Kusumi Mallik vs Pirabala Das

Suman Shyam, J—This second appeal has been preferred against the judgment dated 20-12-2003 and decree dated 03-01-2004 passed by the Civil Judge (Sr. Div.), Morigaon in Title Appeal No. 27/2003 reversing the judgment and decree passed by the Civil Judge (Jr. Div.), No. 1, Morigaon in Title Suit No. 03/2000 dismissing the suit filed by the plaintiff/respondent.

The background facts of the case as emerged from the record can be noticed as follows. According to the plaintiff''s version her father Ramesh Chandra Sikdar was the original owner of land measuring 16B-4K-18L covered by different Dag numbers in the following proportion:

The plaintiffs case is that out of the aforesaid land, an area of land measuring 2B-0K-19L covered by Dag No. 185 of PP No. 90 of Bordoloni Kissam was gifted by Ramesh Chandra Sikdar to his adopted son i.e. proforma defendant No. 2 Surya Kanta Sikdar. Another 1B-3K-10L of land covered by Dag No. 224 although mutated in her name, is in actual possession of one Ramesh Chandra Mallik and the plaintiff does not have any title or possession over the said plot of land. Ramesh Chandra Sikdar died leaving behind his wife Sumitra Bala Sikdar and six daughters including the plaintiff. At the time of his death Ramesh Chandra Sikdar was the owner in possession of a total area of land measuring 13B-0K-16L. After the death of Ramesh Chandra Sikdar the name of his wife Sumita Bala Sikdar was mutated in respect of the entire area of land and thereafter on 30-01-1992 her mother, Sumitra Bala Sikdar executed registered will bearing No. 3/1992 in favour of the defendant No. 1 to 5, thereby bequeathing the entire land left by Ramesh Chandra Sikdar to the five sisters of the plaintiffs thereby depriving her from the paternal properties. It is the case of the plaintiffs that Sumitra Bala Sikdar was not competent to execute the aforesaid will as she did not have testamentary capacity to bequeath the entire land left behind by her husband in favour of the other five daughters by depriving the plaintiffs. It is the further case of the plaintiff that after the death of Ramesh Chandra Sikdar, his wife Sumitra Bala Sikdar as well as the six daughters became 1/7th share holder in respect of the entire property left behind by Ramesh Chandra Sikdar and in that view of the matter Sumitra Bala Sikdar could at best have transferred her individual 1/7th share in the undivided property by means of the aforesaid registered will.

The plaintiff''s case is also that she is presently in possession of land measuring 0B-2K-18L covered by Dag No. 153 which is described in the schedule-B to the plaint. Since each of the legal heirs of Ramesh Chandra Sikdar would be entitled to 1/7 share in the property left behind by him, which according to the plaintiff is the area of land measuring 13B-0K-16L, hence, the plaintiff claimed to be entitled to total area of 2B-0K-19L of land in her paternal property. Such being the position the plaintiff has prayed for declaration of her right, title and interest to the extent of land included in schedule-A of the plaint; confirmation of her possession in respect of land described in schedule-B to the plaint and recovery of khas possession in respect of land described in schedule-C of the plaint being the balance portion of land which she is entitled to beside seeking other consequential relief.

The defendant No. 1 to 5 contested the suit by filing written statement inter alia stating that there is no cause of action for the suit; that the suit is barred by limitation beside taking the plea pertaining to maintainability of the suit. The contesting defendants took a pleaded stand that their father Ramesh Chandra Sikdar had already given a plot of land measuring 1B-3K-10L covered by Dag No. 224 of the suit patta to the plaintiff and accordingly her name was also mutated in respect of the said plot of land which is under her possession since a long time. The contesting defendants further alleged that the plaintiff has been cultivating the said plot of land through the proforma defendant No. 1. The contesting defendants although admitted that their father Ramesh Chandra Sikdar was the sole owner in possession in respect of a plot of land measuring 16B-4K-18L covered by Dag No. 153, 185, 186, 187 and 224 of PP No. 90 of Village- Bordoloni at Mouza - Mayong, however, it is their case that the said Ramesh Chandra Sikdar during his life time had gifted 2B-0K-12L of land from Dag No. 185 in favour of the proforma defendant No. 2. That apart, he had also transferred a plot of land measuring 1B-3K-10L of Dag No. 224 to the plaintiff besides giving her another plot of annual patta land upon which the plaintiff had a dwelling house. As such according to the contesting defendants the plaintiff cannot claim any share in the land measuring 13B-0K-16L which remained in exclusive possession of the widow of Ramesh Chandra Sikdar, and was eventually bequeathed by her to defendant No. 1 to 5 by means of a registered deed of will as mentioned above. The defendant Nos. 1 to 5 have acquired their right, title and interest over the said plot of land on the strength of the will which has also been probated by a competent court in Probate Case No. 35/1993. The defendants have therefore, prayed for dismissal of the suit.

On the basis of pleadings of the parties the learned Trial Court had framed as many as six issues which are as follows:

(i) Whether there is any cause of action for the suit?

(ii) Whether the suit is maintainable in its present form?

(iii) Whether the suit is barred by Law of Limitation?

(iv) Whether the plaintiff has right, title and interest over the suit land through right of inheritance claiming it as ancestral property?

(v) Whether the defendants possess right over the suit land through right of inheritance and the alleged will?

(vi) To what relief/reliefs the parties entitled to?

After examining the evidence available on record and also hearing the learned counsel for both the parties the Trial Court decided the issue No. 4 against plaintiff and in favour of the defendants. The issue No. 4 being the key issue in the context of the suit, the learned Trial Court had consequently dismissed the suit filed by the plaintiff.

Being aggrieved by the judgment and decree dated 03-09-2003 passed by the Civil Judge (Jr. Div.) No. 1, Morigaon the plaintiff as appellant preferred Title Appeal No. 27/2003 in the court of Civil Judge (Sr. Div.), Morigaon. Upon hearing the learned counsel for the parties the First Appellate Court reversed the findings and conclusion recorded by the Trial Court in respect of issue No. 4 and thereby decreed the suit of the plaintiff/respondent by the judgment dated 20-12-2003 and decree dated 03-01-2004.

Being aggrieved and dissatisfied with the judgment passed by the learned First Appellate Court the defendants as appellants have preferred this second appeal which has been admitted for hearing on the following substantial questions of law:

(1) Whether the decision of the Courts below in dismissing the suit for not impleading the State of Assam as defendant?

(2) Whether a purchaser of land can enforce his right in respect of any part and parcel of the property as a whole after partition?

(3) Without a decree for partition whether a co-owner is entitled to khas possession of his/her share in a joint property left by predecessor-in-interest according to his/her choice?

(4) Whether the learned lower Appellate Court illegally passed a decree in respect of share without taking the whole of the property into account as left by the predecessor-in-interest and by excluding the portion of land already owned by the plaintiff?

(5) Whether the learned First Appellate Court is wrong to grant a relief in respect of testamentary power of the mother of the parties although such relief was already barred by limitation?

I have heard Mr. H.K. Deka, learned Sr. counsel appearing for the appellants and have also perused the judgment passed by the court''s below as well as the materials on record. None appeared for the respondent.

Mr. H.K. Deka, learned Sr. counsel submits that by the very nature of relief prayed for in the plaint it is apparent that the plaintiff is claiming declaration of exclusive title and possession in respect of the ancestral property. Such being the position, the plaintiff ought to have instituted the suit for partition. However, no such relief has been prayed for in the title suit. Notwithstanding the same the learned First Appellate Court has decreed the suit filed by the plaintiff by granting her all the reliefs including exclusive title and possession in respect of part of the undivided ancestral property without taking into consideration the whole property left behind by the predecessor-in-interest and also without declaring the exclusive share and separate possession of each of the co-sharer.

I have considered the submissions made by Mr. H.K. Deka, learned Sr. counsel appearing for the appellants. From the bare reading of the plaint it is apparent that suit has been constituted with the central issue being the question of entitlement of the plaintiff as regards the exclusive title and share in the paternal property. Such being the position the First Appellate Court could not have decreed the suit filed by the plaintiff by granting her reliefs including that of confirmation of possession in respect of the schedule-B land and for recovery of khas possession in respect of schedule-C land without first determining the question of entitlement of each of co-owners as to their share in the paternal property followed by determination and/or declaration of separate possession in favour of each of the co-owners. The aforesaid exercise can be carried out only when a suit for partition is brought by any one or more of the co-owners in respect of the ancestral property. There can be no doubt that no such relief had been prayed for by the plaintiff nor as the court below gone into that aspect of the matter by framing any issue in that regard. Such being the position, the judgment and decree passed by the learned First Appellate Court is not sustainable in the eye of law inasmuch as the learned lower Appellate Court could not have declare exclusive right or possession of the plaintiff in the undivided property for the reasons indicated hereinbefore.

On perusal of the judgment passed by the Appellate Court below it is seen that while discussing the issue No. 4 the learned court below has drawn a conclusion that the plaintiff would be entitled to 1/7th share of the total land as claimed by her. On an arithmetic assessment, while it may not be wrong to say that the plaintiff would to entitled to 1/7th share in the property left behind by Ramesh Chandra Sikdar in view of the undisputed possession of fact that he had died leaving behind his wife Sumitra Bala Sikdar and six daughters including the plaintiff herein. However, what is the actual amount of property that had devolved upon the legal heirs of Ramesh Chandra Sikdar after his death and the question as to what would be the value of share inherited by each of the legal heirs is not a matter that can be conclusively declared in a proceeding except in a suit for partition of undivided property. These are the questions that will have to be gone into by the court once there is a suit filed by any one or more of the co-owners seeking partition of the joint property.

There is yet another aspect of the matter which needs to be gone into in the present order and that is as regards the probate granted in respect of the registered will executed by the mother of the plaintiff in favour of defendant No. 1 to 5. It can be seen from the record that the plaintiff had raised a question regarding competence and testamentary capacity of her mother Sumitra Bala Sikdar to bequeath the entire area of land measuring 13B-0K-16L in favour of defendant No. 1 to 5 in view of the fact that after the death of Ramesh Chandra Sikdar, Sumitra Bala Sikdar inherited only 1/7th share of the property left behind by her deceased husband. Be that as it may. It is the settled law that in a probate proceeding the court is required to consider the question of genuineness and/or due execution of the will and not the question as to whether the same conveys title and interest in the land in accordance with law. In that view of the matter, the issue that is sought to be raised by the plaintiff in the present proceeding as regard the testamentary capacity of Sumitra Bala Sikdar to bequeath the entire area of 13B-0K-16L of land including all questions pertaining to title over the land would now be a question open for decision by a competent court in any proceeding brought by the co-sharer for partition of the ancestral property if and when the same is done so.

In view of the above, the judgment and decree passed by the First Appellate Court stands interfered with. It is however, made clear notwithstanding the judgment and order passed in the present appeal it will be open to any of the co-sharer including the plaintiff to bring in appropriate suit/proceeding for partition of the joint paternal property, if the same is otherwise permissible under the law. In the event of such partition suit being filed before the competent court, the same will be decided on merit without being influenced by any observation made by this court.

With the above observation, the appeal stands allowed to the extent indicated above. There will be no order as to cost. Registry to send back the LCR.