is dead and he died leaving a widow Nurjan who was defendant 9 and a son Abdur Rashid alias Abdul Rashid Moola who is defendant 11. These two defendants 10 and 11 are the vendors of the present plaintiff.
( 6 ) DURING the pendency of the suit, Menajuddin's widow Nurjan, defendant 9, died and also Nauser defendant 2, the latter leaving a widow Sayrajan and a son Ahmed Ali and a daughter Foyzannessa, who were made respectively defendants 12, 13 and 14 in the suit.
( 7 ) THE plaintiff claims to have purchased 7-1/2 annas of the suit properties from defendants 10 and 11 by a kobala, dated 27-8-1947, which is Ex. 3 in the case. Defendants 15 to 22 claim to have purchased 16 annas of the suit properties by four koba-las, viz. , Exs. B to B-3, dated 24-7-1940 (Ex. B1), 16-4-1942 (Ex. B), 21-11-1942 (Ex. B3) and 18-5-1943 (Ex. B2), from the several defendants, defendants 1 to 5, who were Efajuddin's legal representatives at the time. Mokshed claims title to a portion of the suit properties upon the allegation that the said properties belonged to Enavetulla and, upon his death, they devolved upon the two branches of his heirs through his two widows Ajimannessa (senior) and Ajimannessa (junior)
( 8 ) ACCORDING to the plaintiff, the suit properties were the ancestral properties of the two brothers Enayetulla and Abdulla and, from two members (defendants 10 and 11 of Abdulla's branch, as already stated, the plaintiff purchased their 7 annas 6 pies share of the same.
( 9 ) IN support of his case the plaintiff primarily relied upon the settlement records. In the relevant settlement khatian, which is Ex. 2 in the present case, the suit properties were recorded in the names of Efajuddin, Ajimannessa, Mokshed, Rahidan, Tamijuddin, Abdur Rashid and Nurjan and the total share of Tamijuddin and Abdur Rashid was Stated to be 7 annas 10 gandas that is, 7-1/2 annas which the plaintiff claims to have purchased by his kobala Ex. 3. Tt is on this basis that the present suit was instituted by the plaintiff for partition of his 7-1/2 annas or 7 annas 6 pies share of the suit properties
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
