Pannalal Ghosh and Others vs Nani Gopal Ghosh and Others

Deepak Gupta, C.J.

By means of this judgment, it is proposed to dispose of RFA No. 06 of 2008 and CRP No. 47 of 2008 since they are between same parties and can be conveniently disposed of by one judgment.

RFA No. 06 of 2008 arises out of Title Suit No. 38 of 1999 filed by Sri Nani Gopal Ghosh. This is a suit for partition mainly relating to the properties inherited by the parties from Sri Akhil Chandra Ghosh, predecessor-in-interest of the parties, who died in the year 1964. He left behind three sons, Nani Gopal Ghosh, Pannalal Ghosh and Jaharlal Ghosh and five daughters Saraswati Ghosh (Biswas), Leela Rani Ghosh (Choudhury), Rama Rani Ghosh (Dasgupta), Rekha Ghosh (Biswas), Gita Rani Ghosh (Majumdar) and Purnima Ghosh (Sinha). When Akhil Chandra Ghosh died, his widow Priya Bala Ghosh was alive. However, she also expired in the year 1986, i.e. prior to the filing of the suit. In the suit filed by Nani Gopal Ghosh it is claimed that the property in schedule ''B'' was purchased by the three brothers jointly and partition of that property is also sought for.

The suit can be divided into 4 parts. Nani Gopal Ghosh claims that out of the six sisters, Rama Rani Ghosh, Rekha Ghosh, Gita Rani Ghosh and Purnima Ghosh had executed a deed of relinquishment on 9th February, 1965 and relinquished all rights and interests in the property of their father late Akhil Chandra Ghosh and they completely separated themselves from the joint family status and property. Therefore, according to the plaintiff only the plaintiff Nani Gopal Ghosh, defendant No. 1, Pannalal Ghosh, defendant No. 2, Jaharlal Ghosh, defendant No. 3, Saraswati Ghosh (Biswas) and defendant No. 4 Leela Rani Ghosh (Choudhury) were entitled to one-fifth share in the property left behind by their father Akhil Chandra Ghosh including the share of their mother Priya Bala Ghosh.

The second part of the suit relates to Schedule ''B'' property. There is no dispute with regard to this. As far as this Schedule ''B'' property is concerned, the claim of the plaintiff was that this property was purchased only by the three brothers jointly and therefore, the three brothers Nani Gopal Ghosh, Pannalal Ghosh and Jaharlal Ghosh were entitled to one-third share in the said properties.

The third portion of the suit relates to Schedule ''C'' properties. The case of the plaintiff was that his brother Pannalal Ghosh for himself and as power of attorney of the sisters executed a large number of sale deeds in favour of other proforma respondents and sold land out of the joint holding to various persons. The claim of the plaintiff was that Schedule ''C'' land sold by Pannalal Ghosh should be deducted from the share of Pannalal Ghosh and the sisters Saraswati Ghosh (Biswas) and Leela Rani Ghosh (Choudhury).

The 4th part of the suit relates to Schedule ''D'' property which comprises of land on which a petrol pump and kerosene godown are situated. The admitted case of the parties is that initially this business was a joint business and after a partition was entered into between the parties, the petrol pump and kerosene godown at Kailashahar fall to the share of Nani Gopal Ghosh. The businesses of similar nature at Kanchanpur and Kumarghat jointly were given to Pannalal Ghosh. The businesses of similar nature of petrol and kerosene at Kamalpur fell to the share of Jaharlal Ghosh. Therefore, the businesses were divided. The business at Kailashahar came to the share of Nani Gopal Ghosh, businesses at Kumarghat and Kanchanpur fell to the share of Pannalal Ghosh and the business at Kamalpur fell to the share of Jaharlal Ghosh. The issue that has been raised by the defendants is that though the businesses may have been divided the land is still part of the joint holding.

The suit was contested by Pannalal Ghosh on behalf of himself and on behalf of his sisters who had executed power of attorney in his favour. Jaharlal Ghosh filed a written statement but this written statement virtually supported the case of the plaintiff Nani Gopal Ghosh. The Vendees of the sale deeds which are subject matter of the Schedule ''C'' property were made proforma defendants. Some of them filed written statement but all of them claimed that they were purchasers for valuable consideration and therefore their rights should not be affected. Evidence was led and only two witnesses have been examined. The plaintiff Nani Gopal Ghosh appeared as his own witness and the defendant Pannalal Ghosh appeared on his own behalf and on behalf of the persons who be represented as power of attorney i.e. his sisters.

The suit was contested by Pannalal Ghosh on various grounds. His first contention was that the relinquishment deed had not been executed by the sisters and in the alternative it was prayed that the relinquishment deed had never been acted upon by the parties including the plaintiff Nani Gopal Ghosh and therefore it did not bind the sisters. It was therefore claimed that the remaining 4 sisters also had equal shares in the property and therefore, the plaintiff and defendants 1 to 8 were each entitled to one-ninth share of the property left behind by Sri Akhil Chandra Ghosh including the land which fell to the share of Priya Bala Ghosh.

The third contention was that a large number of properties which were joint properties had not been included in the Schedule and therefore, the suit for partition was not maintainable because all the properties had not been included in the partition suit.

After the evidence was recorded, the learned trial Court decreed the suit and held that the plaintiff and defendants 1 to 4 will get one-fifth share each in Schedule ''A'' land after deducting ''D'' Schedule land which was declared to be the personal land of the plaintiff. He further directed that the land described in ''C'' Schedule will be calculated within the aforesaid shares of defendants 1, 2, 3, 4 and the ''C'' Schedule land was sold by them from the joint property. He also held that each of the plaintiffs would get one-third share in Schedule ''B'' land. Lastly, he declared that Schedule ''D'' land was the personal land of the plaintiff.

Some developments have taken place after filing of the appeal. Pannalal Ghosh expired on 11th June, 2012. He did not leave behind any widow or children. He died intestate and therefore, as per the Hindu Succession Act, his legal heirs are none else but his brother, plaintiff Nani Gopal Ghosh and the four sisters Smti. Lila Rani Choudhury, wife of Sri Pranesh Ranjan Choudhury, Smti. Rekha Biswas, wife of late Monoranjan Biswas, Smti. Purnima Sinha, wife of late Pulak Ranjan Sinha, Smti. Saraswati Biswas, wife of Sri Hiranmoy Biswas. I would have thought that this long drawn out battle between the brothers and sisters would come to an end on the death of the brother whose only heir is the second brother and surviving sisters but now the sisters who are represented by Pannalal Ghosh want to continue with the proceedings. It would also be pertinent to mention that Jaharlal Ghosh is dead and he is survives by his wife Manju Rani Ghosh and only son Jayanta Ghosh. Defendant No. 5 Rama Rani Dasgupta is also dead and is survived by her son and three daughters but one of the daughters has also died, who is represented by her children. Gita Rani Ghosh (Majumder) has also died and is survived by her legal representatives.

As far as the sisters are concerned, especially, the living sisters Rama Rani Dasgupta, Rekha Biswas, Gita Rani Ghosh (Majumder), Purnima Ghosh (Sinha) (which terms shall includes their legal heirs), their main challenge is to the relinquishment deed. They have not challenged the execution of the sale deeds which were made on their behalf by Pannalal Ghosh which are part of Schedule of ''C''. They do not claim any right in land which is part of Schedule ''B''. They may have some right in the property which is part of Schedule ''D'' if it is held not to be the personal property of Nani Gopal Ghosh but in that event the property under the businesses at Kumarghat, Kanchanpur and Kamalpur will also be part of the joint property. The main issue which arises is whether the relinquishment deed was executed and whether it was acted upon.

As far as execution of the relinquishment deed is concerned though in the written statement it was mentioned that the sisters had not executed the relinquishment none of the sisters appeared in the witness box. However, both in the written statement as well as in the statement, Pannalal Ghosh stated that the relinquishment deed was never acted upon by any of the parties and that in fact Nani Gopal Ghosh in various litigations had impleaded the sisters as the legal heirs of their father Akhil Chandra Ghosh which clearly indicated that the relinquishment deed had not been acted upon. The sisters were not represented by separate counsel at that stage and they were represented by their brother and attorney Pannalal Ghosh. I also find that at various times, the sisters had executed powers of attorney sometimes in favour of one brother and sometimes in favour of the other brother. Therefore, I am of the opinion that the sisters should get at least one opportunity to put forth their case.

As far as the learned trial Court is concerned though the learned trial Court has held that the relinquishment deed was executed and was acted upon, there is no reasoning whatsoever given in the judgment. The learned trial Court has not made reference to any of the documents referred to by Pannalal Ghosh in his testimony to support his version that the relinquishment deed was never acted upon. This Court at this stage is not giving finding on merits because I proposed to remand the case on this issue. However, a perusal of the judgment of the learned trial Court clearly shows that this is a very casually written judgment. The evidence has not been discussed and if Pannalal Ghosh had been alive, I may have been inclined to set aside the entire judgment. However, since Pannalal Ghosh has died and his share now stands in the name of the plaintiff Nani Gopal Ghosh and four sisters who were alive at the time of his death, no purpose will be served in this regard.

The only issue which requires to be determined is whether the sisters i.e. Rama Rani Dasgupta, Rekha Biswas, Gita Rani Majumder, Purnima Sinha had executed the relinquishment deed and whether this relinquishment deed was acted upon and whether they still have any share left in the property which is subject matter of Schedule ''A'' and ''D'' of the suit. As far as Schedule ''C'' property is concerned since Pannalal Ghosh has died whatever Pannalal Ghosh has sold has been sold and plaintiff Nani Gopal Ghosh can get nothing more than that. However, even with regard to these properties, I would like to clarify one issue. It is not disputed that these properties have been sold. Therefore, these properties mentioned in Schedule ''C'' have to be deducted from the share of Pannalal Ghosh and the sisters on whose behalf he sold the property. The properties which are part of Schedule ''C'' were sold by Pannalal Ghosh on his own behalf and acting as power of attorney on behalf of some of the sisters. As far as Saraswati Biswas and Leela Rani Choudhury are concerned, they definitely have a share in the land. The only question is whether they have one-fifth share each or one-ninth share each. As far as Rama Rani Dasgupta, Rekha Biswas, Gita Rani Majumder, Purnima Sinha are concerned, they will either have no share in the land or they will have one-ninth share in the land. In case, the relinquishment deed is held to be valid then they will have no share in the land. If the relinquishment deed is held to be invalid or not acted upon then they will have one-ninth share in the land. While considering the share of the sisters, the land sold on behalf of each one of them by Pannalal Ghosh shall be taken into consideration and deducted from their shares.

Next comes the issue raised by Mr. D.K. Biswas, learned counsel that a large number of properties were not made part of the suit. These 26 properties are described in detail. The defendant No. 1 Pannalal Ghosh in his evidence did not give details of these properties but in the written statement details are given but these details all relate to decrees which were passed in favour of Akhil Chandra Ghosh. It is not clear whether their decrees have been executed or not. On perusal of the averments made in the written statement, I find that all these decrees were executed much prior to 1964 and even when the suit was filed in the year 1999, the limitation for executing these decrees had expired. Therefore, these properties cannot be subject matter of the joint property because the executions have become time barred. There is nothing tangible left in the joint holding. It was contended by Mr. Biswas, learned counsel that the main purpose of bringing these decrees was to show that Nani Gopal Ghosh as Karta of the Hindu un-divided family had been negligent in the performance of his duties and therefore, the land forming part of the decree should be deducted from his share. I am not in agreement with this submission and the reason for this is that this suit has been filed in 1999 and all these decrees were obtained more than 12 years prior to the filing of the suit. Pannalal Ghosh could have at any time asked his brother what was happening to these decrees. I have also been informed that with regard to some of the decrees there was some litigation and it has been held that the litigation filed by Pannalal Ghosh was time barred and rejected. Therefore, I feel it would be unnecessary waste of time to include these properties which are now in the possession of some other persons in the joint holding. Therefore, the suit is maintainable.

The last contention is that the immovable property on which the petrol pump and kerosene godowns of the three brothers are situated are not part of the business which was divided between them and the land is still part of the joint holding and the sisters also have a share in the land. As far as the brothers are concerned, they have divided the business amongst themselves and they have also taken the land with the business. Whether the sisters are bound by that agreement of the brothers is something which the trial Court has not decided and it was required to decide this issue.

It has been contended by Mr. D.K. Biswas, learned counsel that Nani Gopal Ghosh has obtained a share which is much beyond the permissible ceiling limit under the TLR & LR Act and therefore, only the amount of land which is permissible to him under the TLR & LR Act should be granted to him and rest should be divided amongst the remaining share holders. This contention is without any merit whatsoever. If Nani Gopal Ghosh has any share in the property that has to go to him and thereafter, if his total holding exceeds the ceiling limit then the land will vest in the State and cannot go to the remaining share holders.

Therefore, the appeal is partly allowed and the matter is remitted to the learned trial Court for only deciding the following issues:-

(i) Whether the relinquishment deed dated 9th February, 1965 was not executed by the four sisters namely, Rama Rani Dasgupta, Rekha Biswas, Gita Rani Majumder, Purnima Sinha?

(ii) If it is proved that the relinquishment deed was executed whether the relinquishment deed was not acted upon by the parties and is not binding upon these four sisters namely, Rama Rani Dasgupta, Rekha Biswas, Gita Rani Majumder, Purnima Sinha?

In case issues (i) and (ii) are decided against four sisters then they will have no share in the properties.

(iii) What is the share, if any, of the plaintiff and defendant Nos. 1 to 8 in the suit property?

(iv) Whether the land forming part of ''D'' Schedule is part of the joint holding or is exclusive land of the brother?

After determining the shares of the parties in the property the share of Pannalal Ghosh shall be divided between Nani Gopal Ghosh and the four surviving sisters in equal shares in view of the finding given by this Court.

The learned trial Court is directed to issue notices at the addresses given in the plaint and written statement to the parties by registered speed post. The matter is remitted to the learned trial Court only for the purpose of determining these issues. The findings given by this Court on other issues are binding on the trial Court and it shall proceed accordingly. The learned trial Court is directed to dispose of the suit at the earliest and in an event not later than 31st December, 2016.

The parties who are represented before this Court through counsel are directed to appear before the learned trial Court on 1st March, 2016. On the said date, the learned trial Court shall issue notices only to the brothers and sisters, who are not represented or their legal heirs. Notice shall be sent by registered speed post at the cost of the plaintiff to the addresses given in the plaint/written statement and in case, the notices are not received back within 30 days, it shall be presumed that they have been served and the matter shall be proceed accordingly. The sisters if they want to lead evidence can do so and they shall be given at the most two opportunities to do the same and thereafter, the plaintiff Nani Gopal Ghosh will have two opportunities to lead his evidence.

CRP No. 47 of 2008 arises out of Title Suit No. 25(P) of 2001 filed by Pannalal Ghosh and others i.e. his sisters for partition of the suit property, which is virtually the subject matter of dispute in Title Suit No. 38(P) of 1999. This suit was withdrawn. Though liberty was sought to file a fresh suit, liberty was not granted and this revision petition has been filed challenging the non-granting of liberty. In the application filed for withdrawal of the civil revision, it has been stated that the plaintiffs need to withdraw this partition suit (on condition to re-file) because another partition suit Title Suit No. 38(P) of 1999 between the same parties is pending in this Court. The second suit itself was not maintainable in my view. Pannalal Ghosh is dead. The sisters have been given a right to raise all the disputes in T.S. 38(P) of 1999 and therefore, this petition is dismissed.