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Judgment
[1] Heard Mr. D. K. Biswas, learned counsel appearing for the appellant as well as Mr. S. M Chakraborty, learned senior counsel assisted by Ms. B. Chakraborty, learned counsel for the respondent No.1 and Mr. K. N. Bhattacharjee, learned senior counsel appearing for the respondent No.2.
[2] This is an appeal under Section 96 of the CPC from the judgment dated 09.10.2015 delivered in TS 10 of 2014 by the Civil Judge, Senior Division, North Tripura, Dharmangar. The brief fact which may be essential for determining this appeal is that the respondent No. 1, daughter of the respondent No.2, instituted the suit for declaration and consequential relief. The plaintiff-respondent No. 1 has prayed for declaring her to have the right to protect her paternal property (the suit land).
[3] That apart, a further declaration has been sought by way of the said suit that gift deed No.1-1191 dated 30.06.2010 executed by the proforma-defendant, the respondent No. 2 herein, in favour of the appellant is illegal, fraudulent, void and liable to be cancelled. Simultaneously, it has been prayed to declare the gift deed No.1-2996 dated 18.05.1977 executed by Dhan Singh, the grand-father of the plaintiff-respondent No.1 in favour of the proforma-defendant, the respondent No.2 herein, and father of the plaintiff as illegal, void, and not acted upon and liable to be cancelled.
[4] Further, it has been prayed to direct the defendant to remove any sort of possession from the suit land and to vacate it. The respondent No.2 is the son of Dhan Singh who was the original owner of the suit land along with the other lands. The plaintiff has pleaded that a tract of land measuring 0.426 acre comprised in the plots No.8009 and 8010 in Khatian No. 3235 of Mouja-Dharmangar Town is attracted by the registered deed No.1-1991 dated 30.06.2010. The said land has been elaborately described in the schedule of the plaint. Prior to that, by the registered deed No.1-2996 dated 18.05.1977, the said land was gifted to the proforma-defendant, the respondent No.2 herein.
[5] Both these deeds are under challenge by the daughter who is admittedly does not have any title or any other right including possessory right over the suit land. Even she was born after the deed No.1-2996 dated 18.05.1977 was registered. It has been also prayed that on 30.06.2010, by the gift deed No.1-1991, the proforma-defendant gifted the suit land measuring 0.426 acre to the defendants, the appellants herein. But according to the plaintiff, there is no recital in respect of the acceptance of the gift in the said deed dated 30.06.2010. Therefore, the gift is liable to be declared ineffectual. Even the gift deed dated 18.05.1977 has been challenged for the same reason inasmuch as there is no such recital in respect of appetence of the gift. Other objections in respect of non-payment of the stamp etc. have been raised but supported by sweeping statements are made in Para 12 of the plaint to the effect that the defendants and the pro-defendant in connivance practiced fraud to deprive the Plaintiff from her right to ancestral property. But no relief has been claimed against the pro defendant and surprisingly the pro-defendant by filing a written statement, as it appears, has stated that he will not oppose the prayers (1) and (4). Even he may be transposed as the plaintiff.
[6] The defendants No. 1, 2, 3 and 4 [the appellants herein] filed a combined written statement to state, inter-alia, that in Para-13 that the ISKCON Authority not impleaded in the suit, had been delivered possession over the land involved in the suit and attracted by impugned deeds. That act was within the clear knowledge of this plaintiff, the pro-defendant No.5 and all others, as the ISKON raised huge and permanent constructions on the land in question without any objection from them or from any quarters, and as such the plaintiff and the pro-defendant are estopped from questioning illegality of their possession based on the title.
[7] On the face of such opposition, the court of the Civil Judge, Senior Division, North Tripura, Dharmangar, herein after the trial judge, has framed the following issues:
(i) Is the suit maintainable in its present form?
(ii) Has the plaintiff any right to protect her paternal property i.e., the suit property?
(iii) Is the deed No. 1-1991 dated 30.06.2010 executed by the Proforma-defendant Sri Birendra Singha in favour of the defendants illegal, fraudulent, void and liable to be cancelled?
(iv) Is the gift deed No. 1-2996 dated 18-05-1977 executed by Dhan Singh in favour of the proforma-defendant Sri Birendra Singha illegal, void and liable to be cancelled?
(v) Is the plaintiff entitled to get a decree as prayed for in her plaint?
(vi) To what other relief/relieves the parties are entitled [to get]?
[8] Issues No.2 and 4 are the paramount for purpose of determining the suit. While deciding the issue No.2, the trial judge has held that plaintiff had the locus-standi to maintain the suit. But the trial judge has decided the issue No.4 in the negative holding that the proforma-defendant No.5, the respondent No.2 herein, had acted on the gift deed No.1-2996 dated 18.05.1977. It has been observed as under:
The plea and evidence of the plaintiff is that this gift deed was only duly accepted or acted upon by done as there is no single line mentioned in the gift deed showing the acceptance of done. Admittedly pro-defendant is the only son of Dhan Singh and he executed the registered gift deed in favour of pro-defendant in respect to his property that included suit land. There is no doubt that acceptance of gift deed is a sine quo non to complete the gift. It is evident from Ext.3 vide Khatian No.3235 that the land measuring total 1.304 acre was recorded in the name of Pro-defendant. So unless the gift deed was accepted by donee i.e. pro-defendant, the gifted property could not have been recorded in his name.
But finally, the suit has been decreed acceding to the reliefs that the plaintiff has the right to protect the property of the proforma-defendant No.5 who is still alive and contested the suit.
[9] Even plea of spes successionis [see Section 6(a) of the Transfer of Property Act] raised by the defendant has not been accepted. For such purpose, support has been taken from a decision of Calcutta High Court titled Isri Dut Koer Vs. Hunsbutti Koerain reported in (1883) 10 IA 155-56: (1883) 10 Cal 324 as quoted in the commentary on Specific Relief Act by Pollock & Mulla. We make it abundantly clear that spes successionis, vis-a-vis clause (a) of Section 6 of the Transfer of Property Act, excludes mere chance of an heir apparent of succeeding to a transferable property. The technical expression for such a chance is spes successionis. Such expectation does not transform to an interest on the property.
[10] We have scrutinised the said report but the lis which has been decided in Isri Dut Koer (supra) is in respect of right of a Hindu reversioner to seek declaration during the widow's life. The context and the dispute in this case is completely and diametrically different.
[11] Mr. Biswas, learned counsel appearing for the appellant has submitted that the impugned judgment is fraught with serious illegalities and contradiction which demolishes the analogy of the findings. Both Mr. S. M. Chakraborty, learned senior counsel appearing for the plaintiff-respondent as well as Mr. K. N. Bhattacharjee, learned senior counsel appearing for the respondent No.2 have submitted that when the father in whose name the property stood, accedes that the relief in respect of declaration to protect of his property be granted by the court that granted her [the plaintiff] the source of authority of the plaintiff-respondents.
[12] Having appreciated the submission made by the counsel for the parties and findings on the issues as accommodated in the impugned judgment, this court is of the view that solitary question that requires to be addressed is whether the plaintiff had any locus-standi on the date when the cause of action arose or not. The trial judge while deciding the issue No.4 has categorically observed that by the deed dated 18.05.1977 (Exbt-2), the property stood absolutely transferred in favour of the proforma-defendant No.5, the respondent No.2 herein and the record of right has been mutated in his name. That incident alone shows the gift had been accepted by the proforma-defendant No.5. Hence, his status as the donee excluded rights of any other persons on the said property by operation of the registered gift deed No.1-1991 dated 30.06.2010 (Exbt-G2). Therefore, it is apparent that the plaintiff-respondent No.1 did not have any right whatsoever over the said property and as such by holding that she had the locus-standi to maintain the suit, the Civil Judge, has committed a patent illegality. Hence, the said finding which requires to be interfered with. Accordingly, it is interfered with and set aside.
[13] The plea that has been finally raised by the plaintiff-respondent No.1 that her authority came from the concession in respect of the prayer (1) in the plaint by the proforma-defendant No.5. This court is constrained to observe that the rights of the parties are to be decided on the date when the cause of action arose and led to institution of the suit. On that date, even on the date of institution of the suit, the plaintiff did not have any authority to institute the suit in respect of the suit property. Even in such circumstances the principle of ratification would not apply as the maintainability of the suit has to be decided as the threshold.
[14] That apart, even by the written statement, no authority can be conferred to any of the parties. By the written statement, any person who is opposing the suit may admit any claim or relief or may oppose pleading in the plaint or accede or claim for the set off or reserve a space for raising a counter claim. The written statement cannot be taken as the document of authorization to represent any property. That can only be done by an independent instrument by in accordance with law. No such instrument has not been executed by the pro-forma defendant in favour of the plaintiff. Accordingly, the suit has to be treated to have been instituted by a person who did not have any locus-standi.
Hence, this appeal stands allowed consequently the suit as instituted by the plaintiff-respondent No.1 being TS 10 of 2014 stands dismissed.
Prepare the decree accordingly.
Send down the LCRs forthwith.
It is made absolutely clear that only the proforma-defendant No.2 might command locus-standi if he had reasons to challenge the validity or legality of the gift deed No.1-1991 dated 30.06.2010 (Exbt-G2).