Calcutta High Court (Appellete Side)
Asis Mukherjee & Anr vs Krishna Mitra & Anr on 8 January, 2025
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
SA 39 of 2024
IA No: CAN 6 of 2024
Asis Mukherjee & Anr.
VS.
Krishna Mitra & Anr.
For the Appellants :Mr. Vinay Misra, Adv.
For the Respondent no. 2 :Mr. Kukteswar Maity, Adv.
Ms. Nupur Chaudhuri, Adv.
For the Respondent no. 3 :Mr. Aneek Pandit, Adv.
Mr. Ali Rizvi, Adv.
Ms. Ankita Sikdar, Adv.
Last Heard On :29.11.2024
Judgment On :08.01.2025
2
Bibhas Ranjan De, J. :
1. At the very outset it is pertinent to mention here that the
appellants not being parties to the suit or first appeal filed this
appeal along with an application (CAN no. 4 of 2024) seeking
leave to file appeal. Hon‟ble Division Bench, considering the
caveatable interest in the subject property, granted leave to file.
Hence this appeal.
2. Challenge in the present appeal is to a judgement passed by Ld.
Additional District Judge, 6th Court, Alipore on 02.12.2023, in
connection with Title Appeal no. 84 of 2018 wherein Ld. First
Appellate Court reversed the judgment and decree passed by the
Ld. Civil Judge, Junior Division, 2nd Court, Alipore in Title Suit
No. 302-17 of 2006.
3. The brief facts leading to the present appeal is that the subject
Land was purchased on 30.05.1947 by the joint family in the
name of one Kamal Basini Majumder, grandmother of plaintiffs.
Said Kamal Basini Majumder executed a deed of gift on
30.08.1967 by allotting 50% of the land to her elder son Binoy
Krishna Majumder and rest 50% to her grandsons namely Surojit
Majumder & Subhojit Majumder. Subhojit Majumder, plaintiff
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no. 2/respondent no. 4 died as bachelor during pendency of the
first appeal and his name was expunged from the cause title of
this appeal.
4. Plaintiff no. 1 & 2 i.e. grandson of Kamal Basini Majumdar and
also Binoy Krishna Majumder executed a family arrangement
and partition on 05.03.1982 (exhibit 3). By that family
arrangement, executors reduced their title and interest from
50% to 1/3rd and remaining 1/3rd was allotted to their parental
cousin uncle namely Saroj Kumar Majumder.
5. Binoy Krishna Majumder executed a will in the year 1983
(exhibit 9) in respect of his share to the extent of 1/3rd of subject
property to her eldest daughter Krishna Majumder (Mitra) i.e
proforma defendant/respondent no. 2. By that will Binoy Krishna
Majumder also parted with other properties in name of his other
two daughters. By that will Binoy Krishna Majumder also allotted
other property to the plaintiffs and will was probated on
29.01.1992.
6. Said Saroz Kumar Majumder bequeathed the said subject flat
alone with two garages to his wife Marjorie Majumder /original
defendant who also transferred the said flat to one Gita Rani
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Panda (Mukherjee) by a sale deed in the year 2011 (exhibit-7).
Said Gita Rani Panda (Mukherjee) died in the year 2011 and
present appellant are the legal heirs of Gita Rani Panda
(Mukherjee).
7. Legal heirs of Gita Rani Panda (Mukherjee) filed an application
along with sale deed executed by original defendant Marjorie
Majumder, with a prayer for inclusion as a party to the suit. But,
that was refused by the Trial Court on the ground of „lis pendenti
lite transferee‟. After demise of Marjorie Majumder, her son
Simon Majumder was substituted in the Trial.
Observation of the Trial Judge & First Appellate Court:-
8. Ld. Trial Judge framed nine (ix) issues for adjudication of the
title suit no. 302 -17 of 2006 which are as follows:-
i. Is the present suit maintainable in its present form and in
law?
ii. Have the plaintiffs any cause of action arisen to file the
instant suit?
iii. Is the suit bad for non-joinder and/or defect of necessary
parties ?
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iv. Have the plaintiffs any right title and interest and
possession of the suit property?
v. Was the deed of family settlement and partition dated
05.03.1982 superseded the deed of gift dated 30.08.1967?
vi. Have the plaintiffs executed the deed of family settlement
and partition?
vii. Are the plaintiffs entitled to get any decree as prayed for ?
viii. Are the plaintiffs entitled to get any other relief / relieves
under the law and equity?
ix. Additional Issue: Whether the deed of conveyance dated
02.05.2011 executed and registered by original defendant no.1
is void ab initio and not binding upon plaintiffs.
Among those issues Ld. Trial Judge set the conflict
between the family arrangement and partition deed and the
deed of gift at rest by holding, inter alia, that the family
arrangement and partition deed between the plaintiffs, Binoy
Krishna Majumder and Saroj Kumar Majumder, should be
preceded over the deed of gift executed by Kamal Basini
Majumder. Accordingly, issue no. ix was also decided against
the plaintiffs on account of decision made in issue no. v.
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9. Ld. Trial Judge recorded his finding that even Saroj Kumar
Majumder (a relative) who had no pre-existing right, title and
interest qua subject property, can be a party to a family
arrangement and partition relying on a decision of Dulal
Chandra Chatterjee and Ors. vs. Moni Mohan Mukherjee
and Ors reported in 2004 (4) CHN 563. Thereby, Ld. Judge
confirmed the right, title and interest in favour of Saroj Kumar
Majumder (since deceased) pursuant to the family
arrangement and partition deed. Accordingly, Ld. Trial Judge
declared the deed of conveyance dated 12.05.2011 (exhibit-7)
executed by widow of said Saroj Kumar Majumder, as a valid
document.
10. In opposition to that, Ld. First Appellate Court reversed
the judgement passed by the Ld. Trial Judge assigning, inter
alia, following reasons:-
“During the life time of Kamal Basini Mazumdar,
she had made a deed of gift on 30.08.1967 in
favour of Binoy Krishan Mazumdar in respect of
50% share of the property and rest 50% in favour
of the plaintiffs of this suit. Saroj Mazumdar is
not the son of Kamal Basini Mazumdar directly.
Name of father of Saroj Mazumdar was
Baidyanath Mazumdar.
7
It is fact that by virtue of deed of gift date
30.08.1967 the plaintiffs and the Binoy Krishna
Mazumdar became the owners of the suit
property.
It is fact that during his life time said Kamal
Basini Mazumdar has not made any deed of
cancellation or deed of revocation in respect of the
said deed of gift.
The original owner, Kamal Basini Mazumder
gifted the suit property to the plaintiffs and Binoy
Krishna Mazumder in the year 1967 when the
plaintiffs were minor and their mother Bandana
Mazumder accented the said gift. It was an
absolute gift.
The deed of family settlement arrangement and
partition was made in the year 1982. after a
lapse of 15 years.
Ext.3 is the impugned deed of family settlement
arrangement and partition. On perusal of deed of
family settlement arrangement and partition, it
appears from page 3, ……it was decided that,
and whereas, the said Kamal Basini Mazumdar
without properly appreciating or understanding
the import or implications of the deed which was
executed on 30.08.1967 effected a deed of gift of
the property being premises No. 10/1C, Swinhoe
Street, Kolkata by which, she was purported to
effect an absolute gift to her son Benoy Krishna
Mazumdar and grandsons Surojit Mazumdar and
Subhajit Mazumdar (plaintiffs) both then minor
under the age of 18 years and represented by
their mother Smt. Bandana Mazumdar, she
having accepted along with said Benoy Krishna
Mazumdar the gift made in their favour by said
Kamal Basini Mazumdar though it was the
intention of the said Kamal Basani Mazumdar all
along that the property would continue to be the
property of Saroj Kumar Mazumdar, Benoy
Krishna Mazumdar and Surojit Mazumdar &
8Subhajit Mazumdar being the sons of Bholanath
Mazumdar, and whereas, the said mistake
having been detected as to the omission of the
name of Saroi Kumar Mazumdar. In the deed of
gift dt. 30.08.1967, Benoy Krishna Mazumdar,
one of the donee in the said deed of gift and Smt.
Bandana Mazumdar mother and natural
guardian of said Surojit Mazumdar and said
Subhajit Mazumdar and on their behalf, effected
a declaration on 27.12.1974 whereby they
declared the intention as herein before mentioned
and had confirmed that in pursuance of the said
intention, possession of the ground floor of the
premises had been delivered to Saroj Kumar
Mazumdar.
That Saroi Kumar Mazumdar. since deceased
was one of the co-shares in respect of said family
arrangement dated 05.03.1982 (Ext- 3).
Fact that by virtue of purported deed of family
settlement and arrangement, the share of
themselves, plaintiffs nos. 1 and 22 have been
allegedly reduced from ½ portion to 1/3 rd
portion in respect of entire suit building. Fact that
by virtue of said deed of family arrangement and
partition.
remaining portion of the suit building had been
vested in favour of Saroi Kumar Majumdar i.e. of
ground floor.
Fact that as per the said WILL (Ext-9) the
plaintiffs are beneficiaries, in respect of 1/3rd
share of another property.
But the legality and validity of deed of family
settlement and partition shall have to be
considered as per law and as per materiala on
record as a whole.
A deed of gift once executed and registered and
accepted cannot be revoked unless the
mandatory requirement of section 126 of Transfer
Property Act, 1882 is fulfilled.
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Such fact and position of law has not been
discussed, observed and decided by Ld. Trial
Court.
Section 126 of Transfer Property Act, 1882 is very
clear and elaborate upon the manner in which gift
can be suspended or revoked by way of mutual
agreement of doner and donee or by rescissions
as in the case of contract. There are two types of
deed of gifts. Revocable gift deed and irrevocable
gift deed. In case of revocable gift deed it can be
revoked by doner at any time during her life time.
In case of irrevocable gift deed, the donees legally
become the owners of the gift as soon as they
physically received the gift and accepted the
same. Once this is done, the doner cannot
revoked the gift deed unless the requirement of
section 126 are fulfilled.
Here in this case, no case is made out by the
defendants that there was revocable deed of gift
and/or by invoking the provisions of section 126
the deed of gift was revoked.
In any deed of family settlement there must be
either partition of the property amongst co-
owner/co-sharers or allotment of share by way of
gift to the legal heirs.
It is pleaded by the defendants that Saroj Kumar
Mazumder also provided money for the
purchase/construction of the property of the
residential house by Kamal Basini Mazumder. At
the relevant time he was aged about 17 years. So
it is hardly possible for him to provide such
money. Furthermore there is no any single iota of
proof of the same. Mere pleading is not proof. It
has to be proved by cogent and convincing
evidence.
Accordingly, in view of the facts and
circumstances and materials on record it is held
that impugned deed of family arrangement and
partition is not valid and binding upon the parties
which could revoke the deed of gift validly.
10
So, the observations and findings of the Ld. Trial
Court in respect of issue no. 5 is not proper and
justifiable. Issue no. 5 is: “Was the deed of family
settlement and partition dated 05.03.1982
superseded the deed of gift dated 30.08.1967?”
In view of the materials on record and the
observations made herein above, it is held that
deed of family settlement and partition dated
05.3.1992 never superseded the deed of gift
dated 30.08.1967. Thus, the impugned deed of
family arrangements and partition is invalid and
not binding upon the parties rather the same is
void ab initio.
only rely thereon to extent of it’s admitted parts
by the plaintiffs but the plaintiffs shall, however,
treat the same as a pan of this plaint”
It is true that plaintiffs have to seek proper relief
in the prayer portion of the plaint but relief can be
granted on the basis of the prayer of the plaint as
well as on the basis of the pleadings of the plaint
to do complete substantial justice. Even Order 41
Rule 33 of the CPC contemplates the power of
court of Appeal. The Appellate Court may exercise
its wide power in favour of all or any of the
parties. The principles laid down in order 41 rule
33 CPC are in conformity with the rules of natural
justice. The object of the same is to enable the
court to do the complete justice between the
parties.
It is true that there is no specific prayer for
declaration upon impugned deed of family
arrangement and partition but issue no. 5 is
sufficient to consider such declaration. According
to order 7 rule 7 CPC every plaint shall state
specifically the relief which the plaintiffs claimed
either simply or in the alternative and it shall not
be necessary to ask for general or other relief
which may always be given as the Court may
think just to the same extent as if it had been
asked for one same rule shall apply to any relief
11claimed by the defendant in his written
statement.
Keeping in view the scope and object of order 7
rule 7 CPC relating to moulding of relief, even
though certain reliefs are not asked for they can
be granted by the Court under the above
provision when court considers it just and proper
to clo so on deed of family arrangements on the
basis of the pleadings of the parties and the
evidences and materials on record especially
when Issue no. 5 is framed to the effect that “Was
the deed of family settlement and partition dated
05.03.1982 superseded the deed of gift dated
30.08.1967.”
Even order 41 rule 33 of CPC contemplates the
power of the Court of appeal in that context. The
appellate court may exercise its wide power in
favour of all or any of parties.
The principles laid down in order 41 rule 33 of
CPC are in conformity with the rules of nature of
justice. The object of the same is to enable the
court to do complete justice between the parties.
So far as point of Limitation is concerned, it has
been conteraded by the Ld. Advocate for the
respondent is that the impugned deed of family
arrangement and partition is of the year 1982
whereas the suit has been filed in the year 2006
after lapse of 24 years which is hopelessly
barred by law of limitation.
It has already been observed hereinabove that
impugned deed of family arrangement and
partition of the year 1982 is void ab initio. The
suit was filed in the year 2006 i.e. after 24 years
from the date of execution of deed of family
arrangement and partition. In this case there is
no prayer for any declaration for such deed. It is
to be distinguished from a suit for cancellation or
declaration of any deed from the suit in which
any such deed is null an void i.e. void ab initio. In
case of void ab initio deed, it is not necessary for
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the party to come to the court for getting the deed
cancelled or set aside. The matter of limitation
will apply when a suit is filed for cancellation or
setting aside a document which is not void ab
initio. If a document is a void ab initio it is an
illegal document from the very inception so it does
not require either to cancel or to set aside because
according to law such a document does not
exists. Having considered the above all and the
present position of law, it appears that deed of
family arrangement and partition is not required
to be cancelled or set aside and as such there
cannot be any question of limitation on such
deed.
In view of the above, I do not find anything which
debarred this court from expressing its findings
and observations on the impugned deed of family
arrangements and partition.
At the time of final hearing of the argument it has
also been contended by the Ld. Advocate for the
respondent/defendant that there is no prayer for
recovery of possession in so much as admittedly
the appellants/plaintiffs are not in a possession
of the suit property. It is true admittedly Saroj
Kumar Mazumder was in possession of the suit
property.
It has already been observed herein above by the
Court that deed of family arrangements and
partition is void ab initio and as such on the
strength of the same neither Saroj Kumar
Mazumder nor his legal
heirs/successors/assignees has acquired any
right, title and interest over the suit property. If
that be so then at best possession of the Saroj
Kumar Mazumder or his legal
heirs/successors/assignees be permissive
possessors.
It has already been observed and decided herein
above that deed of family arrangement and
partition is void ab initio and possession of Saroj
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Kumar Mazumdar and/or his
successor/assignees is permissive possessor
which is equivalent to licence ex gratia. In any
case, if the appellant succeeds with the suit, they
shall have their discretion to either continue the
licence ex gratia granted in favour of the
predecessor-in-interest of the respondents or to
terminate it and seek quittance to delivery of the
suit property from the respondent which is a
subject matter of different cause, if at all.
Section 34 of the Specific Relief Act contemplates
to settle conflicting claims with the property and
also of disputes as to legal status. The Court
must exercise its discretion while granting a
declaratory decree only in proper and fit cases.
This legal remedy should be granted so as to
avoid multiplicity of the suit and to remove clouds
over legal rights of a rightful person. The Civil
Procedure Court enables the power of the Civil
Court to try all the suits of a civil nature,
excepting suits of which cognizance is barred by
any enactment for the time being in force. Suit for
declaration covers right and title of a party to the
suit. Suit for declaratory relief is within the scope
of Section 34, 1963 which enable a persons who
has his right or legal character declare by a Court
of Law.
In respect of maintainability of suit as per section
34 of the Specific Relief Act and its proviso the
contention of the Ld. Advocate for the appellants
is that the suit is for declaration and permanent
injunction and that the declaration of ownership
of the plaintiffs and pro-forma defendant in equal
shares is the main declarative relief and the
declaration on the impugned deed of family
arrangement and partition is the consequential
relief and as such the suit is quite maintainability
in all its respect.
Having considered the nature of suit and the
relief sought for and the submission of the Ld.
14
Advocates and the scope and object of section 34
of the Specific Relief Act and its proviso, I do not
find anything to hold that the suit is not
maintainable under the provision of section 34
and its proviso.
Moreover, admittedly now lispendence purchaser
is in possession of the suit property. He is not a
party in the suit. The plaintiffs have sought for
impleading him as party but the Ld. Trial court
has rejected the same. According to Section 52 of
Transfer of Property Act 1882, the
lispendence/pendentilite purchasers is governed
by the decision of the case. It is well settled legal
position that effect of Section 52 is not to render
transfer effected during the pendency of the suit
by a party to the suit void, but only to render
such transfer subsequent to the rights of the
parties to such suit, as may be eventually,
determined in the suit. In other words, the
transfer remains valid subject of course, to the
result of the suit. So, within the meaning of
section 52 any transfer of right in immovable
property during pendency of the suit will be
nonest in the eye of law if it will adversely effect
the interest to the other parties to the suit in
property concerned. Effect of section 52 is that
right of successful party in litigation in regard to
that property would not effected by alienation.
Having considered the above all and having
considered the materials on record it is held that
the main Issue no. 5 to the effect that “Was the
deed of family settlement and partition dated
05.03.1982 superseded the deed of gift dated
30.08.1967?” is hereby decided in favour of the
appellants/plaintiffs. Accordingly it is held that
the deed of family settlement and partition dated
05.03.1982 has not superseded the deed of gift
dated 30.08.1967 and the deed of family
settlement and partition is void ab initio and not
binding upon the parties. It is also held that deed
15
of gift dated 30.08.1967 is legal, valid and
binding upon the parties.
At the time of final hearing of the argument the
Ld. Counsel for the respondent/defendant has
finally contended that prayer portion of the plaint
is not proper like pleadings of the plaint and there
is no prayer or relief in respect of the deed of
family arrangement and partition and as such no
relief can be granted to the plaintiffs in the suit.
The prayer portion of the plaint are as follows
a) Decree for declaration that the right of
residence in the suit property, recognized and
granted to Saroj Kumar Mazumdar, since
deceased under the Deed of Partition respectively,
was a “Right of Enjoyment of Immovable
Property” of “Personal Nature” under the meaning
of Property Act, 1881 (as amended till date) which
was “Non-Transferable” and “Non-Assignable”
nature.
b) Decree for declaration that the Late Saroj
Kumar Mazumdar had no valid “Pre-Existing-
Title”, sourced from either transfer ‘or
“Succession” and could not have any right, title
and/or interest of any nature and/or to any
extent i whatsoever over and in respect of the suit
property, which was alloted to the aforesaid Late
Saroj Kumar Mazumdar under the aforesaid Deed
of Partition or any portion thereof, at all.
c) Decree of declaration that the Deed of Partition
automatically terminated by operation of law with
the death of the aforesaid Late Saroj Kumar
Mazumdar on 5th May, 2001 and the plaintiffs
and the Pro-Forma defendant has again become
“owners in equal undivided shares in respect of
Late Saroj Kumar Mazumdar under the Deed of
Partition also.
d) Decree for Declaration that the suit property,
which was allotted to Saroj Kumar Mazumdar,
since deceased under the Deed of Partition, was
16
neither Transferable by him in his lifetime, nor
Heritable by his legal heir/(a) and/or
representative/(s) after his death.
e) Decree for Declaration that the Defendant did
not have and could not have had any right, title
and/or interest of any nature and/or interest of
any nature and/or to any extent whatsoever over
and in respect of the suit property, which was
allotted to the Saroj Kumar Mazumdar, since
deceased under the Deed of Partition.
El) For decree declaring that the purported Deed
of Conveyance dated 02.05.2011 executed and
registered by the defendant no. 1 in favour of
stranger purchaser is voidab initio and not
binding upon the plaintiffs.
1) Decree for perpetual injunction restraining the
defendant, her men, servant/(s) Agent/(s)
Heir/(s) Legal representative/(s) from
transferring, alienating and/or Disposing off the
suit property or any person thereof which was
allotted to Saroj Kumar Mazumdar, since
deceased under the Deed of Partition, in future.
A prayer for relief is the legal term for the part of
a civil plaint on law suit in which the desire
solutions to the problem are listed.
A prayer for relief in law of Civil Procedure is a
portion of a plaint in which the plaintiffs
describes the remedies that plaintiffs seek from
the Court.
The Court should not go beyond what is pleaded
in pleadings for adjudication.
When the facts necessary to make out a
particular claim, or to seek a particular relief are
not found in the plaint the Court cannot focus the
anention of the parties, or its own attention on
that claim or relief, by framing an appropriate
issue.
17
No amount of evidence can be looked into, upon a
plea which was never put forward in the
pleadings.
A court cannot make out a case not pleaded. The
Court should confine its decision to the question
raised in pleadings. Court can not grant a relief
which is not claimed and which does not flow
from the facts and the cause of action alleged in
the plaint.
Civil Procedure Code is an elaborate codification
of the principles of nature justice to be applied in
civil litigation. The provisions are so elaborate
that many a time, fulfillment of the procedural
requirement of the code may Itself contribute to
delay and sometimes it may cause one more
round of litigation. The object and purpose of
pleadings and issues are to ensure that the
litigants come to the trial with all issues clearly
defined and to prevent cases being expanded or
grounds being shifted during trial.
A case not specifically pleaded can be considered
by the Court only where the pleadings in
substance, though not in specific terms, contains
the necessary averments to make out a particular
case and the issues framed also generally cover
the question involved and the parties proceed on
the basis that such case was at issue and had
led evidence.
It is also the contention of the Ld. Counsel for the
defendant that the plaint and the prayers and
reliefs thereto are cleverly drafted to make
camouflage.
But the main matter is that litigants should not be
made to suffer because of the act of advocate in
doing preparation of the case proceeding.
Having considered the above all and having
considered the materials on record and the
pleadings of the parties as well as evidences laid
thereon and prayers for the relief specifically
18
prayer for decree of declaration that the plaintiffs
and proforma defendant become owners in equal
undivided shares in respect of the suit property
and framing of issue no. 5 “Was the deed of
family settlement and partition dated 05.03.1982
superseded the deed of gift dated 30.08.19677”,.
I find that this Appellate Court cannot debarred
from passing specific declarations and reliefs in
the suit.
It has already been held by this Court herein
above that Issue No.5 is decided in favour of the
plaintiffs/appellants and impugned deed of
family arrangement and partition is vold ab initio
and deed of gift is legal, valid and binding upon
the parties. On the strength of deed of gift the
plaintiffs have allocted jointly 50% of the suit
property and Bijoy Krishna Mazumdar had
alloited 50% of the suit property. If that be so,
then it may be declared that they are the owners
of the suit property to the extent as stated above.
The deed of family arrangements and partition is
declared null and void ab initio. When a
document is valid, no question arises of its
cancellation. When a document is vold ab initio, a
decree for setting aside the same would not be
necessary as the same is non est in the eye of the
law as it would be a void ab initio.
Similarly it may also declared that Sarof Kumar
Mazumdar, since deceased had no valid title over
the suit and as such his legal
hairs/successors/assignees have no right to
transfer the suit property in favour of any
stranger purchaser.
If that be so then the possession of Saroj Kumar
Mazumder was permissive possession which is
nothing but a license. A license is neither
transferable nor heritable. So on the death of
Saroj Kumar Mjumdar the permissive possession
reverted back to the plaintiffs and proforma
defendant. Accordingly, the legal
19
heirs/successors/assignees of deceased Saroj
Kumar Mazumdar has no right, title and interest
over the suit property by way of testamentary or
intestate succession and the legal heirs of
deceased Saroj Kumar Mazumdar has no right to
transfer the suit property to any stranger.
Thus, undisputedly entire property has not been
partitioned by mates and bounds in between the
plaintiffs and the proforma defendant and as
such the entire property is undivided property.
So the plaintiffs are also entitled to get the decree
of declaration in respect of suit property as per
law.
Plaintiffs/appellants are also entitled to get order
of permanent Injunction in respect of the
alienation of the suit property against the
respondents/defendants.
Thus the impugned judgment and decree passed
by the Ld. Trial court are not justifiable and the
same is required to be interference with. Thus, I
find that the Title Appeal is liable to be allowed
on contest and the impugned judgement and
decree passed by the Ld. Trial Court is liable to
be set aside and the suit is liable to be decreed
on contest.”
At the Bar :-
11. Learned Counsel, Mr. Vinay Misra appearing on behalf of
the Appellants has contended as follows:-
Ld. First Appellate Court wrongly concluded that Saroj
Kumar Majumder was not the lenient descendant of Kamal
Basini Mujumder in spite of observation that Saroj Kumar
20Majumder was closely associated to the family in some
ways. Blood relation is not necessary to be a member of the
family arrangement and partition deed.
All the parties to the deed of gift were parties to the family
arrangement and partition deed which rules out possibility
of causing undue influence.
LD. First Appellate Court ignored the factum of contribution
by Saroj Kumar Majumder in purchasing the land in
dispute as well as construction thereon.
Ld. First Appellate Court did not consider that the suit was
filed without any prayer for recovery of possession while
Saroj Kumar Majumder and subsequent purchaser were in
possession of the subject flat successively.
Ld. First Appellate Court cannot grant any relief which is
not claimed.
12. In support of his contention, Mr. Mishra has relied on the
following cases:-
Prem Singh & Ors. vs. Birbal reported in 2006 (5) SCC
353
21 Dahiben vs. Arvindbhai Kalyanji Bhanusali reported in
AIR 2020 S.C. 3310
GPT Health Care Pvt. Ltd. vs. Surajmull Nagarmull &
Ors. in C.O. no. 622 of 2018
13. Now, coming to the discussion of the above referred cases
following ratios have come up after due deliberation which are
as follows:-
In the case of Kale (supra) the Hon‟ble Supreme Court
discussed about the principles of family settlement and held
that the members who may be parties to the family
arrangement must have some antecedent title, claim or
interest even a possible claim in the property which is
acknowledged by the parties to the settlement. Even if one
of the parties to the settlement has no title but under the
arrangement the other party relinquishes all its claims or
titles in favour of such a person and acknowledges him to
be the sole owner, then the antecedent title must be
assumed and the family arrangement will be upheld and the
Courts will find no difficulty in giving assent to the same.
22 In the case of Prem Singh (supra) the Hon‟ble Apex Court
observed that limitation period would be applicable in case
of minor also and the minor would have two options in filing
a suit to get the property purportedly conveyed under such
a deed of sale either by filing the suit within 12 years of the
deed or within 3 years of attaining majority. It was further
held that if the plaintiff is in possession of the property then
may sue for possession and the limitation period as under
Article 65 would be applicable.
In Dahiben (supra) the Hon‟ble Apex Court interpreted the
term „cause of action‟ as every fact which would be
necessary for the plaintiff to prove, if traversed, in order to
support his right to judgment. It consists of a bundle of
material facts, which are necessary for the plaintiff to prove
in order to entitle him to the reliefs claimed in the suit.
In GPT Health Care Pvt. Ltd. (supra) the Co-ordinate
Bench of this Hon‟ble Court handed down that the starting
point of limitation begins to run in case of Article 59 from
the date of knowledge. On the contrary, in case of Article
58, starting point of limitation is when the right to sue first
23accrues. It is noteworthy that in case of Article 58,
knowledge has not been made a yardstick. It can reasonably
be deduced that when a person challenges the binding
effect of a deed, the date of registration (when the deed
legally comes into force) has to be the date when the right to
sue first accrues. In the event the primary declaration
sought was that of title, without reference to any deed, the
date when such title was challenged openly within the
knowledge of the plaintiff, could have been a relevant factor.
However, when a deed is executed by an alleged stranger to
the property affecting the title of the actual owner, the right
to sue of the real owner accrues immediately. As such, in
cases where the execution of the deeds itself is under
challenge the starting point of limitation has to be fixed on
the date of registration of the transfer deed.
14. Ld. Counsel, Mr. Kukteswar Maity appearing on behalf of
the respondent no. 2 virtually supported the argument
advanced on behalf of the appellants.
24
15. Per-contra, Ld. Counsel Mr. Aneek Pandit appearing on
behalf of the respondent no. 3 has advanced his argument as
follows:-
During pendency of the suit Marjorie Mazumder/defendant
sold and alienated the suit property to the predecessor -in-
interest of the present appellants. Though, application of
addition of parties was moved before the Trial Court but the
same was rejected since the transferee lis pendens is
deemed to be in constructive notice of the suit.
It is due to lis pendens transfer, respondent no. 1 was
represented before the Trial Court by one Advocate Tripti
Mukherjee/ appellant no. 2 herein. In the first appeal,
respondent no. 1 contested the suit through an
advocate/appellant no. 2 herein.
Transferee lis pendens cannot resist the execution of the
decree as provided in Rule 102 of Order 21 of the Code of
Civil Procedure. Therefore, transferee lis pendens cannot be
maintained as second appeal unless the judgment debtor
under whom they claim, resist the decree by exploring legal
courses.
25
Referring to mandates of Section 100 of the Code of Civil
Procedure second appeal lies only for substantial questions
of law not even mere question of law, or mixed questions of
law and fact.
Second appeal is bad for not making judgment debtor a
party.
Analysis:-
16. This appeal centers on a disputed issue that stems from
a set of undisputed facts which are as follows:-
One Kamal Basini Mujumder was absolute owner of the
subject property.
That Kamal Basini Mujumder executed a deed of gift on
30.08.1967 qua subject property.
By that deed of gift dated 30.08.1967 Kamal Basini
Mujumder transferred 50% of the subject property to her
grandson namely Surajit Majumder and Subhajit Majumder
and rest 50% to her elder son namely Binoy Krishna
Majumder.
Both Surajit and Subhajit being minor, their mother
Bandana Majumder accepted the gift.
26
One Saroj Kumar Majumder being a resident of England
used to visit India and would stay in the ground floor flat.
Saroj Kumar Majumder was a paternal uncle of Sarojit and
Subhajit who filed the suit.
Saroj Kumar Mazumder is not a member of the family of the
plaintiffs according to following genealogy:-
Pulin Mazumder
Baidynath Mazumder Paresh nath Mazumder
(elder Son) (younger son) & Kamal
Basini Mazumder (wife)Saroj Kumar Mazumder (son)
Marjorie Mazumder
(wife of Saroj Kumar Mazumder)Binoy Kumar Mazumder Bholanath Mazumder (son)
(son) & Bandana MazumderSurajit Mazumder Subhajit Mazumder
On 27.12.1974 Binoy Krishna Majumder, Bandana
Majumder being natural guardians of Sarojit and Subhajit
27and Saroj Kumar Majumder executed a deed of declaration
before Chief Metropolitan Magistrate declaring the ground
floor flat of the Subject property to Saroj Kumar Majumder.
Thereafter, on 05.03.1982 a deed of family arrangement and
partition was executed by and between the plaintiff no.1
who attained the age of majority in the meantime, Bandana
Majumder on behalf of plaintiff no.2 who was minor, Binoy
Krishna Majumder since deceased and Saroj Kumar
Majumder in whose favour a share was declared.
By dint of that deed of family arrangement share of plaintiff
and Binay Krishna Majumder was reduced to 1/3rd each
from 50% and rest 1/3rd was allotted to said Saroj Kumar
Majumder.
After execution of the deed of family arrangement Binoy
Krishna Majumder executed a will on 18.11.1983 in favour
of his daughter (pro forma defendant of the suit) and will
was probated on 29.01.1992.
That Saroj Kumar Majumder died in England leaving
behind his wife Marjorie Majumder (original defendant) who
28
sold 1/3rd share to the present appellants during pendency
of the suit.
Present appellants were neither parties to the suit nor
parties to the first appeal. They filed this second appeal
after obtaining leave.
17. Second appeal was admitted and after scrutiny following
substantial questions of law are framed:-
Whether First Appellate Court has misconstrued and mis-
appreciated the deed of gift dated 30.08.1967 and the family
arrangement deed dated 05.03.1982 in arriving at a finding
that the deed of gift has superseded the family arrangement
resulting substantial miscarriage of Justice?
Whether Learned First Appellate Court has erred
substantially in not appreciating, the suit filed by the
plaintiffs, is barred by limitation.
18. Ld. Counsel, Mr. Vinay Misra ,on behalf of the appellants
has contended that the alleged deed of gift was not acted upon
as Saroj Kumar Majumder was in possession of the ground
floor of the subject building.
29
19. Section 122 of the Transfer of Property Act, 1882
mandates completion of execution of gift by the acceptance of
the same by the donee. It is nobodies case that the deed
executed in the year 1967 was not accepted by the donees. It
is also not the case of the appellants that Saroj Kumar
Majumder was in possession of the said property on and from
30.08.1967 when gift was accepted by the donees. Rather it
reveals that Saroj Kumar Majumder having no accommodation
in India, was allowed to stay in the said ground floor flat.
20. Therefore, I am unable to subscribe to the view that the
deed of gift was not acted upon.
21. Now, I proceed to the alleged deed of arrangement and
partition. Before I delve into the deep, it would be convenient
to spell out salient features of a settlement deed.
22. A Family arrangement is an arrangement between
members of the same family intended to be used generally and
reasonably for the benefit of the family by avoiding litigation or
to maintain its reputation. A family arrangement when it is
entered into bona fide and for the benefit of the family, it will
be generally enforced by the Court of law. The word “family” is
30
to be understood in a wide sense and parties to family
arrangement may not necessarily belong to the same family.
23. It is no longer res integra that a family arrangement is
based on the assumption that there is an antecedent title of
some sort in the parties and the agreement acknowledges and
defines what that title is, each party relinquishing all claims to
property other than that falling to his share and recognizing
the right of the others, as they had previously it, to the
portions allotted to them respectively.
24. In the case at hand, Saroj Kumar Mazumder being in
near relation of plaintiffs, may be considered as a member of
family arrangement. But with regard to antecedent title, family
arrangement deed spells out a fact that said Saroj Kumar
Majumder contributed at the time of purchase of subject land
and also for construction of subject building.
25. Antecedent title of a party to settlement is sine qua non.
In this case, Ld. First Appellate Court, after appreciation of
evidence, found that said Saroj Kumar Majumder was 17
years at the relevant point of time. Therefore, rightly Ld. Judge
had trouble believing the fact that Saroj Kumar Mazumder, a
31
boy of 17 years, contributed for purchase of land and
construction of building in absence of any specific evidence on
record. That apart, at the time of giving declaration dated
27.12.1974 before the Chief Metropolitan Magistrate there was
nothing mentioned about contribution of money by Saroj Kr.
Mazumder save and except no accommodation in India. That
is why, Ld. Judge of the First Appellate Court smelt a rat.
Therefore, possibility of causing undue influence cannot be
ruled out.
26. Admittedly one of the plaintiffs was minor at the time of
execution of deed of arrangement and on his behalf his mother
being natural guardian put her signature that too by reducing
share of that minor which cannot be termed as for the benefit
of the minor as per the provisions of Section 8 (1) of the Hindu
Minority and Guardianship Act 1956 (for short Act of 1956).
Besides, no permission of the Court was obtained within the
meaning of Section 8 (2) of the Act of 1956.
27. It is not disputed that the appellants purchased the suit
property from Marjorie Mazumder (original defendant) during
pendency of the suit. Thereby appellants became transferee
32
pendente lite who is bound by the decree, just as much as he
was a party to the suit. The principle of lis pendence embodied
in Section 52 of the Transfer of Property Act, 1882 being a
principle of public policy, no question of good faith or bonafide
arises. Therefore, a transfer of property during pendency of a
suit is not valid against the right determined by the Court‟s
final decree.
28. In the aforesaid view of the matter, the deed of family
arrangement and partition is found void ab initio and is illegal
document from the very inception. Therefore, question of
application of limitation under Article 59 of the Limitation Act
does not arise.
29. I am unable to interfere with the judgment impugned and
the substantial question of law is answered accordingly.
30. As a sequel, the Second Appeal being no. S.A. 39 of 2024,
which is devoid of merits, stands dismissed without any order
as to costs.
31. Interim Order, if there be any, stands vacated
32. Connected applications, if there be, also stand disposed
of accordingly.
33
33. Parties to act on the server copy of this order duly
downloaded from the official website of this Court.
34. Urgent photostat certified copy of this judgment, if
applied for, be supplied to the parties subject to compliance
with all requisite formalities.
[BIBHAS RANJAN DE, J.]
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