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2014 Supreme(Cal) 28
High Court of Judicature at Calcutta
SUDIP AHLUWALIA, J.
Sibani Das
Versus
Atghara Noapara Baroary Puja Committee & Others
C.O. No. 2377 of 2012 (Appellate Side)
Decided On : 21-01-2014
For the Petitioner:Siva Prosad Ghosh, Advocate.
For the Opposite Parties:Tapas Kr. Chatterjee, Advocates.
A suit against an unregistered body is maintainable if the plaintiff seeks to assert his own right, title, and interest in respect of the property allegedly settled through a dubious Registered Trust Deed by an unregistered body.
Headnote:
MAINTAINABILITY OF SUIT - SUIT AGAINST UNREGISTERED BODY - REGISTRATION OF SOCIETY ACT - WHETHER SUIT AGAINST AN UNREGISTERED BODY IS MAINTAINABLE - DISTINCTION BETWEEN SUIT BY AND AGAINST AN UNREGISTERED BODY - RATIO OF DECISIONS IN GANDHABANIK MAHASABHA & USHA RANI KUNDU CASES INAPPLICABLE - SUIT MAINTAINABLE AGAINST OTHER DEFENDANTS EVEN IF NOT AGAINST UNREGISTERED BODY - OR. I, R. 9 & OR. I, R. 10(2) OF THE C.P CODE - SUIT NOT TO FAIL DUE TO MIS-JOINDER OF UNNECESSARY PARTY - IMPOUNDED JUDGMENT SET ASIDE - SUIT HELD MAINTAINABLE.
Fact of the Case:
Plaintiff filed a suit claiming 1/4th share in the disputed property, alleging that her father was the sole owner and after his death, his wife and three daughters inherited the property in equal shares, but the records were wrongly drawn up in the name of the wife alone, who executed a purported Deed of Trust in favor of the defendants. The Trial Court dismissed the suit as non-maintainable as it was filed against an unregistered society, and the Appellate Court upheld the decision. The plaintiff filed a revisional application against the impugned judgment.
Finding of the Court:
The High Court held that the suit was maintainable as it was not only against an unregistered body but also against three other specific defendants. The ratio of decisions in Gandhabanik Mahasabha & Usha Rani Kundu cases was inapplicable as in those cases the claims were filed on behalf of and not against an unregistered body. The fact of the defendant No. 1 being unregistered would only strengthen the plaintiff’s claim regarding the same being a sham entity, instead of having the opposite effect of rendering her suit non-maintainable. The suit was not to fail due to mis-joinder of an unnecessary party.
Issues: Whether a suit against an unregistered body is maintainable?
Ratio Decidendi: The maintainability of a suit against an unregistered body depends on the nature of the claim made by the plaintiff. If the plaintiff seeks to assert his own right, title, and interest in respect of the property allegedly settled through a dubious Registered Trust Deed by an unregistered body, the suit is maintainable. The ratio of decisions in Gandhabanik Mahasabha & Usha Rani Kundu cases, where the claims were filed on behalf of and not against an unregistered body, is inapplicable. The fact of the defendant No. 1 being unregistered would only strengthen the plaintiff’s claim regarding the same being a sham entity, instead of having the opposite effect of rendering her suit non-maintainable. A suit does not fail due to mis-joinder of an unnecessary party.
Final Decision: The impugned judgment was set aside, and the suit was held maintainable. The Trial Court was directed to complete the trial of the original Title Suit in accordance with law as expeditiously as possible.
Sudip Ahluwalia, J.
1. This Revisional Application is directed against the Judgment passed by the Ld. Additional District & Sessions Judge, 5th Court, Barasat in Title Appeal No. 67 of 2011 of the said Court on 27.04.2012.
2. In the impugned Judgment the Ld. Additional District Judge had been pleased to dismiss the appeal preferred by the petitioner, and had upheld an earlier Order passed by the Ld. Civil Judge (Junior Division) First Court at Barasat in Title Suit No. 250 of 2008 of the said Court, whereby the Plaint filed by the petitioner as Plaintiff had been rejected under Or. VII, R. 11 of the C.P Code.
3. The background of the matter is that the petitioner filed the suit in the Trial Court by claiming that her father Sri Jiban Krishna Mondal was the sole owner of certain lands in Mouja Noapara as described in Para-1 of the plaint. After his death, his wife Jamunabala Mondal and three daughters including the petitioner/plaintiff inherited said property in equal shares, but the Records were wrongly drawn up in the name of Smt. Jamunabala Mondal alone.
4. Taking advantage of such erroneous Record of Rights the defendants by exercising some undue influence and misrepresentation of facts upon Jamunabala Mondal made her to execute a purported Deed of Trust which was executed and registered on 08.12.1992, the full particulars of which Trust Deed have been described in Schedule-B to the Plaint. Thereafter the Rajarhat Megacity Project acquired some portion of the said property while the remaining lands are in possession of the defendants and the plaintiff. Further contention of the petitioner is that the alleged Deed of Trust imposed certain obligations upon the Trustees which were never complied with by them. In any event, she further contends that the settler Jamunabala Mondal herself had no Right and/or capacity to dispose off the entire property by way of Trust or Sale, or to transfer it in any other manner, since she had her individual Right only in 1/4th share of the same. The petitioner later came to know that the defendants/OPs contacted some Company to install a hoarding on the Suit property which has been described in Schedule-A to the original plaint. The petitioner requested them to desist from doing so, but they paid no heed. So, the petitioner filed the Suit for declaration of her 1/4th share in the disputed property, apart from separate declarations that the alleged Deed of Trust was collusive and did not create any Rights in favour of the defendants, and also for a permanent injunction to restrain them and their agents from letting out any part or portion of the said property, or from installing any hoarding, or changing the nature of the same.
5. On behalf of the defendant No. 1 which filed its Written Statement denying all the material allegations made in the plaint, a separate application was also filed, praying for dismissal of the Suit on the ground that the “Atghara Noapara Barowari Puja Committee” is an Unregistered Body against which the Suit is not Maintainable under provisions of the Societies Registration Act. It was further contented in the said application that the petitioner was not entitled to any inheritance in respect of the disputed properties as per prevail Hindu Succession Act, on account of which also the suit was not maintainable.
6. In allowing such petition of the defendant/OP the Ld. Trial Court vide its Order No. 26 dated 10.05.2011 dismissed the suit by holding it non-maintainable in view of the fact that it had been filed against an Unregistered Society. But the Trial Court did not make any observation on the other assertion that the plaintiff/petitioner was not entitled to inherit any share in the suit property due to any bar on account of provisions of the Hindu Succession Act.
7. Such decision of the Trial Court was upheld by the Ld. Appellate Court which also held that in as much as the defendant No. 1 was an unregistered society, so no Suit against it was maintainable in view
