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IN THE HIGH COURT AT CALCUTTA
Jyotirindra Nath Hore, J.
Hiran Kumar Bhattacharjee
vs.
Smt. Prabhabati @ Sarojini Bhattacharjee & Ors.
SECOND APPEAL No. 1036 of 1974
Decided On : June 22, 1989
PARTITION SUIT - DAYABHAGA LAW - FAMILY ARRANGEMENT - VALIDITY - MORTGAGE - EXTINCTION OF RIGHT OF REDEMPTION - ADVERSE POSSESSION - LEGAL NECESSITY - SPECULATIVE TRANSACTIONS.
Fact of the Case:
Plaintiffs, claiming inheritance and purchases, filed a partition suit for two properties. The trial court granted a preliminary decree for partition, allotting the entire building on one property to the defendants, who were the heirs of Chandrakanta, the son of the common ancestor. The defendants appealed, arguing that a valid family arrangement gave Chandrakanta exclusive title to the property, and that even if there was no valid arrangement, the mortgage had been extinguished by limitation, and they had acquired title by adverse possession. The plaintiffs appealed, arguing that the family arrangement was invalid without a registered document, that the alleged relinquishment of the right of redemption was also invalid without a registered document, and that the sale by one of the co-sharers was for legal necessity and binding on the reversioners.
Finding of the Court:
The court held that the alleged family arrangement was invalid under the Dayabhaga law, as the father was the absolute owner of the property and the sons had no right to it during his lifetime. The court also held that the alleged relinquishment of the right of redemption was invalid without a registered document, as the right to redeem can only be extinguished by acts of parties or by a decree of a court. However, the court found that Chandrakanta and his heirs had acquired indefeasible title to the property by continuous adverse possession for about 50 years. The court also held that the sale by one of the co-sharers was not for legal necessity and was not binding on the reversioners, and that the four Kobalas obtained by the plaintiffs from co-sharers in quick succession were speculative Kobalas to bolster up a false claim to the property.
Issues: 1. Whether the alleged family arrangement was valid under the Dayabhaga law? 2. Whether the alleged relinquishment of the right of redemption was valid without a registered document? 3. Whether Chandrakanta and his heirs had acquired indefeasible title to the property by continuous adverse possession? 4. Whether the sale by one of the co-sharers was for legal necessity and binding on the reversioners? 5. Whether the four Kobalas obtained by the plaintiffs from co-sharers in quick succession were speculative Kobalas?
Ratio Decidendi: 1. A family arrangement is based on the assumption of antecedent title in the parties, and no conveyance is required to pass the title. However, in the present case, the parties were governed by the Dayabhaga law, under which the father was the absolute owner of the property and the sons had no right to it during his lifetime. Therefore, the alleged family arrangement was invalid as it was not a conveyance of title. 2. The right to redeem a mortgage can only be extinguished by acts of parties or by a decree of a court. In the present case, there was no registered document evidencing the relinquishment of the right of redemption. Therefore, the alleged relinquishment was invalid. 3. Chandrakanta and his heirs had been in exclusive possession of the property for about 50 years, claiming absolute title. The plaintiffs had not sought to redeem the mortgage or claim any title or possession in respect of the property during this time. Therefore, Chandrakanta and his heirs had acquired indefeasible title to the property by adverse possession. 4. The sale by one of the co-sharers was not for legal necessity and was not binding on the reversioners. There was no independent evidence of legal necessity, and the recitals in the deed of sale were not sufficient to prove the existence of necessity. 5. The four Kobalas obtained by the plaintiffs from co-sharers in quick succession were speculative Kobalas to bolster up a false claim to the property.
Final Decision: The appeal was dismissed, and the judgment and decree of the lower appellate court were confirmed.
This is an appeal against the judgment and decree passed by the learned Additional District Judge, 2nd Court at Alipore in Title Appeal no. 272 of 1973 setting aside the judgment and preliminary decree passed by the learned Subordinate Judge, 7th Court, Alipore in Title Suit no. 61 of 1962 with regard to the property described in item no. (i) of schedule 'Ka' of the plaint and modifying the preliminary decree with regard to the property described in item no. (ii) of the schedule ‘Ka’ of the plaint.
2. The plaintiff/appellants filed the suit for partition claiming 7 annas 1 gandas 1 kara 1 kranti share partly by inheritance and partly by 4 purchases from 4 co-sharers.
3. In the plaint originally there were two schedules of properties-'Ka' schedule relating to khas lands and 'kha' schedule relating to tenanted lands. In the 'ku' schedule there were three items: (i) Dag no. 846 of C.S. Khatian no. 597 in Mouja Rajpore within the local municipality having an area of 52 acres with a building on it, (ii) Dag no. 508 of C.S. Khatian no. 758 in the same Mouza measuring 14 acre with mud huts opposite item no. 1 intervened by a road and (iii) Dag no. 69 of C.S. Khatian no. 696 in the same Mouza measuring 1.82 acre which was a garden with trees and under the direction of the Hon'ble High Court given in the judgment on 16.12.70, item no. (iii) of schedule 'Ka' and the entire schedule 'Kha' were deleted from the plaint schedule and the suit thereafter was confined to item nos. (i) and (ii) of schedule 'Ka' only but the bone of contention, between the parties is with regard to item no. 1 of schedule ‘Ka’of the plaint.
4. The plaintiff's case was that the suit properties originally belonged to Gurudas Bhattacharjee, common ancestor of the parties. Gurudas had five sons-Digambar, Chandrakanta, Jadunath, Asutosh and Jogendranath. The eldest son Digambar predeceased the father while the second son Chandrakanta was unheard of since 1899 Gurudas died at the ripe old age of 97/98 years in the early part of the century. The plaintiffs and defendants nos. 1 and 2 are the grandsons of Digambar. In quick succession within a span of only 36 days between the 19.4.46 and 24.5.46, the two plaintiffs obtained four sale deeds from Shibchandra, father of the defendant no. 5, Lalbehari, father of defendant no. 7, Kalidasi, widow of Surendra and Harendra and Dwijendra, defendant nos. 1 and 2. The plaintiffs claimed 53/120 share-1/10 share by inheritance through Digambar. 1/10 by purchase from Shibchandra, 1/16 by purchase from Lalbehari, 1/10 by purchase from Kalidasi, 1/10 by purchase from Harendra and Dwijendra and 1/40 by inheritance from Jogendra. At the time of the first trial, the plaintiffs abandoned the claim to 1/40 share by inheritance from Jogendra and since then the plaintiffs confined their claim to 5/12 share asserting that the suit property had never been partitioned by metes and bounds amongst the co-sharers and their joint possession had become inconvenient because of erroneous recording of shares in the C.S. Khatians and that the plaintiff demand for partition out of court had been turned down by the defendant no. 3.
5. Defendant nos. 8 to 12, the five sons of Haripada, son of Asutosh, flied a written statement supporting the plaintiffs case. The suit was contested by defendant no. 3, Bidhubhusan, the sole surviving son of Chandrakanta. He did not claim any interest in item no. (ii) of schedule 'Ka' but confined his claim only to item nos. (i) and (iii) of schedule 'Ka'. As already stated earlier item no. (iii) has since been deleted. The defence case was that Gurudas and his other four sons lived in poverty while Chandrakanta lived in affluence. He worked in a Sailors' Home in Calcutta and earned a handsome income. He used to send money to his father, Gurudas for acquisition of property in the village for him but the father purchased the land in item no. I of schedule 'Ka' with the money of Chandrakanta in his own name. The feeling betw
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