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2014 Supreme(Cal) 313
IN THE HIGH COURT AT CALCUTTA
Soumen Sen, J.
Subhas Chandra Sadhukhan & Ors.
Vs.
Sandha Rani Sadhukhan & Ors.
C.S.60 of 1987
Decided on : 19th June, 2014
Advocate Appeared:
For the plaintiffs : Mr. Aniruddha Mitra, Mr. Sukanta Paul
For the defendants : Mr. Bidyut Kr. Banerjee, Mr. D.P. Bhattacharya, Mr. B.K. Banerjee, Mr. Chirantan Dawn
A family settlement is not a transfer of property. The intention of the settlor is to bring about a family settlement.
Headnote:
PARTITION - SUIT FOR - MAINTAINABILITY - TRUST PROPERTIES - FAMILY SETTLEMENT - RES JUDICATA - VALIDITY OF WILL - CONSTRUCTION OF DOCUMENTS - VESTED INTEREST - CONTINGENT INTEREST - FAMILY ARRANGEMENT - SHARE OF PARTIES.
Fact of the Case:
The plaintiff has instituted the suit for partition of movable and immovable properties situated at 12A, 12B and 12C, Gobinda Sen Lane and 30, Keshab Sen Street, Calcutta (hereinafter referred to as “suit properties”). The plaintiff has also prayed for rendition of accounts and allotment of shares by metes and bounds.
Finding of the Court:
1. The suit is maintainable. 2. The properties are not trust properties. 3. The family settlement is valid and binding on the parties. 4. The Will is not valid and binding on the parties. 5. The Deed of Settlement and the consent decree passed in Suit No.584 of 1950 are valid and binding on the parties. 6. The legal heirs of Jogindra Nath became entitled to the enjoyment of the said properties after the death of Kamalabala. 7. The plaintiffs are entitled to partition of the property covered under the said Deed of Settlement.
Issues: 1. Is the suit maintainable? 2. Are the properties comprised in two Deeds of Settlement dated 10.03.1949 executed by Balai Chand Sadhukhan deceased, trust properties? 3. Are the plaintiffs entitled to claim partition of the suit property fully mentioned in paragraphs 6 and 12 of the plaint? 4. Are the plaintiffs entitled to file and maintain this suit, after the order dated 16.4.1951 passed in Suit No.584 of 1950 (Surendra Nath Sadhukhan & Ors. –Vs- Jogindra Nath Sadhukhan & Ors.) by Hon’ble Justice S.R. Dasgupta, on the basis of terms of settlement filed by the parties to the said suit? 5. Are the defendants liable to render accounts in respect of the suit properties? 6. Are the plaintiffs entitled to any relief in this suit?
Ratio Decidendi: 1. A family settlement is not a transfer of property. 2. The intention of the settlor is to bring about a family settlement. 3. The terms of settlement resulted in the compromise decree would clearly show that such compromise was arrived at in order to avoid disputes in the family. 4. The said terms of settlement has been acted upon. 5. In view of the aforesaid facts, the right of the plaintiffs to claim share in the properties cannot be denied.
Final Decision: Preliminary decree declaring the entitlement of shares of the parties in the properties to the extent as indicated below:- 1. Subhas Chandra Sadhukhan – Plaintiff No.1 (a) –1/12th Share 2. Ajay Kumar Sadhukhan – Plaintiff No.1(b) –1/12th Share 3. Smt. Jharna Paramanik -Plaintiff No.1(c) – 1/12th Share 4. Jayanta Sadhukhan - Plaintiff No.1(d) – 1/24th Share 4(a). Piyali Ghosh (Sadhukhan) - Plaintiff No.1(e) -1/24th Share 5. Smt. Jaya Sadhukhan - Plaintiff No.2 -1/9th Share 6. Smt. Rubi Das - Plaintiff No.3 -1/9th Share 1.7. Smt. Sandhya Rani Sadhukhan – Defendant No.1 – 1/9th Share 8.Gopal Chandra Sadhukhan - Defendant No.2 – 1/9th Share 2.9. Ram Prasad Adhikary - Defendant No.3 1/18th Share 9(a). Shrimanta Adhikary - Defendant No.3(a) 1/18th Share The defendants are directed to furnish accounts of rents, issues and profits in respect of the properties to the plaintiffs within two months from date. The parties are directed to make partition of the properties in suit in accordance with the respective shares declared by this preliminary decree amicably within two months from this date failing which either of the parties will be at liberty to move this Court for appointment of an advocate Commissioner to effect partition by metes and bounds.
Soumen Sen, J.:
The plaintiff has instituted the suit for partition of movable and immovable properties situated at 12A, 12B and 12C, Gobinda Sen Lane and 30, Keshab Sen Street, Calcutta (hereinafter referred to as “suit properties”). The plaintiff has also prayed for rendition of accounts and allotment of shares by metes and bounds.
The plaintiff No.1 series are the grand children of Jogindra Nath Sadhukhan. The plaintiff No.2 series are the great grand children of Jogindra Nath Sadhukhan. The defendant No.1 is one of the grand daughters of Jogindra Nath Sadhukhan and the defendant No.2 is one of the grandsons of Jogindra Nath Sadhukhan. The defendant No.3 is one of the grand children of Jogindra Nath. In fact, the present suit is between the legal heirs of the two daughters of Jogindra Nath against the legal heirs of the son of Jogindra Nath.
On or about 10th March, 1949, one Balai Chand Sadhukhan since deceased who is the common ancestor of all the parties in the suit, executed a Deed of Settlement which was registered with the Registrar of Assurance on 11th March, 1949. The deed of settlement, according to the plaintiff, provides that Balai Chand has created a trust of which he as the settlor made permanent provisions or arrangements for the benefit of himself during his lifetime and for benefit of his five sons and their respective heirs and for that purpose he appointed himself as the First Trustee in respect of the properties settled thereunder and transferred, conveyed, assigned and assured unto him or the person and/or persons who would act as Trustee or Trustees all the immovable properties forming part of the settlement.
The said Balai Chand Sadhukhan had five sons, namely, Surendra Nath Sadhukhan, Nagendra Nath Sadhukhan, Jitendra Nath Sadhukhan, Debendra Nath Sadhukhan and Jogindra Nath Sadhukhan. The Deed of Settlement made specific provisions in respect of the properties covered under the said trust for the respective use and benefit of the five sons and their respective heirs. At the time of execution of the Deed of Settlement, the wife and daughters of the said settlor were predeceased. The settlor died in or about 1950 and in terms of the said Deed of Settlement, the five sons of the setter became trustees respectively in respect of the allotments of the properties made in the said Deed of Settlement.
All the said five sons of the said settlor had died.
Debendra Nath Sadhukhan and his wife Smt. Usha Rani Sadhukhan died in the year 1992. Debendra Nath died issueless. Accordingly, the said property would devolve absolutely and forever upon the heirs of the said Jogindra Nath being the plaintiffs and the defendants. The remaining properties upon which the said Surendra Nath Sadhukhan and Jogindra Nath Sadhukhan, both deceased, respectively had life interest have absolutely and forever devolved upon the heirs of the said Jogindra Nath Sadhukhan being the parties to the suit by virtue of the said Deed of Settlement which are all actually the properties of which partition is claimed in this suit. The trust created in respect of the said properties under the Deed of Settlement have ceased upon the death of the wife of Jogindra Nath, namely, Smt. Kamalabala Sadhukhan. Kamalabala died in 1978, leaving her surviving two daughters Smt. Puspa Lata Sadhukhan, since deceased, and Smt. Ashalata Sadhukhan, since deceased and the said Brajo Mohan Sadhukhan, since deceased. Puspa Lata, Ashalata and Brajo Mohan, since deceased, ultimately inherited the said properties in equal share absolutely and forever. Amongst sons and daughters of Jogindra Nath Sadhukhan, Smt. Puspa Lata Sadhukhan died intestate in or about 1981 leaving her surviving two daughters. The plaintiff has claimed shares in the properties in the manner as indicated in Paragraph 10 of the Plaint which is stated below:-
1. Subhas Chandra Sadhukhan – Plaintiff No.1 (a) –1/12th Share
2. Ajay Kumar Sadhukhan – Plaintiff No.1(b) –1/12th Share
3. Smt. Jharna Pa
