Legal heirs cannot be denied their rightful share in ancestral property without clear evidence of prior transactions affecting their inheritance rights.

JUDGMENT & ORDER

S.D. Purkayastha, J. - The Judgment dated 29.08.2022 passed by the learned District Judge, South Tripura, Belonia in Title Appeal No. 04/2021 and consequent decree thereof are under challenge in the second appeal on the following substantial question of law:

A. Whether a legal heir can be denied the share of the ancestral undivided property, left behind by the late father, only on the ground that he had purchased a portion of the land from his father during the life time of the father.

B. Any other substantial question of law may be framed at the time of hearing.

2. Originally one Sri Srimanta Kumar Datta (original plaintiff i.e. predecessor of present appellant and respondents), Sri Hemanta Kumar Datta (Proforma respondent No.6), and Lt. Sri Sudhir Chandra Datta (predecessor of proforma respondents 7(a), (b)(i-iii), were three brothers. Said original plaintiff filed the involved suit bearing TS(P) No.50/2014 against his said brother Sri Hemanta Kumar Datta and legal representatives of his deceased brother Sri Sudhir Chandra Datta and also impleaded one of his sons, i.e. the appellant, as defendant therein, praying for partition of the suit land consisting of five numbers of plots of total area 1.77 acre (emphasis laid).

3. During pendency of the suit, Srimanta Kr. Datta died and his legal representatives excluding the present appellant were also substituted in his place. His source of claim over the suit land was that he along with his other two brothers were in possession of the entire suit property of 1.77 acre and proper management and development of the land required partition of the same and therefore the suit.

4. The allegation against the present appellant as made in the plaint was that he had also been possessing certain portion of the suit land and on asking he told his father that he had purchased about 7 gandas of land from the suit land on consideration and therefore, he was impleaded as defendant so that he could explain his status in the suit land, if so desired.

5. In the written statement the appellant along with legal representatives of deceased brother of original plaintiff namely Lt. Sudhir Chandra Datta contested the suit and their claim was that joint property was consisting of an area of 1.67 acre under Khatian No.466 and the appellant did not possess any land of said Khatian No. 466. Rather he possessed an area of 0.10 acre of another Khatian bearing No. 1780 of the same Mouja Motai and Khatian was finally published in his name. They also further disclosed that the appellant got about 7 gandas of land from his father about 20 years ago i.e. the original plaintiff from the suit Khatian No.466 to build up his dwelling house when his relationship with his father was good.

6. Further allegations of contesting defendants were that the original plaintiff had driven out the legal representative of Lt. Sudhir Chandra Datta from their share of land where they were residing by constructing dwelling hut. Therefore, they started residing later on in the house of the appellant. However, they did not oppose the partition of the land under Khatian No.466.

7. Learned trial court decreed the suit in respect of 1.67 acre of land of Khatian No.466 as its stands presently, in spite of the fact that the suit land as described in the plaint and as was claimed by the original plaintiff was of 1.77 acre of Khatian No.466. The reasoning for said deviation as given by the learned Trial court in the relevant paragraph, is extracted below:

'From the above discussion it is found that 10 satak of land is under the possession of defendant no.3. In the plaint the plaintiff sated regarding 1.77 acrs of land vide Khatian no.466 and the documents which were exhibited is of 1.67 acrs vide khatian no.466.

Ld. Counsel on behalf of the plaintiff submitted that during the pendency of the suit the land was purchased by defendant no.3 but from the deposition as well as from the documents it shows that before filing this suit 10 satak of