A deed of gift is irrevocable unless legally revoked, and a family arrangement cannot supersede it without proper grounds.

JUDGMENT :

BIBHAS RANJAN DE, J.

1. At the very outset it is pertinent to mention here that the appellants not being parties to the suit or first appeal filed this appeal along with an application (CAN No. 4 of 2024) seeking leave to file appeal. Hon’ble Division Bench, considering the caveatable interest in the subject property, granted leave to file. Hence this appeal.

2. Challenge in the present appeal is to a judgment passed by Ld. Additional District Judge, 6th Court, Alipore on 02.12.2023, in connection with Title Appeal no. 84 of 2018 wherein Ld. First Appellate Court reversed the judgment and decree passed by the Ld. Civil Judge, Junior Division, 2nd Court, Alipore in Title Suit No. 302-17 of 2006.

3. The brief facts leading to the present appeal is that the subject Land was purchased on 30.05.1947 by the joint family in the name of one Kamal Basini Majumder, grandmother of plaintiffs. Said Kamal Basini Majumder executed a deed of gift on 30.08.1967 by allotting 50% of the land to her elder son Binoy Krishna Majumder and rest 50% to her grandsons namely Surojit Majumder & Subhojit Majumder. Subhojit Majumder, plaintiff no. 2/respondent no. 4 died as bachelor during pendency of the first appeal and his name was expunged from the cause title of this appeal.

4. Plaintiff no. 1 & 2 i.e. grandson of Kamal Basini Majumdar and also Binoy Krishna Majumder executed a family arrangement and partition on 05.03.1982 (Exhibit 3). By that family arrangement, executors reduced their title and interest from 50% to 1/3rd and remaining 1/3rd was allotted to their parental cousin uncle namely Saroj Kumar Majumder.

5. Binoy Krishna Majumder executed a will in the year 1983 (Exhibit 9) in respect of his share to the extent of 1/3rd of subject property to her eldest daughter Krishna Majumder (Mitra) i.e proforma defendant/respondent no. 2. By that will Binoy Krishna Majumder also parted with other properties in name of his other two daughters. By that will Binoy Krishna Majumder also allotted other property to the plaintiffs and will was probated on 29.01.1992.

6. Said Saroz Kumar Majumder bequeathed the said subject flat alone with two garages to his wife Marjorie Majumder/original defendant who also transferred the said flat to one Gita Rani Panda (Mukherjee) by a sale deed in the year 2011 (Exhibit-7). Said Gita Rani Panda (Mukherjee) died in the year 2011 and present appellant are the legal heirs of Gita Rani Panda (Mukherjee).

7. Legal heirs of Gita Rani Panda (Mukherjee) filed an application along with sale deed executed by original defendant Marjorie Majumder, with a prayer for inclusion as a party to the suit. But, that was refused by the Trial Court on the ground of “lis pendenti lite transferee.” After demise of Marjorie Majumder, her son Simon Majumder was substituted in the Trial.

Observation of the Trial Judge & First Appellate Court:

8. Ld. Trial Judge framed nine (ix) issues for adjudication of the title suit no. 302-317 of 2006 which are as follows:

(i) Is the present suit maintainable in its present form and in law?

(ii) Have the plaintiffs any cause of action arisen to file the instant suit?

(iii) Is the suit bad for non-joinder and/or defect of necessary parties?

(iv) Have the plaintiffs any right title and interest and possession of the suit property?

(v) Was the deed of family settlement and partition dated 05.03.1982 superseded the deed of gift dated 30.08.1967?

(vi) Have the plaintiffs executed the deed of family settlement and partition?

(vii) Are the plaintiffs entitled to get any decree as prayed for?

(viii) Are the plaintiffs entitled to get any other relief/relieves under the law and equity?

(ix) Additional Issue: Whether the deed of conveyance dated 02.05.2011 executed and registered by original defendant no. 1 is void ab initio and not binding upon plaintiffs.

Among those issues Ld. Trial Judge set the conflict between the family arrangement and partition deed and the deed of gift at rest by holding, inter alia, that the family arr