Calcutta High Court (Appellete Side)
And Others vs Durga Chakraborty (Rakshit) on 11 March, 2025
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Appellate Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
And
The Hon'ble Justice Uday Kumar
F.A. No.89 of 2023
With
CAN 1 of 2019
(Old No: CAN 158 of 2019)
CAN 9 of 2024
Smt. Shefali Mallick, since deceased, her legal
heirs and representatives Smt. Laxmi Mallick
and others
Vs.
Durga Chakraborty (Rakshit), since deceased, her legal
heirs and representatives Sri Krishnendu Chakraborty
and others
For the appellant : Mr. Prasad Bhattacharyya
Mr. Prantick Ghosh
For the respondent : Mr. Rahul Karmakar
Mr. Sourav Guchhait
Heard on : 20.02.2025, 27.02.2025
05.03.2025,
Judgment on : 11.03.2025
Sabyasachi Bhattacharyya, J.:-
1. The present appeal has been preferred at the behest of the defendants
in a suit for declaration that a partition deed dated April 7, 1997 is void
ab initio, for declaration of the title and shares of the parties and for
partition as well as consequential reliefs. The learned Trial Judge, while
observing that the said deed of partition was void ab initio and as such
2the relief of declaration sought in respect thereof was superfluous,
arrived at the conclusion that the suit was not barred by limitation on
account of the said declaration having been sought beyond the
limitation period as stipulated in Article 59 of the Schedule to the
Limitation Act, 1963. Consequentially, the shares of the parties were
declared in preliminary form. Being thus aggrieved, the present appeal
has been preferred.
2. Learned counsel appearing for the appellants argues that the relief of
declaration was mandatory and the primary relief, since the partition
deed cast a cloud over the plaintiffs‟ title. Even if Article 59 of the
Limitation Act was not applicable, it is argued that the suit would be
governed by Article 113 of the Limitation Act which stipulated the
starting point of limitation to be when the right to sue accrues. Kamala,
plaintiff no.1, being a party to the deed, the right to sue accrued on the
date of execution and registration of the partition deed on April 7, 1979.
Hence, the suit of 2013 is palpably time-barred.
3. In support of his contentions, learned counsel cites Khatri Hotels
Private Limited and Another v. Union of India and Another, reported at
(2011) 9 SCC 126 and Prem Singh and Others v. Birbal and Others,
reported at (2006) 5 SCC 353. It is argued that unless the partition
deed, being Exhibit-13, is set aside, the plaintiffs are not entitled to
seek the other reliefs, including that of declaration of their shares by
ignoring the said partition deed and partition. Moreover, as evident
from the evidence of the parties, in particular the admissions of P.W.1
and P.W.5, the partition deed was acted upon by the parties.
3
4. Learned counsel cites Ranganayakamma and Another v. K.S. Prakash
(Dead) By LRs. and others, reported at (2008) 15 SCC 673 in such
context.
5. Learned counsel for the appellants also relies on the judgment of T.
Arivandandam v. T.V. Satyapal and another, reported at (1977) 4 SCC
467, in support of the contention that the limitation period cannot be
stretched on the basis of Exhibit-9, a legal notice dated October 3,
2012, since the cause of action first arose in the year 1979.
6. It is argued that the allegation that Lalita was the daughter of
Indumati, in which case the non-allocation of Lalita‟s shares in the
partition deed would vitiate the deed, has not been proved. P.W.3, who
sought to prove such relationship, was not a member of Lalita‟s family
and as such was not competent to prove the same. Also, Exhibit-19, a
letter given by the concerned Authority, does not prove the relationship
between Lalita and Indumati.
7. It is pointed out by learned counsel for the appellants that Kamala, the
alleged daughter of Lalita, admitted in her cross-examination that
Lalita was not her mother, which also ought to have been considered by
the learned Trial Judge.
8. Learned counsel for the respondents alleges that the existence of Lalita
is admitted by Exhibit-11, a letter written by the advocate of one of the
plaintiffs Mira Mallick. Such concession by the advocate is binding on
the defendants. In support of the said contention, learned counsel cites
Om Prakash v. Suresh Kumar, reported at (2020) 13 SCC 188.
4
9. It is argued that it is a settled proposition of law that the absence of
any provision of the share of one of the co-sharers (here, Lalita) vitiates
the partition deed, in support of which learned counsel cites
Pugazhenthi and another v. Sundari Ammal and others, reported at
2013 SCC OnLine Mad 318. Thus, the partition deed, it is submitted,
was void ab initio.
10. As the instrument was non est in the eye of law, there cannot be any
limitation period attached to the same. Learned counsel cites Kewal
Krishan v. Rajesh Kumar and others, reported at (2022) 18 SCC 489 in
support of such contention. Learned counsel also cites a judgment of
the Madras High Court in Vathapa Gounder and Others v. Thambayi
Ammal and others, reported at 1989 2 MLJ 67, in support of the
proposition that if a document is non est, the challenge to the same in
the plaint is superfluous and only a surplusage.
11. Learned counsel for the respondents also submits that such declaration
was the product of Mofussil pleadings, which are to be liberally
construed, as laid down in Narain Prasad Aggarwal (Dead) By LRs. v.
State of Madhya Pradesh, reported at (2007) 11 SCC 736.
12. The purported admission of Kamala that Lalita is not her mother is a
stray admission contrary to the rest of her evidence and, as such,
ought not to be lent credence to, it is argued.
13. Before adjudication of the matter, we are to consider the plinth of the
plaint case, which is that one Indumati Mallick and one Narayan
Rakshit were co-owners of the property. Indumati died, leaving behind
Gopeswar as her son and Lalita as her daughter. Lalita predeceased
5
Indumati, leaving behind her two daughters namely, Kamala and
Ashrukana. Ashrukana predeceased Kamala. Kamala, apart from being
the daughter of Lalita and inheriting her share, was also the wife of the
other original co-owner Narayan and accordingly got shares both
through Lalita (since her sister Ashrukana had predeceased her) and
through her husband Narayan, along with Kamala‟s daughter Durga.
14. On the other hand, the defence case is that Lalita was not the daughter
of Indumati and the latter, on her demise, left behind as her heir
Gopeswar as her only son/child. The defendants claim through
Gopeswar.
15. Upon considering the arguments of parties and the materials on record,
we come to the following conclusions under certain broad heads:
Limitation
16. For deciding whether the suit is time-barred, it is to be ascertained as
to whether the first relief claimed in the plaint, challenging the partition
deed dated April 7, 1979, was necessary or superfluous.
17. Section 31 of the Specific Relief Act provides that any person against
whom a written instrument is void or voidable and who has reasonable
apprehension that such instrument, if left outstanding, may cause him
serious injury, may sue to have it adjudged void or voidable and the
court may, in its discretion, so adjudge it and order it to be delivered up
and cancelled. Thus, the said provision does not make any distinction
between a void and a voidable document.
6
18. In the present case, the declaration sought regarding the partition deed
being null and void is squarely covered by Section 31(1) of the Specific
Relief Act, since the said document, if left outstanding, would adversely
affect the plaintiffs and would render the partition suit redundant, in
view of the property having already been partitioned by the said
registered deed of 1979. Thus, in order to get a fresh declaration of
shares and a partition decree, the partition deed already effected in
1979 was first to be negated, therefore making it mandatory for the
plaintiffs to seek such relief as a precondition for having the other
reliefs.
19. In such context, Article 59 of the Schedule to the Limitation Act, which
contemplates a suit to cancel or set aside an instrument, is attracted.
The limitation for filing such suit is three years from when the facts
entitling the plaintiff to have the instrument cancelled or set aside first
become known to him. Section 31 of the Specific Relief Act, read in
conjunction with Article 59 of the Schedule to the Limitation Act, thus,
made it mandatory for the plaintiffs to challenge the partition deed
within three years from its execution, since otherwise the same would
debar the partition suit.
20. The partition deed was executed and registered on April 7, 1979. The
original plaintiff no.1 Kamala, as P.W.1, in her cross-examination dated
November 7, 2014, categorically admitted that she had signed the
partition deed and was present throughout the registration of the same.
Thus, the cause of action for the suit arose on April 7, 1979 itself
7
whereas the suit was filed on March 7, 2013 and is, thus, palpably
time-barred.
21. The plaint, particularly in Paragraph Nos. 49 to 51, alleges that the
partition deed of 1979 was fraudulently obtained. However, the pivot of
the allegations are that Narayan, one of the parties thereto, was
defrauded, without however disclosing any particulars or specific
details of such fraud and/or as to how such fraud was perpetrated, as
mandated under Order VI Rule 4 of the Code of Civil Procedure. It was
never the plaint case that the deed was void since Lalita‟s share was left
out; thus, the evidence in that regard are beyond the pleadings and
hence, in any event, cannot be looked into.
22. The defendants/appellants cite Khatri Hotels Private Limited (supra),
which, however, was on Article 58 of the Limitation Act under which,
the limitation starts from when the right to sue first accrues, as
opposed to Article 59, where the limitation commences from when the
facts entitling the plaintiff to have the instrument cancelled first
become known to him. Thus, Khatri Hotels‟s case is not an authority
which is relevant to the present case.
23. In Prem Singh (supra), however, the Supreme Court held that Section
31 of the Specific Relief Act refers to both void and voidable documents.
It was laid down there that when a document is void ab initio a decree
for setting aside the same would not be necessary as it would be a
nullity in the eye of law. Once, however, a suit is filed for cancellation
of a transaction, it would be governed by Article 59 and if the same is
not attracted, the residuary Article (Article 113) of the Limitation Act
8
would be applicable. In the present case, the ratio of the said decision
applies, since the plaintiffs specifically sought a declaration and also
because the document could not be said to be void ab initio, since the
declaration was sought on the ground of fraud being perpetrated which,
only if proved, would make the instrument voidable.
24. The defendants/appellants cite Kewal Krishan (supra), where the facts
were that certain sale deeds were sham and void ab initio since no
consideration passed. Under the law, a sale without consideration is
void ab initio, in which context it was held that no declaration was
required to be sought separately. As opposed to the facts of the said
case, in the present case, the alleged fraud was required to be proved.
Also, the facts relating to whether Lalita was the daughter of Indumati
and at all had any share in the property were all factual questions, to
be proved on evidence and it cannot be said that the document-in-
question was void ab initio.
25. The judgment of a learned Single Judge of the Madras High Court in
Vathapa Gounder (supra) has been relied on by the respondents, where
it was held that the word „cancellation‟ implies that the person suing
should be a party to the document sought to be cancelled and
strangers are not bound by the document and are obliged to sue for
cancellation. In the said case, a person not having authority to execute
a deed had executed the same, in which circumstance it was held to be
a non-existent document.
26. Fact remains that in the said case, a stranger to the document had filed
the suit and as such the court held that no cancellation was required to
9
be prayed for. As an obiter dictum, the court observed that even if the
plaintiff is a party to the document but impugns it as sham and
nominal and void ab initio, he need not set aside the document.
27. In the present case, there is no question about the authority of the
person executing the impugned partition deed and as such, the said
principle does not apply. Rather, the plaintiff no.1 being a party to the
document, and the plaintiff no.2 being her daughter and claiming
through her, it was necessary for the plaintiff no.1 Kamala to seek such
declaration.
28. In Pugazhenthi (supra), a learned Single Judge of the Madras High
Court had held that since one of the co-sharers was not included in the
partition deed, the document was required to be set aside. However, in
the said judgment, notably, the court passed a declaratory decree to the
effect that the partition deed was invalid, null and void, hence
substantiating the view that even in such a case, a declaration is
required from the court to avoid the document.
29. Thus, in the facts of the case, the relief of declaration that the partition
deed dated April 7, 1979 was void was the principal relief and was
mandatorily required to be sought in order to get the consequential
reliefs of declaration of title/shares and partition.
30. Hence, since the suit was filed on March 7, 2013, long after the
limitation period of three years from the date of execution of the
document on April 7, 1979, particularly since plaintiff no.1, through
whom the plaintiff no.2 claimed, was also a party to the same, the suit
is palpably barred by limitation.
10
Mofussil pleadings
31. Learned counsel for the respondents relies on Narain Prasad Aggarwal
(supra) for the proposition that pleadings of Mofussil courts are to be
construed liberally. However, the relief of declaration regarding the
partition deed cannot brushed aside as Mofussil pleadings, since the
said pleading was mandatory within the contemplation of Section 31 of
the Specific Relief Act and in the facts of the case.
32. Moreover, the trial court at Barasat, District – North 24 Parganas does
not come within the contemplation of “Mofussil”, since the said Court is
in close proximity to the metropolis of Kolkata and in modern days, is
sufficiently populated by an erudite bar. Hence, the pleadings drafted
by counsel of the said Court cannot, by any stretch of imagination, be
treated to be “Mofussil pleadings” and taken lightly.
Whether the partition deed was void
33. The allegation in the plaint centres around fraud being practised on one
of the executants of the partition deed, namely Narayan. In the
absence of any pleading as to the particulars of fraud or even the
nature of fraud, the suit on such count is barred under Order VI Rule 4
of the Code of Civil Procedure.
34. The allegation as to the deed being void due to omission of Lalita‟s
shares was beyond the pleadings and the evidence in support thereof
could not be looked into.
11
35. However, even assuming that such evidence could be looked into, Lalita
admittedly died in 1934/1935, long before the execution of the partition
deed in 1979. Hence, on the date of execution of the partition deed, her
estate had devolved, even if the plaint case is to be believed, on her
daughter Kamala, the plaintiff no.1, who claimed not only as the
daughter of Lalita but also through Narayan, her husband.
36. Kamala, as discussed above, admitted in her cross-examination that
she not only signed the partition deed, but was present throughout its
registration, thereby being estopped from challenging the same. Since,
as per the plaint case, the estate of late Lalita devolved on her
heir/daughter Kamala, it is Kamala whose interest would be affected at
the relevant juncture even if her alleged mother Lalita‟s share was
omitted, and as Kamala was estopped from challenging the deed by her
own conduct, the challenge in that regard to the deed fails.
37. Secondly, the partition deed was acted upon, as evinced from the
admission of P.W.5, the plaintiff no.2 Durga, in her cross-examination
dated July 11, 2017, to the effect that the plaintiffs reside on the
western side of the land and the defendants on the eastern side, which
is in consonance with the allocation made in the impugned partition
deed.
38. Moreover, Exhibit-11, a purported letter issued prior to the filing of the
suit by the advocate of one of the plaintiffs, does not bind the plaintiffs
as a whole in any manner whatsoever and does not even form a part of
the pleadings. The judgment of Om Prakash (supra), cited by the
appellants in that regard, is on an entirely different context. In the said
12
case, it was held that the statement made to court by counsel is
binding on the client if the statement is unequivocal and in relation to
commitment of his client qua the subject-matter of the proceedings in
which the counsel was engaged and instructed to appear. In the
present case, Exhibit-11 was not filed during pendency of the suit or
was not a concession made before a court of law and as such, has no
binding effect on the plaintiffs. In any event, only one of the plaintiffs,
namely Mira, had apparently authorised such counsel to communicate
on her behalf at the pre-litigation period and not to represent her or the
other plaintiffs in the suit, which had not even been instituted then.
Thus, such document is entirely irrelevant and has no value as an
admission of the plaintiffs.
39. On the contrary, Kamala, allegedly the daughter of Lalita and the
plaintiff no.1, in her cross-examination as P.W.1 dated November 7,
2014, categorically denied that Lalita is her mother. She also admitted
that she did not have any document to proof that Lalita was her mother
or that Indumati was her grandmother. She also admitted that Lalita
had no identification proof. Thus, the admission that Lalita was not her
mother cannot be brushed aside as a stray comment but was in
consonance with the rest of her evidence as well.
40. Exhibit-19 is a letter written by the local authority in reply to an
application under the Right to Information Act and discloses precious
little or nothing as to whether Lalita was the daughter of Indumati,
thus, having no evidentiary value at all with regard to the alleged
13
daughter-mother relationship of Lalita with Indumati and/or even the
existence of Lalita.
41. P.W.3, the son of the second wife of Lalita‟s husband after Lalita‟s
demise, could not have direct knowledge, let alone special knowledge,
about the existence of Lalita or whether Lalita was the daughter of
Indumati and hence, not being a member of the family of Lalita at any
point of time, P.W.3 did not have any locus standi or authority to prove
the relationship between Lalita and Indumati. Thus, his evidence
cannot be looked into at all in the said context.
42. Accordingly, the registered Partition Deed of 1979 has not been proved
to be void either on the ground of fraud or for omitting Lalita‟s share
and, thus, is a valid document in the eye of law.
43. Thus, from the discussions as made above, it is evident that not only
was the suit palpably barred by limitation, the relationship of Lalita as
the daughter of Indumati also could not be proved by cogent evidence
by the plaintiffs. As such, the alleged omission of her share in the
partition deed is not credible.
44. Moreover, Kamala, even if Lalita‟s daughter, solely represented the
estate and interest of late Lalita at the time of execution and
registration of the partition deed. She signed the Partition Deed and
also was a party to the entire process of registration of the same and
cannot now turn around and challenge the said deed.
45. It is Kamala who was representing the estate of Lalita when the
partition deed was executed and in view of her conduct, the challenge
to the partition deed has to fail.
14
46. As discussed above, the plaint case of fraud was not even sustainable
and was not supported by particulars as contemplated under Order VI
Rule 4 of the Civil Procedure Code.
47. Moreover, the partition deed was acted upon, as is evident from the
evidence of P.W.5 and thus, there is no scope of challenging the same
at this belated juncture.
48. In view of the above, the learned Trial Judge erred in law and on facts
in granting a preliminary decree of partition and in observing that the
relief of declaration that the partition deed dated April 7, 1979 was void
was superfluous. Hence, the impugned judgment and decree are
vitiated by patent error of law and of fact.
49. Thus, F.A. No.89 of 2023 is allowed on contest, thereby setting aside
the impugned judgment and decree dated September 29, 2018 passed
by the learned Civil Judge (Senior Division), Second Court at Barasat,
District: North 24 Parganas in Title Suit No.46 of 2013. Accordingly, the
said suit is hereby dismissed on contest.
50. There will be no order as to costs.
51. A formal decree be drawn up accordingly.
52. CAN 1 of 2019 (Old No: CAN 158 of 2019) and CAN 9 of 2024 are also
disposed of accordingly.
(Sabyasachi Bhattacharyya, J.)
I agree.
(Uday Kumar, J.)
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