Ram Naresh Giri vs Krishnawati Devi And Others

Meenakshi Madan Rai, J

Aggrieved with the Judgment in Title Suit No.02 of 2016, dated 31.12.2018, of the Learned District Judge, Special Division-I, Sikkim at Gangtok,

whereby the Learned Trial Court dismissed the Appellant‟s Suit, the Appellant assails it herein.

2.(i) Learned Counsel for the Appellant advanced the argument that undisputedly the Appellant‟s father Thakur Giri had three sons, the Appellant

being his second son. Suresh Giri the eldest, is untraceable since 1996 and is the husband of Respondent No.1. She is the mother of Respondents No.2

and 3. Respondent No.4 the third son, suffered from mental illness from the year 2000 to 2005. That, in 1998, the Appellant‟s father was allotted a

plot of land measuring 12 feet x 10 feet vide Exhibit 1, by the Government of Sikkim wherein the Appellant constructed a four storeyed RCC building

with his finances to the exclusion of his father and brothers. That, the dispute has arisen on account of inequitable distribution of the First Floor by their

father, wherein two shops are being run by Respondents No.2 and 4 but a portion thereof was not allotted to the Appellant who claims one-third share

in it. It was urged that in the alternative, the Respondents are liable to compensate him monetarily for his financial investment in the construction. That,

the Appellant furnished sufficient evidence before the Learned Trial Court to establish his case, which was however disregarded. Even assuming that

the evidence was inadequate, by right he was entitled to one-third share in his father‟s property, which was denied to him. The Learned Trial Court

reasoned that Exhibit A said to be a “Banda Patra†executed by the Appellant‟s father in their presence, had distributed the property at his

discretion. That, the Learned Trial Court failed to appreciate that Exhibit A was executed by the “Sikkim Bihari Jagran Manch, Branch

Singtam, East Sikkim†and not executed between the father and his sons only, dividing the property in metes and bounds. While drawing the

attention of this Court to the determination of the Issues framed, it was contended that Issues No.3 and 4 were erroneously concluded observing that

the Appellant was not entitled to a share of the Schedule “B†property in the Schedule “A†building, the parties having been given their

respective shares therein. That, the Learned Trial Court failed to appreciate that Thakur Giri, in his evidence Exhibit G, before the Sub Divisional

Magistrate, East District at Gangtok, had stated clearly that he would draw up a “Will†later for distribution of the property and Exhibit A was

only a stop gap arrangement for the purposes of residence and business not ownership, therefore the question of the Appellant having been allotted his

respective share did not arise. That, although the Learned Trial Court relied on Exhibit G, it chose to ignore the deposition with regard to legal

distribution of the said property.

(ii) In the next leg of his argument, Learned Counsel for the Appellant contended that the Learned Trial Court erred in concluding that the Appellant

had not constructed the Schedule “A†building when, in fact, adequate evidence including documentary evidence was furnished to buttress this

point, hence the Judgment of the Learned Trial Court be set aside and the Appellant be given his fair share.

Repelling the arguments of the Appellant, Learned Counsel for the Respondents submitted that in Prayer “a)†of the Plaint, he seeks one third-

share on the First Floor of the building to be given to him for his absolute occupation and use, while in Prayer “b),†he seeks an order in his favour

directing the Respondents to pay him monetary compensation for the investment he had made in the building. That, the Prayers are contradictory for

the reason that either he ought to claim one-third share in the property, or monetary compensation for the investment made by him. Further, till his

father was alive, he made no claims of financial investment, such claims have arisen post his father‟s demise in 2013, the Suit having been filed on

15.01.2016, sans explanation for the delayed filing. That, the bone of contention is Exhibit A, dated 26.03.2006 but this document, with clarity, indicates

division of the self-acquired property of Thakur Giri equally between his three sons. Paragraph “3.†of Exhibit A categorically indicates that

although two shops were given to his two sons, one Paan Gomti (betel shop) was given to the Appellant, thereby providing all of them with business

avenues. Rather fairly, Thakur Giri had elucidated in Exhibit A that should the Paan Gomti come to be closed by the Government then the two shops

in the First Floor would be divided into three and the Appellant given one of the shops. Exhibit A was duly signed by Thakur Giri and the Appellant‟s

brothers Suresh Giri and the Respondent No.4. Despite his presence at the meeting, the Appellant refused to sign on the document which, in any

event, is of no consequence since his father had chosen to distribute his self-acquired property as he saw best. If the Appellant was disgruntled by

such distribution, he ought to have assailed it during the lifetime of his father apart from the fact that all the sons, including the Appellant, acted upon

the contents of Exhibit A and took possession of the respective floors allotted to them in consonance with Exhibit A. That, there is no denial by the

Appellant that Schedule “A†was a self-acquired property neither was any evidence furnished to prove the contrary. The vehement claim that the

Appellant had incurred financial expenditure in the construction, failed to find support in the evidence brought forth by him as all such vouchers

pertained to the year 2006, whereas the Schedule “A†premises were concededly completed in the year 2004, fortified by the fact that no

documentary evidence emanated to establish that he had any source of income at the relevant time. In light of the arguments canvassed, the Judgment

of the Learned Trial Court warrants no interference and the Appeal deserves a dismissal.

The submissions advanced by Learned Counsel for the parties were heard at length and duly considered. The pleadings, all evidence, documents on

record and the impugned Judgment have also been perused.

Before embarking on a discussion on the merits of the matter, we may briefly refer to the facts of the case. The Appellant as Plaintiff, filed a Suit

for Partition, Declaration, Recovery of Possession and other Consequential Reliefs. The Appellant‟s father vide Exhibit A, divided Schedule “Aâ€

property viz. one four storeyed RCC building, measuring 12 feet x 10 feet, at Singtam Bazaar, East Sikkim, amongst his sons i.e. the Appellant,

Respondent No.4 and one Suresh Giri the husband of Respondent No.1. The building was constructed on the self-acquired property of Thakur Giri,

the land being an allotment made by the Urban Development and Housing Department, Government of Sikkim vide Exhibit 1, dated 28.10.1998.

Schedule “B†premises which houses two shops, were allotted to Respondent No.1‟s husband and to Respondent No.4. The Appellant is

aggrieved that he was not allotted shop space in the Schedule “B†premises. His additional grievance is that he is entitled to one-third share

thereof, as he has solely constructed the Schedule “A†building apart from which he claims monetary compensation for his financial investment in

Schedule “A.â€​ Hence, the prayers in the Plaint inter alia as follows:

“a) Transfer of absolute/rightful possession in respect of proportionate share i.e. 1/3 on the first floor (Shop rooms) of the said building in his name

for his absolute occupation and use.

b) An order may kindly be passed in favour of the Plaintiff, directing the Respondents to pay the commensurate amount of their share on account of

the construction materials used/purchased by the Plaintiff during the construction of the said building, the said amount may kindly be paid to this

Plaintiff.

c) Any other relief or reliefs………………………â€​

The Respondents denied and disputed the claims of the Appellant and claimed that the Schedule “A†property being self- acquired, could be

distributed by Thakur Giri as he thought fit. That, the Appellant had no evidence to establish his claim of financing the construction of the building and

his claims being false and baseless, are liable to be rejected with exemplary costs.

The Learned Trial Court settled the following issues for determination:

“(1) Whether the suit is maintainable? (OPP)

(2) Whether the Plaintiff had constructed the Schedule-A building without any help or investment from the Defendants or his father Late

Thakur Giri? And if so, whether he is entitled to be reimbursed for the expenses incurred by him(particularly, for the portions under

occupation of the Defendants)? (OPP)

(3) Whether the Plaintiff is entitled to one-third share of the Schedule B property i.e., the first floor of the Schedule A building? (OPP)

(4) Whether the Schedule B property was given to the Defendant No.4 and Late Suresh Giri(husband of Defendant No.1 and father of

Defendants No.2 & 3) during the partition done by their father Late Thakur Giri on 26.03.2016(sic)? (OPD)â€​

The Appellant filed his Evidence-on-Affidavit as PW1 and that of his seven witnesses viz. PW2 Parsuram Giri, PW3 Prabhunath Giri, PW4 Dhan

Kumar Kami, PW5 Dawa Tamang, PW6 Ram Shankar, PW7 Sambhu Giri and PW8 Basisth Singh. The Respondents filed the Evidence-on-Affidavit

of Respondent No.3 as DW1 and their witnesses DW2 Gayatri Devi, DW3 Nanda Kishore Prasad and DW4 Basanti Giri.

9.(i) After examining the evidence of the witnesses and hearing the arguments of Counsel for the parties, the Learned Trial Court took up Issue No.2

first for discussion. The Court examined the certified copies of various vouchers/payments (Exhibit 4 to Exhibit 18) and found that Exhibits 5, 7, 11, 13

and 16 were prepared on various dates in the year 2006, two years after completion of the Schedule “A†building, these documents resultantly did

not support the Appellant‟s case. Exhibits 8 and 9 revealed various sums of money were taken by the Appellant but as loan in his father‟s name. The

authors of Exhibits 4, 6, 12, 14, 15, 17 and 18 were not produced before the Court by the Appellant. Exhibit 10 was discarded by the Court for the

reason that it was improbable that accounts from July, 1999 to July, 2004 would have been maintained on a single slip of paper. Exhibit 37, said to be

admissions by Respondents No.2 and 3 of the fact that the Appellant had incurred expenditure for construction of the Schedule “A†building,

were disregarded by the Learned Trial Court lacking substantiation of the claims as required by the provisions of the Indian Evidence Act, 1872.

Exhibit 38 was also rejected as the author of the document was not produced as a witness. On the other hand, the Court observed that the

Respondents had failed to prove that there was any financial contribution made by them towards the construction of the Suit building which, it

emerged in evidence, was solely constructed by Thakur Giri as proved by Exhibit B, a Mortgage Deed, indicating that he had obtained loan from a

financial Institution viz. SIDICO in Sikkim after mortgaging the Schedule “A†property. Exhibit D, which was produced by the Respondents to

prove that Thakur Giri had taken loan from his daughter Gayatri Devi for construction of the Third Floor of the Schedule “A†building, was

rejected having been found suspicious, as the Stamp Paper on which the loan agreement was executed, was admittedly manufactured by the Sikkim

Government in the year 2018, whereas the execution of the contents were said to have been prepared and signed in 2004. Resultant, Issue No.2 was

decided in the negative.

(ii) Issues No.4 and 3 were next taken up together and it was observed that vide Exhibit A, Thakur Giri had distributed the various floors of the Suit

building amongst his sons. That, the property was neither joint family property nor ancestral property, in which the sons of Thakur Giri would have any

interest while he was alive. That, Thakur Giri having distributed the various floors of the Suit building vide Exhibit A, amounted to irrevocable license in

favour of his sons in terms of Section 52 of the Indian Easements Act, 1882 and the Appellant was not entitled to any share in the First Floor of the

Suit building. Issue No.4 was decided in the affirmative and Issue No.3 in the negative.

(iii) On Issue No.1, the Learned Trial Court concluded that in view of the findings on the various Issues, the Suit cannot be held as maintainable and

the Issue decided accordingly.

The Issues that arise for determination by this Court are;

Whether the Appellant is entitled to one-third share in the Schedule “B†premises which exists in Schedule “A†building, the self-acquired

property of his father? and

Whether the Appellant constructed the Schedule “Aâ€​ building by investing financially to the exclusion of his father and brothers?

While considering the first Issue as settled by this Court supra, the undisputed fact is that the property is the self-acquired property of Thakur Giri

having been allotted to him vide Exhibit 1. Consequently, vide Exhibit A he distributed the property amongst his sons and the contents of Exhibit A

have been duly proved and admitted by the parties. It is now settled law that the father has the prerogative to distribute his self-acquired property as

he desires. In this context, beneficial reference may be made to the decision of the Hon‟ble Supreme Court in C.N. Arunachala Mudaliar vs. C.A.

Muruganatha Mudaliar and Another AIR 1953 SC 495, wherein it was held inter alia as follows;

“8. For a proper determination of the question, it would be convenient first of all to refer to the law laid down in Mitakshara in regard to

the father's right of disposition over his self-acquired property and the interest which his sons or grandsons take in the same. Placitum

27, Chapter I, Section 1 of Mitakshara lays down:

“It is settled point that property in the paternal or ancestral estate is by birth, though the father has independent power in the disposal of effects

other than the immovables for indispensable acts of duty and for purposes prescribed by texts of law as gift through affection, support of the family,

relief from distress and so forth; but he is subject to the control of his sons and the rest in regard to the immovable estate, whether acquired by

himself or inherited from his father or other predecessors since it is ordained, „though immovables or bipeds have been acquired by man himself, a

gift or sale of them should not be made without convening all the sonsâ€. Mitakshara insists on the religious duty of a man not to leave his family

without means of support and concludes the text by saying: “They who are born and they who are yet unbegotten and they who are still in the

womb, require the means of support. No gift or sale should therefore be made.â€​

Quite at variance with this precept which seems to restrict the father's right of disposition over his self-acquired property in an

unqualified manner and in the same way as ancestral lands, there occur other texts in the commentary which practically deny any right

of interference by the sons with the father's power of alienation over his self-acquired property. Chapter 1, Section 5, Placitum 9 says:

“The grandson has a right of prohibition if his unseparated father is making a donation or sale of effects inherited from the

grandfather: but he has no right of interference if the effects were acquired by the father. On the contrary he must acquised, because

he is dependent.â€​

The reason for this distinction is explained by the author in the text that follows:

“Consequently the difference is this: although he has a right by birth in his father's and in his grandfather's property; still since he is

dependent on his father in regard to the paternal estate and since the father has a predominant interest as it was acquired by himself,

the son must acquiesce in the father's disposal of his own acquired property.â€​

………………………………………………....The question came pointedly for consideration before the Judicial Committee in the case of

Rao Balwant v. Rani Kishori [25 IA 54] and Lord Hobhouse who delivered the judgment of the Board, observed in course of his judgment that in the

text books and commentaries on Hindu law, religious and moral considerations are often mingled with rules of positive law. It was held that the

passages in Chapter I, Section 1, Verse 27 of Mitakshara contained only moral or religious precepts while those in Section 5, Verses 9 and 10

embodied rules of positive law. The latter consequently would override the former. It was held, therefore, that the father of a joint Hindu

family governed by Mitakshara law has full and uncontrolled powers of disposition over his self-acquired immovable property and his

male issue could not interfere with these rights in any way. This statement of the law has never been challenged since then and it has

been held by the various High Courts in India, and in our opinion rightly, that a Mitakshara father is not only competent to sell his self-

acquired immovable property to a stranger without the concurrence of his sons [Vide Muddun v. Ram, 6 WR 71] but he can make a gift

of such property to one of his own sons to the detriment of another [Vide Sital v. Madho, ILR 1 All 394] ; and he can make even an unequal

distribution amongst his heirs [Vide Bawa v. Rajah, 10 WR 287].

……………………………………………………………………………………..

In view of the settled law that a Mitakshara father has right of disposition over his self-acquired property to which no exception can

be taken by his male descendants, it is in our opinion not possible to hold that such property bequeathed or gifted to a son must

necessarily, and under all circumstances, rank as ancestral property in the hands of the donee in which his sons would acquire co-

ordinate interest. ……………………………The other ground put forward is that the definition of “self-acquisition†as given by

Mitakshara does not and cannot comprehend a gift of this character and consequently such gift cannot but be partible property as between the donee

and his sons.â€​

(Emphasis supplied)

More recently in Govindbhai Chhotabhai Patel and Others vs. Patel Ramanbhai Mathurbha i(2020) 16 SCC 255 , the Hon‟ble Supreme

Court, observed inter alia thus;

“5. The findings recorded by the High Court, inter alia, are that execution of the gift deed was not specifically denied in the suit filed. Therefore, it

is not necessary for the donee to examine one of the attesting witnesses in terms of the proviso to Section 68 of the Evidence Act, 1872 (for short

“the Evidence Actâ€). It is also held that the suit property is not ancestral property. The property was purchased by Ashabhai Patel, father of the

donor and it is by virtue of will executed by Ashabhai Patel, property came to be owned by the donor in the year 1952-1953. The High Court, thus,

held that the donor was competent to execute the gift deed dated 15-11-1977 as the property was not ancestral in the hands of donor. The relevant

findings on such questions which arose for consideration in the second appeal, read as under:

“………………………………………………………………

The case of the plaintiffs is very specific. According to them, the suit properties were purchased by their grandfather and those

properties came to be devolved upon their father by testamentary disposition i.e. on the strength of the will of their grandfather. The

Hindu law, as it stands today, clearly postulates that if it is a self-acquired property of the father, it falls into the hands of his sons not as

coparcenary property, but would devolve on them in their individual capacity. Where the property is a self-acquired property of the

father, it falls into the hands of his son in his individual capacity and not as coparcenary property in such case son's son cannot claim

right in such property.

* * *

……………………………………………………………………………

In view of the above, I hold that the suit properties were self-acquired properties of the father of the plaintiffs, and in such

circumstances, it was open for the father of the plaintiffs to execute the gift deed in favour of the defendant.â€​

………………………………………………………………â€​

(Emphasis supplied)

The ratiocinations extracted supra propound with clarity the position of law when the property is self-acquired by the father and he has the right of

disposition over it, to which no exception can be taken by his sons/male descendants, as in the instant case.

13.(i) Exhibit A has been executed by Thakur Giri in the presence of the “Sikkim Bihari Jagran Manch†and in the presence of his two sons

and he was clothed with the discretion to dispose of his self-acquired property as he deemed fit. Further arguments on this point stand truncated in

view of the established position of law, suffice it to add that neither can the Appellant seek an equitable distribution of the Schedule “A†building

nor does he have any entitlement to it merely by virtue of being the son of Thakur Giri and he can lay no claim of equitable share in it. If Thakur Giri

chose not to execute a Will after execution of Exhibit A, the Appellant has no authority to question his decision.

(ii) PW3 runs a stationery business and claimed to have loaned Rs.45,208/- (Rupees forty five thousand, two hundred and eight) only, to the Appellant

and construction materials including bricks. Considering that he runs a stationery business, it is not explained as to how he would be in a position to

supply construction materials to the Appellant. Exhibit 10, said to support this transaction is dated 15.11.2004 but does not specify that it was for

construction of the Schedule “Aâ€​ building.

(iii) As observed by the Learned Trial Court, it is highly unlikely that accounts from the year July, 1999 to July, 2004 could have been maintained on a

single slip of paper with no history of repayment during the five years. Evidently, it is a document prepared for the purposes of this Suit and cannot be

said to be unimpeachable. Exhibits 5, 7, 13 and 16 came into existence after October, 2006 except Exhibit 11 which is dated 20.10.2006. Although the

Appellant relied on Exhibit 8 and Exhibit 9 as loan documents, however, PW2 while identifying Exhibit 9, deposed that the document revealed that

Rs.8,000/- (Rupees eight thousand) only, cash had been taken in the name of the Appellant‟s father from one Balbachan Giri as loan for construction

of a house. PW7 Sambhu Giri, son of Balbachan Giri also identified Exhibit 9 and supported the evidence of PW2 to the extent that the loan was taken

by the Appellant in the name of his father. It is not their evidence that the Appellant had taken the loan personally. The evidence of the masons, PW4

and PW5 who deposed that payments used to be made by the Appellant during the construction of Schedule “A†building, does not establish that

the payment incurred for their wages was his exclusive expenditure, this is fortified by the fact that the Appellant has not furnished evidence to reveal

his income at the relevant time. If the Appellant was constructing the house single handedly, why would the need arise for him to take monetary loan

from all and sundry in his father‟s name? Exhibits 4, 6, 12, 15, 17 and 18 have no probative value, the contents of the documents remaining unproved.

Schedule “A†building was completed in the year 2004, the money receipts are of 2006, and therefore can be met with nothing but disbelief and

points to manufacturing of evidence rather unsuccessfully. The Learned Trial Court has correctly concluded that Exhibits 5, 7, 11, 13 and 16 were

prepared post the construction viz. in the year 2006, two years after construction of Schedule “A†building which admittedly was completed in

2004. Exhibits 23 and 24 are Government Revenue Receipts in the name of Thakur Giri, dated 07.04.2003 and 06.01.2000 respectively, whereby he

has deposited Ground Rent. These documents were identified by the Appellant himself and buttress the fact that as owner of the building on the

allotted land, he was responsible for payment of the Ground Rent.

(iv) The issue of inequitable distribution of the Schedule “A†building and of the Appellant having financed it, arose only after the death of Thakur

Giri. Even during the preparation and execution of Exhibit A, the Appellant made no such claim. This fact by itself fails to lend credence to the belated

claims of the Appellant. At this juncture, it may be remarked that reference to Section 52 of the Indian Easements Act of 1882, pertaining to License,

in Paragraph 44 of the impugned Judgment is uncalled for and irrelevant, for the reason that License does not create any interest in the property which

it relates. It only confers legality on an act which would otherwise become unlawful. The issue in the Suit is not concerned with License at all. Having

said that, both the Issues supra are thus determined against the Appellant.

That apart, although it is not the subject matter of the Suit but from the evidence it can be culled out that the Appellant though not given a shop in

the four storeyed building, was given a Paan Gomti in Singtam Bazaar for the purposes of running his business.

Hence, in consideration of the entirety of the facts and circumstances hereinabove, I find that the Judgment of the Learned Trial Court brooks no

interference.

Appeal fails and is dismissed.

RFA disposed of accordingly, as also I.A. No.01 of 2019.

No order as to costs.

Copy of the Judgment be sent to the Learned Trial Court for information, along with its records.