JUDGMENT :

SOUMEN SEN, J.

1. The appeal and cross appeal are arising out of a preliminary decree passed in a partition suit filed by one Charan Kumar Chabria.

2. The subject matter of the partition suit is a property situated at 34/1Y, Ballygung Circular Road, Kolkata-700 019 morefully described in schedule ‘A’ of the plaint.

3. The property belongs to Charan Kumar Chabria and Shri Karan Chabria. Admittedly they were joint owners of the property in question each having 50% shares in the property until a deed of gift was executed in favour of defendant no. 1 and 2. The basis of the partition suit appears to be certain mis-declaration in the deed of gift executed by Karan Chabria in favour of defendant no. 1 and 2 exclusively allotting 1st floor in favour of defendant no. 1 and 2nd floor in favour of defendant no. 2.

4. In the plaint, it was contended that as the suit property has not been partitioned by meets and bounds between the plaintiff and the defendant no. 3, the defendant no. 3 had no right to purportedly transfer entire 1st floor and entire 2nd floor by way of gift in the manner as mentioned in the deed of gift in favour of the defendant no. 1 and 2. Consequently on the basis of the said deed of gift no right, title and interest in the said portions of the suit property as mentioned in the said deed of gift could pass in favour of the defendant no. 1 and 2. It was stated that the defendant no. 3, doner could not give right, title and interest in the suit property than what he had at the material time or in other words the defendant no. 3 could not purport to transfer, demarcate and/or divide portions in the suit property by way of gift in favour of defendant no. 1 and 2 unless there is partition amongst the co-owner. It was in view of such infirmities, absurdities and illegality the deed of gift was challenged by Charan Kumar Chabria (in short Charan) prayed inter alia, for a preliminary decree for partition declaring ½ share of the plaintiff and ½ share of the defendant no. 3 and on declaration that the deed of gift dated 23rd April, 2002 executed by the defendant no. 3 is illegal, void, ineffective and not binding upon the plaintiff.

5. The suit was contested by all the defendants.

6. The defendant no. 1 and 2 filed a joint written statement. In the said written statement it was contended that Laik Ram Chabria, the father of the parties purchased the suit property in the name of the plaintiff and the defendant no. 3. It was further decided by the parties during the lifetime of their father that having regard to the fact that a separate flat having been allotted to defendant no. 3 by Laik Ram Chabria being Flat no. 2B at premises no. 2A, Rakhal Mukherjee Road, Kolkata-700 025 and he has been residing there after demise of Laik the said defendant no. 3 would execute a deed of gift in favour of his two brothers, defendant no. 1 and 2 in respect of 1st and 2nd floor of the portion of the suit property in order to facilitate all the sons of the Late Laik Ram Chabria to use and enjoy their respective separate portions. It was on the basis of such arrangement and agreement between the parties the defendant no. 3 executed a deed of gift in favour of his other two brothers. It was specifically stated that the defendant no. 1 and 2 are in exclusive possession of the portions transferred to them by way of gift which was in effect implementation of the amicable partition arrived at between the parties soon after the death of their father. The defendant no. 3 since 1999 had been residing separately after the death of his mother on 11th January, 1999 and has voluntarily relinquished his right, title and interest in favour of the respondent no. 1 and 2 of in confirmation of amicable settlement arrived at between the parties and with a view of give effect to pious desire of their father. The said defendants opposed any declaration of validity of the deed of gift dated 23rd April, 2002.

7. The defendant no. 3 filed a separate written stateme