Calcutta High Court (Appellete Side)
Sri Prosad Alias Ratul Banerjee vs Sri Deva Prosad Banerjee And Ors on 16 January, 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 Subhendu Samanta
F.A.T. No.262 of 2019
with
CAN 2 of 2024
Sri Prosad alias Ratul Banerjee
Vs.
Sri Deva Prosad Banerjee and Ors.
For the appellant : Mr. ParthaPratim Roy,
Mr. Dyutiman Banerjee,
Mr. Vishal Mallick
For the respondents : Mr. Aniruddha Chatterjee,
Mr. Tanmoy Mukherjee,
Mr. Souvik Das,
Mr. K. Raihan Ahmed,
Mr. Soumava Santra
Hearing concluded on : 07.01.2025
Judgment on : 16.01.2025
Sabyasachi Bhattacharyya, J.:-
1. The appeal arises at the instance of the plaintiff out of a suit for
declaration that a registered deed of partition bearing no.834 dated
March 9, 2015 is a forged, manufactured and invalid document with a
finding that the plaintiff has 2/5th share in the properties covered by
2the partition deed, for permanent injunction restraining the defendants
from disposing of the suit properties and making any construction, and
consequential reliefs. In the said suit, the defendant/respondent nos.1
to 3 filed a written statement along with a counter claim, seeking
partition of 92 decimals in RS Plot No.1664.
2. The brief facts of the case are that one Amiyo Kumar Banerjee was the
original owner of the entire property, comprised of the suit property and
the subject property of the counter claim. On the demise of the said
Amiyo, a written family settlement deed was prepared amongst his
heirs in the year 1981, which according to the plaintiff was neither
registered nor acted upon. In 1996, another family settlement deed was
entered into between all the parties to the present suit, which was also
not registered and, according to the plaintiff, not acted upon.
3. The subject-matter of the 1996 deed was divided into Schedule 1,
comprised of RS Plot Nos.1814, 1815 and 1816 to the extent of 1.30
acres and RS Plot No.1813 to the extent of 29 decimals. Schedule 2 of
the said deed comprised of RS Plot No.1664 to the extent of 92
decimals. As per the said deeds, „Anabila Villa‟, a building standing on
RS Plot No.1664, which comprised of Schedule 2 of the deed and is the
subject matter of the counter claim, went to the share of the plaintiff
whereas „Swapan Puri‟ was a construction standing on Schedule 1 of
the said deed, which is the suit property.
4. The plaintiff claims that no valid partition was effected either by the
1981 deed or the 1996 deed. However, the defendants, among
3themselves, executed a registered deed of partition on March 9, 2015,
thereby partitioning the subject-matter of the suit property, where
„Swapan Puri‟ stands, between themselves, without impleading the
plaintiff as a party. It is argued on behalf of the plaintiff that in the
absence of any valid partition by metes and bounds, either by a
registered deed or by a decree or order of a court, no partition ever took
place between the parties and the entire property, comprised of both
the subject-matters of the suit and the counter claim, housing „Swapan
Puri‟ and „Anabila Villa‟ respectively, remained joint properties.
5. Learned counsel for the plaintiff/appellant contends that in terms of
Section 14 of the West Bengal Land Reforms Act, 1955 (hereinafter
referred to as “the WBLR Act“), without a registered partition deed or a
valid decree of a court of law, no partition can be effected in West
Bengal.
6. In support of his contention, learned counsel cites a co-ordinate Bench
judgment of this Court in Md. Nazrul Islam and Another v. Sri Uday
Chakraborty and Others, reported at 2017 SCC OnLine Cal 1603, where
the Division Bench reiterated that Section 14 of the WBLR Act, as
amended in the year 2002, cannot nullify the effect of oral partition, if it
is found that the joint property belonging to the co-sharers were
partitioned amicably prior to August 7, 1969. By necessary
implication, it is argued, mutual family arrangements entered into after
the said date, from when the relevant amendments in Section 14 of the
4WBLR Act came into effect, do not pass any title or create any interest
on the basis of such partition.
7. Learned counsel also cites Kartick Chandra Mandal v. Netai Mondal
(Dead) by Lrs. and Others, reported at (2009) 2 SCC 105, where the
Supreme Court held that there is no doubt so far as Section 14 of the
WBLR Act came into force in West Bengal with effect from June 7, 1965
except in the areas transferred from Bihar to West Bengal and
therefore, after the introduction of the aforesaid provision, the partition
of a holding can be effected only by a registered instrument or by a
decree or order of a court.
8. Learned counsel for the appellant next cites K. Arumuga Velaiah v. P.R.
Ramasamy and Another, reported at (2022) 3 SCC 757 and Korukonda
Chalapathi Rao and Another v. Korukonda Annapurna Sampath Kumar,
reported at (2022) 15 SCC 475, in both of which, a previous judgment of
the Supreme Court in the case of Kale and Others v. Deputy Director of
Consolidation and Others, reported at (1976) 3 SCC 119, was
considered. The Supreme Court, in both the cited judgments, came to
the conclusion that if right, title and interest were created presently by
virtue of the deed-in-question, the same is compulsorily registrable
under Section 17 of the Registration Act, 1908.
9. It is further argued that although from the evidence of P.W.1, the
plaintiff/appellant, it might be construed that a part of the property in
RS Plot No. 1664 was transferred by the plaintiff and a petrol pump has
been started on a portion of „Anabila Villa‟, the same was not in terms
5of either the 1981 or the 1996 deeds but pursuant to a gift deed
executed by the mother of the parties in favour of the plaintiff and the
petrol pump is situated within the share of the plaintiff covered by such
gift deed.
10. Learned counsel for the appellant next argues that the objection of the
defendants as to the bar under Section 34, proviso of the Specific Relief
Act, 1963 is not tenable in the eye of law, since the said proviso
contemplates only “further” reliefs. It is argued that the expression
“other” reliefs are not covered by the proviso. Hence, only if a suit for
declaration is filed without “further” reliefs being sought, despite the
plaintiff being capable to seek so, the suit is barred under the said
provision. In the present case, partition is an “other” relief and the
further relief of permanent injunction was duly sought by the plaintiff.
Thus, despite partition being not claimed, the suit is not barred by the
proviso to Section 34 of the Specific Relief Act. In support of the said
contention, learned counsel cites a Division Bench Judgment of this
Court in the matter of Joy Narayan Sen Ukil v. Srikantha Roy and
Others, reported at XXVL CWN 206, where such distinction between
“other” and “further” relief was drawn by the court.
11. Learned senior counsel appearing for the respondent controverts the
submissions of the plaintiff. It is argued that the appellant, as P.W.1,
categorically admitted that he acted upon the family settlement deeds
of 1981 and 1996 by dealing with his portion of the property relating to
„Anabila Villa‟ pursuant to the said deeds.
6
12. It is argued that a family arrangement stands on a different footing
from partition between strangers. It was held in Kale (supra) that
family arrangements are governed by special equity peculiar to them
and would be enforced, if honestly made, to maintain unity and
homogeneity of the family. Even where the court finds that a family
arrangement suffers from a legal lacuna or a formal defect, the rule of
estoppel is pressed into service and is applied to shut out the plea of a
party to the family arrangement who seeks to unsettle the settled
disputes and claims by revoking the said family arrangement under
which he himself enjoyed some material benefits.
13. It is argued that in the subsequent judgments of 2022 cited by the
plaintiff/appellant, the Supreme Court did not overrule the said ratio of
Kale (supra).
14. Rather, even in the teeth of Section 14 of the WBLR Act, the distinction
drawn in law between a family arrangement and other partition deeds
has been sustained. Family arrangements belong to a different
category altogether and since there is no doubt in the present case that
the 1996 deed, containing such family arrangement, was acted upon by
the parties, the plaintiff is debarred by the principles of estoppel from
re-agitating such issue.
15. Learned senior counsel for the appellant cites Tulasidhara and Another
v. Narayanappa and Others, reported at (2019) 6 SCC 409, where it was
held, inter alia, that equitable principles such as estoppel, election,
family settlement, etc., are not mere technical rules of evidence but
7
they have an important purpose to serve in the administration of
justice. The ultimate aim of the law is to secure justice and in recent
time, courts have been liberally relying on those principles.
16. Learned senior counsel cites a judgment of a learned Single Judge of
this Court in Dipsikha Chakraborty and Another v. Arun Kanti Basu and
Sabita Basu, both deceased, substituted by their heirs and legal
representatives Samita Bardhan Majumdar, reported at 2022 SCC
OnLine Cal 2385, where it was held that having admittedly intended to
transfer the property in favour of the defendants in the said case, and
admittedly taken a substantial amount of consideration, the plaintiffs
therein were squarely bound by the doctrine of estoppel from resiling
from their original intention to transfer the property in favour of the
defendants, although there might have been a contractual restriction
enforceable by the Government against the plaintiffs.
17. It is further argued that the suit is also barred under Section 34,
proviso of the Specific Relief Act, since partition has not been
specifically sought for by the plaintiff.
18. Learned counsel for the plaintiff/appellant, in rejoinder, further adds
that the counter claim of the defendants is also not maintainable, being
bad for partial partition even if the property was held to be joint, since
it is restricted only to the portion allegedly occupied by the plaintiff.
19. Upon hearing learned counsel for both parties, the court comes to the
following conclusions:
8
20. The first issue which falls for consideration is whether the suit is
barred under the proviso to Section 34 of the Specific Relief Act, 1963.
The plaintiff/appellant is justified in pointing out that the language of
the proviso is that no Court shall make any declaration where the
plaintiff, being able to seek further relief than the mere declaration of
title, omits to do so. The use of the expression „further‟, as opposed to
„other‟, is of crucial importance.
21. The former connotes something derived from or consequential upon the
primary relief of declaration, as is the relief of permanent injunction
which has been sought in the present suit.
22. On the contrary, partition is an independent relief which cannot,
strictly speaking, come within the ambit of “further” relief. It is entirely
within the choice of the plaintiff whether to seek or not to seek partition
of the property. It may very well be that a plaintiff remains content
with joint possession of the property and no cause of action for
partition has arisen at all. In such a case, there is no bar in the
plaintiff seeking declaration of his title to the property to the extent of
his/her share.
23. The above proposition was reiterated by the Division Bench in Joy
Narayan Sen Ukil (supra). In the said case, the Division Bench
distinguished between “other relief” and “further relief” and held that
the further relief must be consequential relief in relation to the legal
character or right as to the property which the plaintiff is entitled to
and must be relief appropriate to and necessarily consequent on the
9
right of title asserted. Such relief must flow directly and necessarily
from the declaration sought for.
24. The Division Bench further observed that the position is different where
the plaintiff is in joint possession of joint property to the extent of his
share and is driven to ask declaratory relief because the extent of his
share is disputed by a co-owner. In a case of this description, it was
held that it is difficult to appreciate on what principle the plaintiff
should be driven to seek for partition as a consequential relief. One of
the incidents of joint property is that it may be enjoyed jointly; another
incident is that its joint character is liable to be terminated. If a co-
owner is content with joint property, as such, there is no reason why he
should be driven to seek partition merely because his co-owner chooses
to dispute the extent of his share. It may be that the plaintiff requires
nothing more than a mere declaration and in those circumstances, to
refuse to make the decree asked for will be a denial of justice.
25. Borrowing the said principle, the plaintiff in the present case has
sufficiently sought for further relief by way of permanent injunction to
supplement his primary relief of declaration of his title to the extent of
2/5th share in the suit property.
26. Moreover, the primary relief in the suit is a challenge to the registered
partition deed between the defendants dated March 9, 2015 and
declaration of his share is also a secondary relief. Hence, this Court
holds that the suit is well maintainable, being not barred under the
proviso to Section 34 of the Specific Relief Act, 1963.
10
27. The defendants/respondents have also touched upon the issue of the
plaintiff seeking a declaration that the deed of 2015 is forged and
manufactured without having provided particulars regarding such
forgery in the pleadings. However, although no particulars of forgery
and manufacturing of the document has been provided, in the same
breath, the plaintiff also sought for declaration that the deed dated
March 9, 2015 is an invalid document. In the plaint, sufficient grounds
have been made out for such prayer, as the plaintiff was not a party to
the deed and the partition deed of 2015 is alleged to be bad for non-
joinder of all the joint properties of the parties.
28. Thus, such objection of the defendants/respondents has to be
discounted.
29. The primary question which has arisen in the present case is whether
the partition deed of 2015 with regard to only the suit property,
comprised of „Swapan Puri‟, without impleading the plaintiff, is an
invalid document.
30. Such issue is premised on the underlying issue as to whether valid
partition of the property took place by virtue of the prior two
unregistered deeds of family settlement of the years 1981 and 1996.
31. The law on the subject is somewhat fluid and is required to be
discussed at length here.
32. The first in the line of judgments governing the field which has been
cited before us is Kale (supra). In the said case, the Supreme Court, in
no uncertain terms, held that family arrangements are governed by
11
special equity peculiar to themselves and would be enforced if honestly
made. In the present case, the evidence of P.W.1 shows that he acted
fully in terms of the 1996 deed by dealing with properties belonging to
his share as per the said deed, pertaining to „Anabila Villa‟ on RS Plot
No.1664. Although the plaintiff/appellant has claimed that he did so in
respect of the portion gifted by his mother, the said justification is
flimsy, since the mother also gifted only an undemarcated share in the
property. Thus, fact remains that the said deed of 1996 was acted
upon by the parties.
33. The Supreme Court, in Kale (supra), goes on to observe that a family
arrangement should be enforced to maintain unity and homogeneity of
the family. Even if it suffers from a „legal lacuna‟ or „formal defect‟, the
rule of estoppel is pressed into service and is applied to shut out the
plea of a party who seeks to unsettle the settled disputes after having
enjoyed some material benefits under it.
34. However, in Clause (4) of Paragraph No.10 of the said judgment, the
Supreme Court observed that registration is necessary if the terms of a
family arrangement are reduced into writing and if the transfer of title
happens by virtue of the said deed itself, and the deed does not merely
record an arrangement already entered into between the parties.
Clause (5) of the same paragraph lays down that the members who may
be parties to the family arrangements must have some antecedent title
and even if one of the parties has no title but under the arrangement
12
the other party relinquishes all its claims, the antecedent title must be
assumed.
35. However, Clause (5) of Paragraph No.10 is not an isolated island but
has to be read in conjunction with Clause (4). Thus, even in Paragraph
No.10 of Kale (supra), the Supreme Court reiterated the principle that
family arrangements, despite being of a different category than ordinary
transfers, if the devolution of title is in praesenti, by virtue of such
document itself, the same has to be registered in order for it to create
valid title in favour of the parties.
36. The confusion, however, is created by the observation of the Supreme
Court in Kale (supra) that even if the family arrangement suffers from a
“legal lacuna” or a “formal defect”, the rule of estoppel would be pressed
into service.
37. Again, in Paragraph No.38 of the said judgment, the Supreme Court
holds that in the said case, since the family arrangement was oral, the
principle of no estoppel against the statute was not applicable as there
was no document which was to be compulsorily registrable. Yet, as a
rider, the Supreme Court added that assuming, however, that the said
document was compulsorily registrable, the courts have generally held
that a family arrangement, being binding on the parties to it, would
operate as an estoppel by preventing the parties, after taking advantage
under the same, to resile from the same or try to revoke it.
13
38. The position in Kale (supra), however, has been considered and
explained by the Supreme Court itself in the subsequent judgments of
K. Arumuga Velaiah (supra) and Korukonda Chalapathi Rao (supra).
39. In the former judgment, while considering Kale (supra), the Supreme
Court observed that in Kale (supra) it was held even if family
arrangement could not be registered it could be used for collateral
purpose, that is, to show the nature and character of possession of the
parties in pursuance of the family settlement, and also for the purpose
of applying the rule of estoppel which flowed from the conduct of the
parties.
40. A similar view was reiterated in Korukonda Chalapathi Rao (supra) in
the light of Section 17 and Section 49 of the Registration Act.
41. The conundrum which arises out of the above distinctive views of the
Supreme Court is required to be resolved in the light of the doctrine of
precedents.
42. In Kale (supra), the question which had fallen for consideration was
whether an oral family arrangement could be given effect to. The
Supreme Court held in Paragraph No.38 thereof that in view of the fact
that the family arrangement there was oral and the mutation petition
was merely filed for information in pursuance of the compromise, the
document was, in any event, not required to be registered and therefore
the principle that there is no estoppel against the statute did not apply
to the said case at all.
14
43. Going by the doctrine that a decision is a binding precedent for only
what it actually holds as ratio decidendi and not what can be logically
derived therefrom, Kale (supra) is not a binding precedent for the
proposition that a document of family settlement by which present
rights are conferred is not required to be registered to be given effect to.
Such a view finds support in Clause (4) of Paragraph No.10 of the said
judgment itself, where it was categorically observed that it is well-
settled that registration would be necessary if the terms of the family
arrangement are reduced into writing and the terms and recitals are
made „under the document‟ as opposed to the same being a mere
memorandum for recording a previous arrangement which had already
taken place between the parties.
44. The difficulty arises, since in the latter part of Paragraph No.38 of Kale
(supra), the Supreme Court observed that assuming, however, that the
document was compulsorily registrable, the courts have generally held
that a family arrangement is binding on the parties to it and would
operate as an estoppel by preventing the parties to resile from the same
after having taken advantage of it.
45. Another principle of the doctrine of precedent, however, comes into play
in such context. A subsequent judgment of the same court would be
per incuriam if it does not consider the effect of a previous judgment.
However, if the subsequent judgment takes note of and explains,
elucidates or elaborates the previous judgment, it is the latter which
would be operative as a binding precedent.
15
46. In the present case, thus, the judgments rendered by the Supreme
Court in K. Arumuga Velaiah (supra) and Korukonda Chalapathi Rao
(supra) would be operative as the binding precedent, since both of those
judgments considered the ratio laid down in Kale (supra).
47. Even from another perspective, the obiter dictum of the Supreme Court
in Kale (supra), which otherwise carries considerable weight and is also
binding on High Courts, to the effect that a family arrangement is
binding on the parties on the principle of estoppel even if otherwise
compulsorily registrable, has to be read in the light of Paragraph No.9
of the said judgment itself. While adumbrating on the legal effect of
family arrangements, the Supreme Court held in Paragraph No.9 of
Kale (supra) that a family arrangement would not be disturbed on
“technical or trivial” grounds. Again, the Supreme Court uses the
expressions “legal lacuna” and “formal defect” which, in the view of the
Supreme Court, would not deter the court from pressing into service
the rule of estoppel.
48. Hence, we are to consider whether the bar under Section 14 of the
WBLR Act and Section 17, read with Section 49, of the Registration Act,
amount only to mere legal lacunae or formal defects or hit at the root of
the devolution of title itself.
49. In both K. Arumuga Velaiah (supra) and Korukonda Chalapathi Rao
(supra), as well as in Kale (supra), the Supreme Court was considering a
situation where a document which is compulsorily registrable can be
looked into as evidence in the absence of registration, in the context of
16
a family arrangement. However, the bar under Section 14 of the WBLR
Act stands on a higher footing than Section 17 of the Registration Act.
50. Whereas Section 17, read with Section 49, of the Registration Act
debars a court or a judicial authority from relying on or taking on
evidence a compulsory registrable document if it is not registered,
Section 14 hits at the transfer/creation of title itself.
51. There is a clear distinction between a document being not admissible in
evidence due to non-registration, in which case it would be otherwise
admissible in evidence for collateral purposes, and a document not
validly creating any title at all.
52. Section 14 of the WBLR Act does not deal with the mere non-
admissibility in evidence of an unregistered document, which is
otherwise compulsorily registrable, but prevents any title from passing
by virtue of a partition deed at all if it is unregistered.
53. Section 14(1) provides that partition of a plot of land among co-sharers
of a raiyat owning it shall be made either by a registered instrument or
a decree or order of a court. Since it is nobody‟s case that there was a
decree or order of court in the present lis, we confine ourselves to the
registration part.
54. Again, sub-section (6) of Section 14 of the WBLR Act introduces a non
obstante clause which provides that no partition among co-sharers of a
raiyat in a plot of land “shall have any force” unless such partition is
made by registered instrument.
17
55. Section 3 of the WBLR Act also contains a non obstante clause which
lends overriding effect to the said Act notwithstanding anything
inconsistent therewith, not only in any other law in force but also
custom, usage, contract or even a decree or order or decision or award
of a court.
56. Similarly, sub-section(6) of Section 14 provides that the said bar would
be applicable notwithstanding anything contained not only in any other
law, custom or contract, but also in any other judgment or award of any
court. It is noteworthy that sub-section (6) of Section 14 of the WBLR
Act is couched in negative language and provides teeth to sub-section
(1) of Section 14. Whereas sub-section (1) of Section 14 provides that a
partition shall be effected only by a registered instrument or of a decree
of a court, sub-section (6) thereof provides that no such partition shall
have “any force” unless it is registered. The non obstante clause gives
overriding effect to the Act even over judgments of any court, by
necessary implication including the Supreme Court.
57. It would be useful to note here that the WBLR Act has been enacted by
the State of West Bengal and prevails within the State of West Bengal
over any other law or judgment. The WBLR Act relates to land etc.
which is covered by item 18 of List-II (State list) of the Seventh
Schedule of the Constitution of India and, thus, the State has the
unbridled authority to enact law on the subject. Hence, the non
obstante clause introduced in Section 3 and Section 14(6) of the WBLR
Act is legally and constitutionally valid and legitimately confers
18
overriding effect to the Act even over previous judgments of the
Supreme Court. Considered from such perspective as well, within the
State of West Bengal, irrespective of the judgments of the Supreme
Court to the effect that family arrangements may be oral and need not
be registered, a partition, to be effected in the State and to have any
force, has to be compulsorily brought about by way of a registered
instrument in writing or a decree or order of court.
58. Non-registration does not merely debar, as under the Registration Act,
the document from being tendered in evidence to directly prove a fact
(leaving it open for such document to be tendered as collateral
evidence), but provides that no partition can be effected at all and/or
can have any force unless the partition deed is registered. Thus, as
opposed to being confined to mere evidentiary value of the unregistered
partition deed, Section 14 prevents the very act of partition and/or
conferment or creation of title by such partition within the State of
West Bengal in the event the same is not effected through a registered
instrument or a court decree.
59. Accordingly, it cannot but be held that the ratio or obiter dictum of Kale
(supra),to the effect that non-registration does not vitiate a family
arrangement at least between the parties who took advantage of the
same, is overridden by the effect of Section 14 of the WBLR Act.
60. As held in Md. Nazrul Islam (supra) by a co-ordinate Bench judgment of
this Court, the 2002 amendment to Section 14 of the WBLR Act was
given retrospective effect since August 7, 1969. All the relevant
19
documents in the present case, starting from 1981 and thereafter on
1996, were executed subsequent to such amendment having come into
force.
61. Again, the Supreme Court, in Kartick Chandra Mandal (supra),
categorically observed that after the introduction of the said provision,
the partition of a holding can be effective only by a registered
instrument or by a decree or order of a court in the State of West
Bengal and there is no dispute as far as this aspect is concerned.
Whereas the said decision is specifically on the issue of applicability of
Section 14 (as amended) of the WBLR Act, the said provision did not
come up for consideration, argued or decided on in the earlier
judgments of Kale (supra) etc.
62. That apart, in view of the nature of Section 14, which hits at the very
root of the transaction as discussed above, non-registration does not
remain a mere “legal lacuna” or a “formal defect” which can be brushed
aside by the court on the principle of estoppel but attains the character
of a substantive bar in creation of rights.
63. It is well-settled that there cannot be any estoppel against the law. In
Kale (supra), the Supreme Court distinguished such proposition on the
ground that the family arrangement therein was oral whereas in the
present case, the deeds of 1996 and 1981, relied on by the defendants,
were reduced into writing and comprised of present demise of title at
those junctures.
20
64. Also, the said documents are sought to be relied on as direct proof of
transfer of title by way of partition between the parties and not as
collateral evidence for the partition effected by those.
65. Unless the 1996 deed is construed to comprise of a valid partition, the
2015 document which is challenged in the present suit cannot have
any binding legal effect, since, if the 1996 document did not have any
force as a partition deed, the subsequent deed of 2015, entered into
only in respect of a part of the joint property and between some of the
co-owners, is palpably bad in law and invalid as such.
66. The judgment of Tulasidhara (supra) is not germane in the present
context, since the Supreme Court, in paragraph 9.5 thereof, reiterated
that a written document of family settlement/family arrangement can
be used even without registration as “corroborative evidence” to explain
the arrangement made thereunder and the conduct of the parties.
67. Even if we were to construe the 1996 document in the present case as
corroborative evidence to show that parties had intended to effect a
family arrangement between themselves, in the teeth of Section 14 of
the WBLR Act, the said deed itself, which contained present demise as
per its own language, could not comprise of a valid partition.
68. We could have understood if the said terms were finally reduced into
writing on the basis of previous understanding and subsequently
registered between all the co-owners and pertained to all the joint
properties, in which case a valid partition would have been effected.
21
69. However, the document dated March 9, 2015 in the case at hand was
executed between the defendants only, leaving out the plaintiff/co-
owner and entered into in respect of only a portion of the entire joint
property, comprised of the subject matters of the suit and the counter
claim.
70. The judgment of the learned Single Judge of this Court in Dipsikha
Chakraborty (supra), apart from being not binding on the present
Division Bench as a precedent, merely held that in the facts of the case,
the principle of estoppel was applicable since the parties had entered
into five agreements giving out their intention to transfer the property
and thus formed a contractual obligation, coupled with estoppel. The
said documents were pitted against a contractual restriction
enforceable by the government against the plaintiffs and held to have
overriding effect over the latter. Thus, in the said case, it was contract,
along with estoppel, as against contract, which is entirely
distinguishable from the present case which is one of estoppel versus
statute.
71. Thus, even if the appellant has acted in terms of the 1996 deed,
thereby dealing with some parts of the property, the joint character of
the entire property comprised of the subject-matter of the suit as well
as counter claim was never lost in accordance with law.
72. Hence, the plaintiff/appellant is entitled to a declaration that the
partition deed bearing no.834 dated March 9, 2015 is an invalid
document whereby no title passed between the parties and does not
22
bind the plaintiff/appellant in any manner. As a logical corollary, the
2/5th share of the plaintiff is also required to be declared, along with a
permanent injunction being granted restraining the defendants from
disposing the said properties in any manner and to make any type of
construction thereon.
73. Insofar as the counter claim is concerned, the same is patently barred
by law due to non-joinder of all joint properties, particularly those
comprised of the suit property pertaining to RS Plot Nos.1813, 1814
and 1816. Hence, the counter claim was rightly turned down by the
learned Trial Judge.
74. In such view of the matter, F.A.T. No. 262 of 2019 is allowed on
contest, thereby setting aside the judgment and decree dated March 15,
2019, passed by the learned Civil Judge (Senior Division) at Purulia,
District-Purulia in Title Suit Number 52 of 2015 to the extent that the
plaintiff/appellant‟s suit was dismissed.
75. It is hereby declared that the registered partition deed bearing no.834
dated March 9, 2015 executed between the defendants is an invalid
document whereby no partition was effected between the
defendants/respondents and that the said document does not bind the
plaintiff/appellant in any manner whatsoever.
76. It is further declared that the plaintiff/appellant has 2/5th share in the
suit property which was the subject-matter of the said deed dated
March 9, 2015.
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77. The respondents are hereby restrained by a decree of permanent
injunction from disposing of the suit property in any manner in favour
of third parties and/or from making any type of construction thereon.
78. The counter claim filed by the defendant/respondent nos.1 to 3 stands
hereby dismissed and the said portion of the impugned judgment and
decree is sustained.
79. There will be no order as to costs.
80. A formal decree be drawn up accordingly.
81. In view of the above judgment, CAN 2 of 2024, which seeks to raise a
new issue in the garb of Order XLI Rule 27 of the Code of Civil
Procedure, becomes redundant and is accordingly dismissed.
(Sabyasachi Bhattacharyya, J.)
I agree
(Subhendu Samanta, J.)