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IN THE HIGH COURT AT CALCUTTA
SISIR KUMAR MUKHERJEA & AJAY KUMAR BASU, JJ.
Sm. Tara Sundari Sen - Appellant
Versus
Pasupati Kumar Banerjee & Ors. – Respondents
Appeal no. 14 of 1968.
Decided on: September 24, 1973
Shantabala purchased premises No. 27B, Anath Deb Lane and 33, Raja Manindra Road with her own Stridhan money. Nagendra Nath Banerjee, her husband, was a confirming party to the conveyance. The properties were not purchased by Shantabala as benamdar of her husband. Nagendra Nath Banerjee was not insane at the time of Shantabala's death. Sm. Tarasundari Sen, the purchaser of premises No. 33, Raja Manindra Road, did not make reasonable enquiries into Nagendra Nath Ganguly's title to the property and is not entitled to compensation for the improvements made by her. The suit is not bad for misjoinder of parties or causes of action. The suit is not barred by limitation. The plaintiff is entitled to the declarations he has asked for.
Fact of the Case:
Shantabala purchased premises No. 27B, Anath Deb Lane and 33, Raja Manindra Road with her own Stridhan money. Nagendra Nath Banerjee, her husband, was a confirming party to the conveyance. The properties were not purchased by Shantabala as benamdar of her husband. Nagendra Nath Banerjee was not insane at the time of Shantabala's death. Sm. Tarasundari Sen, the purchaser of premises No. 33, Raja Manindra Road, did not make reasonable enquiries into Nagendra Nath Ganguly's title to the property and is not entitled to compensation for the improvements made by her.
Finding of the Court:
The suit is not bad for misjoinder of parties or causes of action. The suit is not barred by limitation. The plaintiff is entitled to the declarations he has asked for.
Issues: 1. Is the suit bad for misjoinder of causes of action? 2. Did Shantabala Devi purchase the said premises No.27B, Anath Deb Lane and 33, Raja Manindra Road with her own Stridhan money? 3. Did the said premises No. 27B, Anath Deb Lane and 33, Raja Manindra Road, upon the death of Shantabala, devolve upon the brothers, Negendra and Rajani? 4. Was Nagendra Nath Banerjee a lunatic during his life time and at the date of death of the said Shantabala ? 5. Are the defendants 1A, IB and IC entitled to the share of Rajani in the said two premises? 6. Was Nagendra Nath Ganguly the absolute owner of premises No. 27B, Anath Ded Lane and No. 33, Raja Manindra Road and Shantabala was his benamdar ? 7. Did Sm. Tara Sundari Sen purchase Premises No. 33, Raja Manindra Road for valuable consideration and without any notice or knowledge of any alleged claim of the plaintiff and of the defendant No.7? 8. Did the defendant Tara Sundari Sen make substantial additions, alterations and improvements in and to the said premises at an expense of Rs.22,000/- or any other sum after the purchase of the said property? If so, is she in any event entitled to the entire purchase money together with the said sum of Rs. 22,000/- or any part thereof utilised by her in making additions, alterations and improvements in and upon the said premises? 9. Has this Hon'ble Court jurisdiction to try the suit in respect of premises No. 27B, Anath Deb Lane and/or premises No. 33, Raja Manindra Road ? 10. Should leave granted under Clause 12 of the Letters Patent be revoked? 11. Is the suit barred under section 42 of the Specific Relief Act? 12. To what relief, if any, is the plaintiff entitled to ?
Ratio Decidendi: The plaintiff is entitled to the declarations he has asked for because although able to seek reliefs other than a mere declaration of title, he has omitted to do so. This is a defence under section 42 of the Specific Relief Act. The plaintiff has asked for three declarations, that is to say, that Shantabala was not the benamdar of Nagendra Nath Ganguly in respect of the premises mentioned in Schedule 'B' to the plaint, that the defendants Nos. 8 and 9 are trustees for and on behalf of the plaintiff and on behalf of defendants Nos. 1, 1A, 1B, 1C and 7, the heirs of Rajani Kanta Banerjee, and that the conveyance and/or transfer of the properties mentioned in paragraphs 8 and 9 of the plaint are void and inoperative. He has also prayed that the conveyance be delivered up for cancellation, It is not in dispute that the prayer for the third declaration is fully competent. It is not necessary to go into the question whether a negative declaration can be given. The plaintiff has asked for injunction restraining the defendants Nos. 8 and 9 from asserting any title to or interest in any of the properties mentioned in paragraphs 8 and 9 of the plaint. There are also prayers for partition and possession. These are the consequential reliefs which the plaintiff could ask for. He has asked for all these reliefs. In the case of (39) C. Mohammed Yunus v. Syed Unnissa, AIR 1961 SC 808 it was observed: That whether the further relief claimed in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. A suit for declaration with a consequential relief for injunction is not a suit for declaration simpliciter: it is a suit for declaration with further relief.
Final Decision: The decree passed by the learned Judge, is, therefore, affirmed and the appeal is dismissed. In the facts and circumstances of this case we direct that the appellant do pay half the plaintiff-respondent's costs of this appeal. All other parties will pay and bear their own costs.
Mukherjea, J.
This appeal is directed against a judgment and decree passed in a partition suit by S.K. Datta, J. on November 29, 1967.
2. One Bhuban Mohan Banerjee left two sons Ashutosh and Pramatha. Pramatha died intestate leaving his widow, Sm. Malatimala the defendant No.2, and several daughters. Ashutosh died intestate leaving three sons, Nilratan. Nagendra, Rajani and two daughters, Sm. Santabala and Dasimoni. Santabala married Nagendra Nath Ganguly. She died survived by her husband in September 1942 intestate and childless leaving some immovable properties, premises No. 33, Paikpara Raja Manindra Road and premises No. 27A, 27B and 27C, Anath Nath Deb Lane, Paikpara, of her brothers, Rajani and Nagendra Nath Banerjee were alive at the time of her death, Nilratan having predeceased her.
3. Ashutosh and Pramatha died seised and possessed of premises No. 5 Ganguly Lane, Calcutta.
4. Upon the death of Ashutosh, his interest in the said premises devolved on Nilratan Banerjee, Nagendra Nath Banerjee and Rajani Kanta Banerjee. Sm. Malatimala surrendered her interest in the said premises in favour of her daughters who in turn surrendered their interest in favour of their sons. The defendant No.7, Sm. Malatimala Debi, the wife of Nagendra Nath Banerjee, purchased by a deed dated the 25th July, 1953 the one-half. share in the said premises from the daughters' sons of the said Pramatha Nath Banerjee deceased. In the result, the defendant No.7, Sm. Malatimala Debi became entitled to one-half share in premises No. 5 Ganguli Lane by the said purchase.
5. Rajani died in 1955, while the present suit was pending. It is not in dispute that the defendant No.1, Sm. Rakhal Dasi Debi, the defendant No.1A, Chandi Charan, the defendant No. 1B Chanchal Kumar and the defendant No. 1C Chapal Kumar, the widow and sons of Rajadi are entitled to 1/24th share each in the said premises. The defendants Nos.3, 4, 5 and 6, Provat Kumar, Hara Kumar, Hari Kumar and Biswanath, sons and heirs of Nilratan who died in 1937, are entitled to 1/24to share each in the said premises. Pasupati, the son of Nagendra Nath Banerjee the plaintiff in the suit is entitled to a 1/12th share. Malatimala Debi, the widow of Nagendra Nalh Banerjee is entitled to 1/12th share as an heir of her husband apart from her one-half share in the said property which she acquired by purchase as stated hereinbefore. She has, therefore, a 7/12th share in the said property.
6. Santabala, a daughter of Ashutosh Banerjee, purchased premises No. 27A, 27B and 27C. Anath Nath Deb Lane and premises No.23, Paikpara Raja Manindra Road, Calcutta.
7. Nagendra Nath Banerjee died intestate on November 1, 1944 leaving him surviving his son Pasupali Kumar Banerjee, the plaintiff-respondent and his widow Malatimalil Debi, the defendant No.7 as his heirs and legal representatives'.
8. After the death of Santabala, Nagendra Nath Ganguly sold premises No. 27B, Anath Nath Deb Lane by an instrument dated the 8th February, 1946 to one Kanailal Chakraborty who in his turn sold the same by an instrument dated the 15th July, 1948 to Sm. Snehalata Debi, the defendant No.8. He also sold by an instrument dated the 25th September, 1947 premises No. 33. Raja Manindra Road to Sm. Tarasundari Sen, the defendant No.9. On the 27th November, 1948 Nagendra Nath Ganguly died. Letters of Administration in respect of the estate of Nagendra Nath Ganguly were granted to the defendant No.1, Rajani Kanta Banerjee since deceased, by the Alipore Court. The Rajani Kanta Banerjee died on 11th December, 1955 leaving the defendants Nos.1, 1A, 1B and 1C, his widow and sons respectively as his heirs and legal representatives.
9. By an order made by this Court in its testamentory and intestate jurisdiction the defendant No.1D, Sm. Kalyani Devi was appointed the Administratrix-ad-litem to the estate of Nagendra Nath Ganguly.
10. Pasupati Banerjee instituted the present suit in 1949 originally against Rajani Kanta Banerjee, Malatimala Devi, th
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