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2020 Supreme(Sikk) 22
IN THE HIGH COURT OF SIKKIM : GANGTOK
MEENAKSHI MADAN RAI, J.
Mahesh Agarwal and Others - Appellants
Versus
Umesh Agarwal and Others - Respondents
RSA No.05 of 2019
Decided On : 14-12-2020
For the Appellant :Mr. N. Rai, Senior Advocate with Ms. Sushmita Gurung, Advocate.
For the Respondent:Mr. T. B. Thapa and Mr. Anmole Prasad, Senior Advocates with Mr. Ranjan Chettri, Mr. Sagar Chettri and Mr. Khemraj Sapkota, Advocates.
Headnote:
In a suit for declaration of title and possession over joint family properties, the court held that the properties were joint family properties and not the separate properties of the defendants. The court also held that the defendants had no right to transfer the properties to a third party without the consent of the plaintiffs.
Fact of the Case:
The plaintiffs, P1, P2, and P3, filed a suit for declaration of title and possession over joint family properties against the defendants, D1 and D2. The plaintiffs claimed that the properties were acquired by their grandfather, Mulchand Agarwal, and that they were held in the name of the joint family firm, "M/s. Shree Mulchand and Sons." The defendants claimed that the properties were their separate properties and that they had been partitioned among them in 1968.
Finding of the Court:
The court held that the properties were joint family properties and not the separate properties of the defendants. The court found that the properties were acquired by Mulchand Agarwal and that they were held in the name of the joint family firm, "M/s. Shree Mulchand and Sons." The court also found that there was no partition of the properties in 1968.
Issues: 1. Whether the properties were joint family properties or the separate properties of the defendants? 2. Whether there was a partition of the properties in 1968?
Ratio Decidendi: The court held that the properties were joint family properties and not the separate properties of the defendants. The court found that the properties were acquired by Mulchand Agarwal and that they were held in the name of the joint family firm, "M/s. Shree Mulchand and Sons." The court also found that there was no partition of the properties in 1968. The court relied on the following principles of law: * In a joint Hindu family, the property is held jointly by all the members of the family and is not the separate property of any one member. * A partition of joint family property can only be effected by a registered deed or by a decree of a court.
Final Decision: The court held that the properties were joint family properties and not the separate properties of the defendants. The court also held that the defendants had no right to transfer the properties to a third party without the consent of the plaintiffs.
JUDGMENT :
Meenakshi Madan Rai, J.
1. In this Second Appeal, the Judgment and Decree, both dated 28.02.2019, in Title Appeal No.18 of 2017, is being assailed. By the impugned Judgment, the Learned First Appellate Court reversed the Judgment in Title Suit No.21 of 2013, dated 28.11.2017, by which the Learned Trial Court had dismissed the Suit of the Respondents herein.
2. The substantive questions of law framed for determination before this Court, are as follows;
“1. Whether the Judgment of the learned First Appellate Court is based on misinterpretation of documentary evidence?
2. Whether a karta of a joint family needs a Power of Attorney to deal with the properties of Hindu Undivided Family?”
3. The Respondents No.1, 2 and 3 herein were the Plaintiffs before the Learned Trial Court and hereinafter they shall be referred to as the Plaintiffs/“P1,” “P2” and “P3.” The Appellants No.1, 2 and 3 herein were the Defendants before the Learned Trial Court. They shall be referred to as the Defendants/“D1,” “D2” and “D3” hereinafter.
4. The Suit was originally instituted as Civil Suit No.10 of 1994 by the surviving Plaintiffs and one Bhaskaranand Agarwal, father of P1 and D1. Bhaskaranand passed away in 1999 and thereafter his name was deleted from the array of the Plaintiffs and the surviving Plaintiffs renumbered as Plaintiffs No.1, 2 and 3.
5.(i) To comprehend the dispute between the parties in its entirety, it is essential to briefly narrate the facts of the case. The Genealogical Chart of P1 and of D1 who are blood brothers, is as follows;
| SRIRAM AGARWAL | |||||
| Mulchand Agarwal | Nandalal Agarwal | Deepchand Agarwal | |||
| Pitambar | Rameswarlal | Tikaram | Laxminarayan | Bhaskaranand (adopted by Deepchand Agarwal) | |
|
| Mahesh Agarwal (Defendant/Appellant No.1) | Umesh Agarwal (Appellant/Respondent No.1) | |||
(ii) The Plaintiffs’ (P1, P2 and P3) case is that one Sriram Agarwal (see Chart supra) had three sons viz. Mulchand Agarwal, Nandalal Agarwal and Deepchand Agarwal of whom Nandalal separated from the joint family. Mulchand had five sons, of whom one i.e. Bhaskaranand, was adopted by Mulchand’s brother Deepchand. Together, the five sons constituted the joint family and joint family business in or around 1940 by the name of “M/s. Shree Mulchand and Sons.”
6.(i) The joint family business originally was in Kalimpong, West Bengal but also had properties in Bombay, Calcutta and Siliguri. The twelve properties in Sikkim described in Schedule ‘A’ to the Plaint, were acquired around 1939-40 by the joint family of M/s. Shree Mulchand and Sons which included the Schedule ‘B’ property allotted to them by the then Maharani of Sikkim, on 14.09.1944. A seven storeyed RCC building was raised on the Schedule ‘B’ land for residential purposes of the joint family and for joint family business and presently, the families of both P1 and D1 are residing in this building of which they are in joint possession.
(ii) In 1968, M/s. Shree Mulchand and Sons settled the joint family properties amongst themselves amicably whereby the properties mentioned in Schedule ‘A’ to the Plaint, were allotted in favour of Late Bhaskaranand and his two sons. The three formed an undivided Hindu coparcenary governed by the Mitakshara School of Hindu Law and were in collective ownership of the Schedule ‘A’ properties, income from these properties went into a joint fund. As per P1, although some of the said properties have been recorded in the individual names of P1 and D1 in the State records, they are joint family property and none of the members thereof had individual or independent rights on the property. As D1 did not take part in the running of the business, he executed a Power of Attorney for this purpose in favour of his father, his mother Smt. Bimala Devi Agarwal and grandmother Smt. Narayani Devi Agarwal (wife of Deepchand Agarwal) on 31.03.1973. That, as females are not co
