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1981 Supreme(Cal) 329
High Court Of Calcutta
P. K. BANERJI, B. N. MAITRA
MAHABIR SAHA - Appellant
Versus
HARIPADA SAHA - Respondent
A. F. O. D. 622 Of 1969
Decided On : 08/24/1981
AMARESH BHATTACHARJI, ANILANANDA MUKHERJI, BASANTA KR.DUTTA, RAM MOHAN BHATTACHARJI, RATHINDRA PRASANNA SANYAL
An admission made by a party is a substantive piece of evidence and can be used against that party, even if the party is not confronted with the statement.
Headnote:
PARTITION - HINDU LAW - JOINT FAMILY - MINOR - LEASE - EXECUTION OF LEASE BY MINOR'S MOTHER - WHETHER BINDING ON MINOR - REGISTRATION ACT, S. 17 (1) (C), (2) (XI) - TRANSFER OF PROPERTY ACT, S. 118 - ADMISSION - PROBATIVE VALUE.
Fact of the Case:
The plaintiffs, Haripada and Suhasini Saha, filed a suit for partition of a property in Dum Dum, Calcutta, claiming an 8 annas share in the property. They alleged that the disputed property was originally owned by their grandfather, Gopal Chandra Saha, who died in 1928 leaving behind his son Haralal and grandson Mahabir (defendant No. 1). After the death of Haralal in 1947, the plaintiffs and defendant No. 1 migrated to West Bengal and made an arrangement with the heirs of Abdul Sovan Khan to exchange their Dacca property for the Dum Dum property. A power of attorney was executed in favor of the Muslim co-owners, and the plaintiffs and defendant No. 1 executed a power of attorney in favor of defendant No. 1. In September 1950, the parties delivered possession of the respective properties, and defendant No. 1 realized the rents of the disputed property on his behalf and on behalf of the plaintiffs. On November 26, 1956, a document of lease was executed regarding the disputed property, reciting that the plaintiffs had only a 1/3rd share and Mahabir had a 2/3rd share therein. The plaintiffs alleged that the document of lease was obtained by fraud and collusion, and that they had in fact acquired an 8 annas share in the property.
Finding of the Court:
The trial court found that the plaintiffs' version was more probable and passed a decree in a preliminary form giving a direction for necessary accounts. The defendant No. 1 appealed.
Issues: 1. Whether the document of lease, Ext. 2, is binding on the plaintiffs? 2. Whether the plaintiffs are entitled to an 8 annas share in the disputed property?
Ratio Decidendi: 1. The court held that the document of lease, Ext. 2, is binding on the plaintiffs. The court noted that there was no averment that the document of lease is not binding on the plaintiffs, and that the Muslim co-sharers of the Dacca properties have not been made parties to the suit. The court also noted that the plaintiffs did not make an appropriate prayer that such document of lease was obtained by practising fraud or collusion. 2. The court held that the plaintiffs are not entitled to an 8 annas share in the disputed property. The court found that the plaintiffs had admitted in the document of lease that they had only a 1/3rd share in the property, and that this admission was not proved to be erroneous. The court also noted that the plaintiffs had been paying 1/3rd share towards cess and taxes for the last 10 years, which showed that they had accepted the terms of the document of lease.
Final Decision: The appeal was allowed. The court declared that the plaintiffs and the defendant No. 1 have 1/3rd share and 2/3rds share respectively in the disputed property subject to the right of residence of defendant No. 2 with respect to two rooms allotted to her, as well as her right to get Rs. 6 per mensem for her maintenance out of the income of the property for her life.
( 1 ) THE plaintiffs allege that the disputed property originally belonged to one Abdul Sobhan Khan and after his death that property was acquired by many persons. Gopal Chandra Saha was the father of defendant No. 1, Maha-bir, and grandfather of plaintiff No. 1. In 1928, Gopal expired leaving Mahabir, Haralal (son) and one Milan Bala, defendant No. 2, who is the widow of his predeceased son, Krishnalal Saha. Haralal died in 1354 B. S. leaving his widow and son (plaintiff No. 1), Haripada Saha, Gopal Chandra was the owner of premises No. 55, Subal Das Road, 35, Nawabgunj Road, 50/1, Subal Das Road and 47, Nawabgunj Das Road within the Dacca Municipality. Since Milan Bala was not an heir of Gopal Chandra, he made provision for her maintenance by making a gift of 2 rooms of his residential house for her and also providing for a sum of Rs. 6 per month for her maintenance. After partition of Bengal the plaintiffs, defendant No. 1 and defendant No. 2 migrated to West Bengal. Defendant No. 1 was the Karta of the Hindu joint family. An arrangement was made with the heirs of Abdul Sovan Khan that an exchange would be made. The valuation of the Dacca property was assessed at Rs. 17,000 and of the Dum Dum property in Calcutta at Rs. 22,000. Powers of Attorney were executed. The plaintiffs and defendant No. 1 executed a power of Attorney in favour of the Muslim co-owners. The latter also executed a power of Attorney in favour of defendant No. 1 because the plaintiff No. 1' was a minor and plaintiff No. 2 an illiterate woman. In September, 1950, the parties delivered possession of the respective properties in terms of the power of Attorney. Then defendant No. 1 realised the rents of the disputed property on his behalf and on behalf of the plaintiffs. Then on the 26th Nov. 1956, a document of lease was executed regarding the disputed property at 23/1/b, Dum Dum Road, Calcutta. Since the plaintiff No. 1 was then a minor and his mother an illiterate pardanasin woman, they had to depend entirely on Mahabir in the matter of execution of the lease The said plaintiff and defendant No. 1 had moiety share in the Dacca property and consequently they acquired 1/2 share each in the Calcutta property on the footing of the document of such lease. It appears that taking advantage of tha minority of the plaintiff No. 1 and illiteracy of the plaintiff No. 2, Haripada committed fraud and it was recited in the Deed of Lease that the plaintiffs had only l/3rd share and Mahabir had 2/3rd share therein and sum of Rs. 5000 had been paid by him from his own fund. In fact, Mahabir had no much money. That sum was paid by him from the profits of the joint property. The plaintiffs experienced difficulty and they asked for partition. But Mahabir did not comply with the demand. Hence the suit for partition on the allegation that the plaintiffs had 8 annas share in the property in question.
( 2 ) DEFENDANT No. 2 Milan Bala filed a written statement supporting the plaintiff's assertions.
( 3 ) DEFENDANT No. 1 filed a written statement denying the plaintiffs' allegations. His case is that after the death of Gopal Chandra, Haralal sold his undivided 1/2 share in the premises No. 50, Subal Das Road to a stranger. Haralal also mortgaged premises No. 55, Subal Das Road for Rs. 1000. Defendant No. 1 paid that debt and obtained the deed of mortgage from the mortgagee. Hence Haralal had the liability to pay this dues. After that arrangement for exchange was made, defendant No. 1 spent more than Rupees 4000 from his personal fund. He also paid Rs. 5000 in cash to the Muslim co-owners when the aforesaid deed of lease was finally executed.
( 4 ) THE learned Subordinate Judge believed the plaintiffs' version and passed a decree in a preliminary form giving a direction for necessary accounts. This appeal is by the defendant No. 1.
( 5 ) IT has been contended on behalf of the appellants that the deed of lease, Ext. 2, is binding on the plaintiffs and also on the
