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Judgment
This appeal under Section 100 of the CPC arises from the judgment dated 22.12.2015 delivered in Title Appeal 10 of 2015 by the Additional District Judge, Unakoti Judicial District, Kailashahar. The appeal was admitted on 21.04.2016 on the following substantial question of law and none else :
"(i) Whether there is any substantive evidence of partition of the suit property conferring the definite title on the legal heirs of Amulya Chandra Das, since deceased, to rebut the correctness of the entry as reflected in Khatian No.312 of Mouja Fatikroy (Ext.1)? and
(ii) Whether the plaintiffs‟ do have the preferential right under Section 22 of the Hindu Succession Act, 1956 as regards the transfer of the property as described in the Schedule-A of the suit ? "
To have the perspective fact for appreciation of the substantial questions is briefly introduced at the outset. The appellants instituted the suit for declaration and mandatory injunction being Title Suit No.10 of 2014 in the Court of the Civil Judge, Senior Division, North Tripura, Kailashahar [as it then was]. By means of the suit, the appellants sought to ensure their preferential right over the suit land [the land described in Schedule-B of the plaint] as the defendant No.1 offered the property for sale. Further, the appellants prayed for consideration money of the property being 1/5th share of the land described in the Schedule-A of the plaint. The appellants have urged for mandatory injunction to prohibit the defendants No.1 and 2 for execution of the sale deeds in favour of the plaintiffs. Even, the appellants asked for declaration that the sale deed presented by the defendant No.1, in favour of the defendant No.2, is illegal, void and not binding upon the plaintiffs. For purpose of reference, the schedules describing the suit land are reproduced hereunder :
SCHEDULE-A (SUIT LAND)
Mouja-Fatikroy, Tehasil-Fatikroy, Revenue circle-Kumarghat, Sub-Division-previous Kailashahar at present Kumarghat, District- Unakoti, previously- North Tripura, Khatian NO.312, Dag No. 1839, land measuring 0.31 acres class of land -Layak patit (tilla)
Butted and bounded by :
North by :- Legal heirs of Sailen Deb
South by :- Khash land and in possession of plaintiffs
East by :- P.W.D. Road
West by :- Khas land in possession of plaintiffs.
SCHEDULE-B
Mouja-Fatikroy, Tehsil-Fatikroy, Revenue Circle-Kumarghat, Sub-Division-Kumarghat, previous-Kailashahar, District -Unakoti, Khatian No.312, Dag No.Hal-1839, land measuring 0.0602 acres i.e. 1/5th share in the schedule A land.
Butted and bounded by :
North, South & West - The land of plaintiff and defendant
No.3 to 9.
East by - PWD.
According to the appellants [the plaintiffs in the suit], the land described in Schedule-A belong to one Binode Behari Das, the father of the plaintiffs and the defendants No. 1 and 3, and one Amulya Ch. Das. After death of Binode Behari Das, the plaintiffs, the defendants No.1 and 3 and Amulya Ch. Das inherited the property as described in Schedule-A. But before the suit was instituted, Amulya Ch. Das passed away and his interest is represented by the defendants No.4 to 9.
The plaintiffs have asserted that the property as described in Schedule-A is still a joint property and at any point of time, the said property was not partitioned, according to the share. The defendant No.1 proposed to transfer "his interest" in the said property to one Rangesh Choudhury, the defendant No.2. The plaintiff No.1 by a notice dated 16.12.2013 expressed his and other co-sharers willingness to purchase the 1/5th share of the defendant No.1. But ignoring that notice, the defendant No.1 proposed to transfer the land to the defendant No.2 by preparing a deed of sale. The plaintiffs have asserted that the defendants No.3 and 4 put their signature as the witnesses and they presented the said deed for registration before the District Sub-Registrar, Kailashahar on 22.01.2014. The plaintiff No.2 filed an objection against such execution and registration of the deed of transfer. According to the plaintiffs, the registration was kept pending in view of the objection raised by the plaintiff No.2.
There is no dispute that the plaintiffs, defendants No.1 and 3 and Amulya Ch. Das are the class-I heirs of Binode Behari Das as per the Hindu Succession Act. Since, there was no partition of the land, the plaintiffs claimed their preferential right under Section 22 of the Hindu Succession Act which provides that where, after the commencement the Hindu Succession Act, 1956, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and if, any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
It further provides that the consideration for which any interest in the property of the deceased may be transferred under this Section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.
If there are two or more heirs specified in Class-I of the Schedule proposing to acquire any interest under this section, that heir would offer the highest consideration for the transfer shall be preferred.
It is apparent from a reading of Section 22 of the Hindu Succession Act, 1956 that the benefits are available to the heirs, Class-I of the Schedule and to none else, not even to their heirs. Before the right, conferred by this section, can be exercised, the following conditions are to be fulfilled :
(a) the intestate must have died after the enforcement of this Act ;
(b) both the proposed transferor and the transferee must be heirs mentioned in Class I of the Schedule ;
(c) the interest proposed to be transferred must be an interest in some immoveable property or business ; and
(d) the purchaser is agreeable to pay the highest price or the price to be determined by the Court.
By filing the written statement, the defendants No.1, 3 to 9 has categorically stated that the statements as made by the plaintiffs that the property left by Binode Bihari Das was in the joint possession of the plaintiffs and the answering defendants without any partition or that the defendant No.1 proposed to transfer 1/5th share in the property is not true and therefore, has been denied. The defendants No.1, 3 to 9 has denied to have received any notice from the plaintiffs expressing their willingness.
In para-12 of their written statement, they have categorically asserted that by way of friendly settlement made on 25.12.2012, the defendant No.1 got .06 acre of land, butted and bounded by on the North-Sanjoy Deb, on the South-land of legal heirs of Amulya Ch. Das i.e. the defendants No.4 to 9, on the East-PWD road and on the West-Khash land possessed by the defendant No.1. Similarly, .06 acre of land was given to the legal heirs of Amulya Ch. Das, bounded on North-Bimal Ch. Das i.e. the defendant No.1, on the South-Bakul Ch. Das i.e. the defendant No.3, on the East- Road, on the West-khash land possessed by the defendants No.4 to 9. On the just adjacent south, land measuring .06 acre was given to Bakul Ch. Das. The said land of Bakul Ch. Das, i.e. the defendant No.3 is bounded on the North-legal heirs of Amulya Ch. Das, on the south-Bipul Ch. Das i.e. the plaintiff No.2, on the East-Road, on the West-khash land in possession of Bakul Ch. Das. Thereafter, .06 acre of land was given to the plaintiff No.2, bounded by on the North-Bakul Ch. Das, on the South-Basanta Kr. Das, i.e. the plaintiff No.1, on the East-Road, on the West-khash land in possession of the plaintiff No.2 and the remaining .06 acre was given to the plaintiff No.1 bounded by on the North-Bipul Ch. Das, on the South-Nirode Malakar, on the East-Road, on the West- khash land possessed by the plaintiff No.1. As such, the plaintiffs have no right to institute the suit [para-12 of the joint written statement filed by the defendants No.1, 3 to 9].
In para-13 of the written statement, those legal heirs of ancestors have categorically stated that on 25.12.2012 the jointly inherited land was amicably partitioned by metes and bounds on the basis of oral family settlement in presence of well wishers and one survey knowing person. After the said demarcation, the plaintiffs and the defendants No.1, 3 to 9 became the owner and possessor of their respective portion of the inherited ancestral property. Thereafter, the defendant No.1 informed the plaintiffs and the defendant No.3 that he would sell out the land that he got in the partition, as described in Schedule-B. He had published an advertisement in "Daily Deshar Katha" for sale of the land measuring .06 acre along with the land of the defendants No.4 to 9. In response to the said advertisement, the defendant No.1 had approached to purchase .06 acre of land. The defendant No.1 entered in the agreement in writing on 15.09.2013 on accepting the earnest money to the extent of Rs.60,000/- from the defendant No.2. The defendant No.1 handed over the possession of the said land to the defendant No.2 on 10.12.2013. On 22.01.2014, the defendant No.1 presented the sale deed for registration in favour of the defendant No.2 and according to those defendants, the sale deed was registered. On 22.01.2014, the sale deed was presented for registration on receiving the full consideration money. The plaintiffs demanded the money from the defendant No.1 for illegal gain and since, the defendant No.2 denied to make such payment, the defendant No.2 filed an objection before the District Sub-Registrar on 28.01.2014. The defendant No.2, by filing a short written statement, has denied the pleading that the land was not partitioned. He has also stated about the registration of the sale deed and the objection as raised by the plaintiff No.2. But the defendant No.2 has admitted that the registered sale deed had not been handed over to him for the said objection.
Based on the pleadings, the trial court framed as many as six issues including whether the land described in the schedule-A was amicably partitioned amongst the co-sharers on 15.12.2012 and whether the defendant No.1 got the land as described in the schedule-B. By the judgment dated 12.05.2015, the trial court while determining the issues, particularly on the aspect of amicable partition has observed that the defendant No.1 has categorically deposed that the oral family settlement was made on 25.12.2012 in presence of Nirodh Malakar, Fatik Saha and other well wishers. By virtue of that family settlement, he got 0.06 acre of land as described in the schedule-B. In the cross examination, the defendant No.1 [DW-1] has confirmed the boundary description of the land allotted to Bakul Ch. Das [the defendant No.3] and Basanta Kr. Das [the plaintiff No.1]. For certain discrepancies in the description of the demarcated land, it was pleaded that no partition of the land took place. The trial court has observed that such discrepancies may arise while giving evidence depicting the boundary of several plots separated by partition and for that reason, testimony of the witnesses cannot be said untrustworthy. DW-3, Nirodh Malakar has supported the evidence of DWs-1 and 2 by stating that partition took place on 25.12.2012 in presence of all the five brothers. One Fatik Saha, a deed writer by profession and other well wishers were also present.
Having discussed elaborately, the trial court has observed that no step was taken for production of the sale deed from the custody of the District Sub-Registrar, Kailashahar. While deciding the issue No.4, the trial court has returned the finding that the plaintiffs are not entitled to enforce their preferential rights to purchase the land as described in the schedule-B as the trial court has accepted the fact of amicable partition. Consequent thereupon, all the other issues were decided against the plaintiffs. When the said judgment dated 12.05.2015 was challenged in the appeal filed by the plaintiffs under Section 96 of the CPC being Title Appeal No.10 of 2015, by the judgment dated 22.12.2015 the Additional District Judge, Kailashahar has affirmed the finding of the trial court in respect of the amicable partition. The first appellate court has observed that DW-4 [Fatik Saha] who is a deed writer by profession, has supported the evidence of DWs- 1 to 3. So far the examination-in-chief relating to survey of the land on 25.12.2012 is concerned, DW-4 had categorically stated after demarcation of land, the pillars were posted on the respective land of the parties. He has also stated that so far he remembered, each of the co-sharers got .06 acre of land.
Thereafter, the following concurrent finding was returned by the first appellate court :
"Hence, from the above discussion made, it can be said that learned Trial Court has rightly decided issue No.(ii) which is also the point No.(1) of this appeal that A‟ schedule land was amicably partitioned amongst co-sharers on 25.12.2012 and the A‟ schedule land is now not a joint properties of the parties."
On the face of the said concurrent finding, this appeal has been filed by the plaintiffs.
Ms. P. Dhar, learned counsel appearing for the appellants has submitted that the ancestral property as jointly owned by the plaintiffs, the defendant No.1, the defendants No.3 to 9 were never partitioned and there is no evidence of worth to establish the partition of the ancestral joint property. Ms. Dhar, learned counsel has quite emphatically submitted that the record of rights continues to show the said property as described in the schedule-A of the plaint as the un-partitioned property. Hence, the preferential right under Section 22 of the Hindu Succession Act, 1956 was available to the plaintiffs and other co-sharers, inasmuch as, the defendant No.1 had proposed to sale his share. According to Ms. Dhar, learned counsel, the property is still under the possession of legal heirs of Binode Bihari Das. Thus, unless the co-sharers waive their right created under Section 22 of the Hindu Succession Act, the defendant No.1 or any other individual co-sharer cannot sell their share.
Ms. Dhar, learned counsel in support of her contention has taken this court to the evidence as recorded in the trial and submitted that the agreement dated 15.09.2013 between the defendants No.2 and 1 is also illegal in view of Section 22 of the Hindu Succession Act and therefore, the entire transaction is invalid. The plaintiff No.2 did not testify in support of the pleadings, however, the plaintiff No.1, Basanta Kr. Das has testified in the trial and stated that after death of Binode Bihari Das, the land as described in the schedule below had been mutated in the name of his sons namely Amulya Ch. Das [now deceased], Basanta Kr. Das [plaintiff No.1], Bakul Ch. Das [defendant No.3], Bipul Ch. Das, [the plaintiff No.2] and Bimal Ch. Das [the defendant No.1] by making posting in Khatian No.312 of Mouja Fatikray. According to him [the plaintiff No.1], the plaintiff No.2 filed the objection when he learnt that, part of the un-partitioned land was being sold to the defendant No.2. He has denied the existence of amicable family partition amongst the legal heirs. PW-1, has surprisingly stated in the cross-examination that he cannot exactly say what has been written in his evidence in chief. He has also denied that he was informed of sale of the land to the defendant No.2. He has even denied that he gathered the knowledge on 22.01.2014 that the defendant No.1 executed the sale deed in favour of the defendant No.2. Even, he is not aware that the defendants No.3 and 4 were the attesting witness in the said sale deed.
PW-2, Sudhir Malakar is a person who has a landed property along the disputed land came forward to support the case of the plaintiffs by stating that the land as described in the schedule-A remained under joint ownership and the possession of part of the said land was never handed over to the defendant no.2. But in cross-examination, PW-2 has stated that he cannot say what has been written in the evidence-in-chief.
PW-3, Karuna Malakar has the landed property near the suit land and he has categorically stated that on 25.12.2012, there was no family partition of the un-partitioned land. But in the cross-examination, he has stated that distance between his house and the suit land is around 2 kms., and he cannot say whether the defendant No.2 has been occupying the land as described in the schedule-B.
DWs- 1, 2, 3 and 4 has categorically stated about the demarcation of the joint inherited property. DW-5, the defendant No.2 has supported the fact relating to agreement to sale and execution of the sale deed.
Ms. Dhar, learned counsel for the appellant has submitted that the fact of amicable partition has not been proved. On the face of the evidence of PWs 1, 2 and 3, this court has nothing to do but to discard their evidence inasmuch as these witnesses have stated they are not aware about what has been stated in the evidence-in-chief as filed by affidavit under Order 18, Rule 4 of the CPC. In this regard, a decision of this court in Smt. Bishnupriya Das versus Chunilal Das and Others [judgment dated 18.07.2018 delivered in RSA No.31 of 2015] may be referred, as there this court had occasion to observe as under :
"14. The plaintiff-appellant did not appear in person, in the trial to depose and prove her case but on her behalf her attorney (PW1) appeared and deposed in the court. While browsing through the records, a very significant statement made by PW1, the person who was entrusted to prove the plaintiffs case has been located and that statement is required to be reproduced. It reads as under :
"I do not know how to read in English. I have no idea about the contents of the Affidavit-in-Chief"
However, it is apparent on the face that the examination-in-chief filed under Order 18 Rule 4 of the CPC, has been signed by the attorney who has stated that he has no idea about the content of the said affidavit. This statement is enough to hold that the case as pleaded by the plaintiff has not been proved at all, inasmuch as, the defendant No.2 does not have any burden to prove the case of the plaintiff."
This principle would equally apply in the present case in respect of the statement as made by PWs 1 and 2, in particular.
Ms. Dhar, learned counsel for the appellant has referred a decision of Madras High Court in Nagammal and Others versus Nanjammal and Another reported in 1970 (1)MLJ 358 where it has been enunciated as follows :
"The question of exercise of preferential right can arise only when there is a proposal to sell the property. There is no evidence that, at any time, to the knowledge of the plaintiffs, there was a proposal for sale. For the first time, the plaintiffs came to know of her intention to sell when she sold the property to the 2nd defendant. To infer waiver of the right, there must be knowledge and an opportunity to exercise the option. There can be no claim of bona fides and want of notice by the purchaser in the case, as the right conferred here is statutory and the purchase is of the share of the co-heir shortly after the inheritance opened. The thing' speaks for itself. The existence of the right is patent and the burden is upon the purchaser to establish that the other co-heirs declared or waived their preferential right when occasion arose. It is not pretended that the purchaser made any reference to the non-alienating co-heirs before his purchase. It follows that the plaintiffs have not lost their preferential right of purchase by the sale and are entitled to have the property conveyed to them."
Ms. Dhar, learned counsel has submitted that waiver of the preferential right has not been established by the purchaser. Moreover, from khatian No.312 [Exbt.1] it would be apparent that the land has remained un-partitioned. In respect of the publication of the notice for sale, Ms. Dhar, learned counsel has submitted that the copy of the newspaper "Daily Deshar Katha" has not been produced but a money receipt as the charge for publication of the notice on 25.08.2013 has been introduced in the evidence as Exbt. A. In absence of the content of the notice, the court cannot draw any inference in respect of the notice. Further, Ms. Dhar, learned counsel has submitted that in the cross-examination, DW-1 has denied that he did not propose to the plaintiffs to purchase his land. According to Ms. Dhar, learned counsel there is no convincing evidence to establish the fact of partition by family arrangement as claimed by the defendants. Hence, the plaintiffs have the preferential right and thus if the defendant No.1 intended to transfer his share of the un-partitioned land, the defendant No.1 had to offer first to the other co-sharers before he offered to a stranger. Hence, the finding returned by the courts below is visited by perversity and as such be interfered with.
From the other side, Mr. S.M. Chakraborty, learned senior counsel appearing for the respondent No.1 and Mr. P.K. Ghosh, learned counsel appearing for the respondent No.2 have submitted that the findings as returned by the courts below are not visited by any infirmity at all inasmuch as, even the plaintiff No.2 did not come forward to prove the pleadings. The photo copy of the said objection dated 28.01.2018 has been admitted in the evidence as Exbt.3 without production of the original from the custody of the District Sub-Registrar and without following the procedure as laid down in Section 65 of the Indian Evidence Act. It has to be thus inferred that the other co-sharers excepting the plaintiffs have accepted the fact of partition by family arrangement as claimed by the defendants. The plaintiff No.1 by making the statement that he is not aware of the statements made in the evidence in chief has made the testimony unreliable by the court.
Having appreciated the submissions of the learned counsel for the parties, it is observed that the plaintiffs have failed to rebut the claim of the defendants that the land as described in the Schedule-A was partitioned amongst the co-sharers and the defendants have discharged their onus to establish the fact of partition by family arrangement. Thus, on the basis of the entry as reflected in Khatian No.312 of Mouza-Fatikray [Exbt.1], no presumption of correctness can be inferred. Therefore, the substantial question No.1 as reproduced above has to be answered holding that there is substantive evidence of partition of the suit property [the land described in Schedule-A of the plaint]. In view of the said finding, it has to be further observed that the plaintiffs did not have the preferential right under Section 22 of the Hindu Succession Act, 1956 [in reference to the substantial question No.2] and therefore, there is no question of informing the plaintiffs before the sale is executed.
Having observed thus, this appeal stands dismissed. Prepare the decree accordingly.
Send down the records thereafter.