Sri Satya Sankar Shyamal and Anr vs Dr. Arun Sankar Shyamal and Others

Ashim Kumar Banerjee, J.

BACKDROP

The respondent no.1 filed a partition suit being T.S. No. 19 of 1992 in the 2nd Court of Assistant District Judge [(now Civil Judge) Senior Division], Contai, Midnapure inter alia, praying for partition against his own brother Satya Sankar Shyamal in respect of two properties inter alia claiming half share in A-1 scheduled land and B-1 scheduled land from the B-scheduled land. From the schedule it appears that A-scheduled land was a vast property being five acres out of which the property in schedule A-1 being a part of the same measuring about 19/3/8 decibel with regard to B-schedule property which was 24 decibel in total. B-1 schedule being a part of it would comprise 75/3/4 decibel. He also made the co-owners of the balance part of A-schedule property and B-schedule property as proforma defendants only for the purpose of appropriate adjudication. He claimed that the plaintiff was major and started earning since 1961 when the defendant no.1 was a minor and living under the guardianship of their father having no income of his own. The plaintiff purchased the properties from time to time from different vendors, last of which was made in 1968 when the defendant no.1, although a major, was still a student. The purchase was however made in the joint name of the plaintiff and the defendant no.1. In 1982 the plaintiff constructed a residential building in plot no.1057/2168 and the entire building was constructed out of his own earning. However, both the brothers resided together and the premises were in their joint possession. The plaintiff was working abroad. He was a Scientist by profession. Their father died in the year 1989. The father executed a Deed of Settlement (Nirupan Patra) during his lifetime. The plaintiff alleged that the said Deed was executed at the instruction of the defendant no.1. On perusal of the said Deed of settlement called as Nirupan Patra we find that the father expressed his strong displeasure against his eldest son being the plaintiff, even then gave him absolute right in respect of a particular property being 68 decibel of land in schedule appended thereto. The plaintiff constructed a house and the said house was in his exclusive possession. The defendant contested the suit and resisted partition inter alia on the ground that the plaintiff should have included the other property that was in his exclusive possession, as the same would belong to the joint family properties. He also denied the fact that the A-1 and B-1 properties were purchased exclusively by the plaintiff out of his own earning. He asserted that those properties were also joint family properties. However, the house was constructed exclusively by the defendant no.1 and as such he must be allowed to exclusively possess the same. The learned Judge rejected the contention of the appellant being defendant no.1. The learned Judge also rejected the contention of the defendant no.3 being the cousin brother that he had also right over plot no.199 and 2000 to the extent of 1/4th share. Pertinent to note, the defendant no.3 and 4 contended that their three sisters being DW 12, 13 and 14 also had share in the property. The learned Judge observed that the defendant no.3 could not produce any evidence in support of his claim to the extent of 1/4th share or the shares of his sisters. The learned Judge relied on the admission in the written statement that house on the plot no.199 and 200 was constructed by the plaintiff of his own. The learned Judge kept the said property out of the hotchpotch of partition. Learned Judge held that the house constructed on the scheduled land was a joint house of the plaintiff and the defendant no.1 having half share each. The learned Judge ultimately determined in the share of the parties to the extent that the plaintiff had half share in A-1 schedule land and B-1 schedule land and, accordingly, decreed the suit as against the contesting defendant no.1 and 3 and ex parte against the rest. Hence, this appeal by the defendant no.1.

ARGUMENT

Mr. Ghosal, learned counsel appearing for the appellant contended as follows :-

i)The learned Judge failed to ascertain the respective shares of the parties and erroneously declared the share of the plaintiff only. Hence, the decree could not be sustained.

ii)The suit should be remanded back to the learned Judge on limited count under Order 41 Rule 25 of the CPC to ascertain the respective shares of all the parties.

Elaborating his submissions, Mr. Ghosal contended that at least three defendants died during pendency of the suit and the plaintiff did not substitute themselves through their heirs. He further contended that the Nirupan Patra was not exhaustive in absence of the heirs of Nityananda not being a party to the same. Pertinent to note, Nirupan Patra was executed by father of the plaintiff and the defendant no.1 who was having half share in the property and the remaining unascertained half share belonged to Nityananda their uncle.

Mr. Ghosal lastly contended that when parties constructed their respective houses the Court should maintain the status quo and defendant no.1 should be allowed to retain the house claimed to have been constructed by him in exchange of other properties that may be allotted to the plaintiff upon payment of royalty, if any.

He relied upon the following decisions of the Apex Court :-

i) Makhan Lal and Another Vs. Sujan and Others

ii) Kochkunju Nair Vs. Koshy Alexander and Others,

iii) 2004 1 CLJ 430 (Satish Chandra Som & Ors. -VS- Tarak Nath Mahapatra & Ors.)

iv) 2009 II CLJ (Calcutta) (Sanghati Pal - VS- Prakash Adhuryya & Ors.)

v) Narendra Kante Vs. Anuradha Kante and Others,

Opposing the appeal Mr. Pushpendu Bikash Sahu, learned counsel appearing for the plaintiff/respondent contended that the plaintiff claimed partition only in respect of properties mentioned in schedule-A-1 and B-1. The plaintiff purchased these two properties out of his own earning. Since the said properties were purchased in the joint name of the defendant no.1 as well the plaintiff was entitled to claim partition and the suit was maintainable. On the issue of other defendants making them parties, Mr. Sahu contended that they were owners of the adjoining plots inheriting from the erstwhile vendors. They were made proforma defendants only for the purpose of proper adjudication. Three of the said defendants died during pendency of the suit. In absence of their substitution, the suit could not fail.

On the issue of Nirupan Patra Mr. Sahu contended that by the said Deed of Settlement the other properties were given to the defendant no.1. The plaintiff only got a plot no.199 and 200 to the exclusion of other properties. The defendant no.1 also got properties from their mother. Be that as it may, in absence of an appropriate challenge to the said Nirupan Patra the defendant no.1 was not entitled to any share in respect of the said plot. He further contended that it was not necessary to have ascertainment of shares of the other defendants. It was an admitted position that the plaintiff and the defendant no.1 became the owner of the scheduled properties through the purchase made by the plaintiff. Hence, they were having half share each. No further ascertainment was necessary. He further contended that the defendant nos.3 and 4 or their sisters did not challenge the decree wherein their claim in respect of plot no.199 and 200 was specifically rejected. The defendant no.1 was not entitled to espouse their cause. He relied on a Single Bench decision of this Court in the case of Arabinda Singha Mahapatra -VS- Dr. Nalinaksha Singha Mahapatra & Anr. reported in 2007 II WBLR (Cal) 150.

OUR VIEW

From the rival contentions we find three issues being germane to the present appeal -

i). Was the learned Judge right in decreeing the suit in favour of the plaintiff without ascertaining the respective shares of the proforma defendants?

ii). Was the appellant entitled to claim inclusion of plot no.199 and 200 within the hotchpotch of the partition ignoring the Nirupan Patra referred to above?

iii) Is the appellant entitled to claim retention of the house constructed on the plot of land being joint property involved in the partition suit?

SHARE DISPUTE

The plaintiff admittedly purchased the property in question through different Deeds mentioned in the plaint. He adduced evidence to that extent. The purchases were made in the name of the plaintiff and the defendant no.1 jointly. Once the plaintiff is ready and willing to recognize the right of the defendant no.1 having half share in those properties and the proforma defendants are not coming forward to stake any claim on such assertion the learned Judge was right in declaring half share of the plaintiff and thereby as a consequence the balance half share would automatically go to the defendant no.1. No further ascertainment was necessary. The provisions of Order 41 Rule 25 would thus have no application.

NIRUPAN PATRA

The Nirupan Patra was not under challenge. By the said document the defendant no.1 also derived absolute right over other properties to the exclusion of the plaintiff being the respondent herein. Once he was a beneficiary under the said document he would have to accept the document as a whole that would also include the plaintiff''s exclusive right over the plot no.199 and 200. The defendant nos. 3 and 4 claimed that they had share over the said property along with their three sisters. The learned Judge rejected such contention. The said defendants and/or their supporters accepted the decision and did not challenge the decree. The defendant no.1, in our view, is not entitled to espouse their cause. Hence, the said property could not come within the hotchpotch of partition and the contentions in this regard raised by Mr. Ghosal are rejected. Nirupan Patra was specific. The heirs of Nityananda did not come to challenge the exclusive right of the plaintiff to own the said property. We are unable to find out any logic in the submission of Mr. Ghosal on that score when his father specifically excluded him from the said property in the said Nirupan Patra.

In the case of Narendra Kante (Supra) the Apex Court observed that in absence of appropriate signature of a co-sharer the family settlement in his absence was not enforceable. The Apex Court further held that the co-sharer after acting upon such settlement would have no right to contend that the settlement was invalid. In the present case, the appellant took advantage of the benefit which he derived from the Nirupan Patra. Hence, his contentions challenging the right of the plaintiff derived from the said Nirupan Patra would be of no consequence.

STATUS QUO

Mr. Ghosal put lot of emphasis on the decision in the case of Satish Chandra Som (Supra). The Division Bench of this Court held that every share holder had a right over every inch of the joint property. However it would not be proper in each and every case to restrain a share holder from making any construction and waiting for eternity to have an effective partition. Mr. Ghosal also relied upon Sanghati Pal (Supra), Makhan Lal (Supra) and Kochunju Nair (Supra) in this regard. The abstruct proposition of law is not in dispute. We are not oblivion of the fact that when a joint property would involve complex calculation of share in between the joint owners having a wider inheritance down the brunch line it would cause immense hardship for a co-owner to wait for eternity to have construction for dwelling purpose. It would exclude enjoyment of the property when in exclusive possession of any shareholder. In our view, a shareholder is entitled to enjoy a joint property by possessing the same by way of retention, development and use in various ways. In the process, if someone constructs such construction could not be held per se illegal, however it would run a risk particularly when that construction is made on an undemarcated portion. To be more specific, any party can enjoy any portion of the property and such enjoyment can be of any nature including residing there by way of construction. However it would be subject to the demarcation and partition at the instance of other co-owners. Once a co-owner files a suit for partition it would automatically come within the hotchpotch. We however feel that the Court or the partition commissioner may take note of the fact that while effecting partition the respective possessions could be retained as far as practicable and possible. There could not be any straitjacket formula on the same.

Coming to the factual matrix, we find that the parties had only one residential house having portions in the respective possession of both the parties. Nothing came out in evidence that would show that the house was in exclusive possession of the appellant. The plaintiff also had a portion. It would be travesty of justice to deny partition of the said premises if it is otherwise possible. Admittedly, this is the only dwelling house in the joint possession of the parties. We hope and trust that the Commissioner would certainly consider as to whether the property could be partitioned by retaining the respective possessions as far as practicable while dividing the house in two equal parts. We are unable to accede to the claim of the appellant that he must be given the exclusive ownership of the said house in question. We are prompted to say so as we find that in case of Arabinda (Supra), our Division Bench held that in absence of a consent from the co-owner the party having constructed could not have any special right to retain the same. Our Division Bench relied on the apex Court decision in the case of Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh,

RESULT

The appeal thus fails and is hereby dismissed.

There would be no order as to costs.

Urgent Photostat copy will be given to the parties, if applied for.

Shukla Kabir (Sinha), J.

I agree.