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Hari Satya Banerjee and ors. Vs. Mahadev Banerjee and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata High Court
Decided On
Case NumberS.A. No. 973 of 1978
Judge
Reported inAIR1983Cal76
ActsHindu Law; ;Evidence Act, 1872 - Section 101; ;Hindu Minority and Guardianship Act, 1956 - Section 8; ;Contract Act, 1872 - Section 11; ;Transfer of Property Act, 1882 - Sections 5, 7, 8 and 54
AppellantHari Satya Banerjee and ors.
RespondentMahadev Banerjee and ors.
Appellant AdvocateS.C. Mitter, ;S.P. Roy Chowdhury and ;Amit K. Rakshit, Advs.
Respondent AdvocateMoni Mohan Mukherjee, Adv.
DispositionAppeal partly allowed
Cases Referred(Narendra Nath v. Hrishikesh
Excerpt:
- a.k. sen, j. 1. this is an appeal from an appellate decree. defendant no. 1 and defendants nos. 3 to 10 are the appellants before us. it arises out of a suit for partition on declaration of plaintiffs 2/3rd share in the suit properties. the suit properties were 11 plots of land appertaining to 4 khatians set out in the plaint schedule. of these 11 plots 3 plots have been excluded from the suit concurrently by the two courts upon a finding that in respect of these 3 plots, the plaintiff had failed to make out any casefor partition. these 3 plots are dag nos. 4882, 4884 of khatian no. 860 and dag no. 4519 of khatian no. 826. as regards the rest eight plots in suit viz. plots nos. 4885, 4886, 4941, 4995, 4949, 4950 of khatian no. 860, plot no. 294 of khatian no. 862 and plot no. 4766 of.....
Judgment:

A.K. Sen, J.

1. This is an appeal from an appellate decree. Defendant no. 1 and defendants Nos. 3 to 10 are the appellants before us. It arises out of a suit for partition on declaration of plaintiffs 2/3rd share in the suit properties. The suit properties were 11 plots of land appertaining to 4 khatians set out in the plaint schedule. Of these 11 plots 3 plots have been excluded from the suit concurrently by the two Courts upon a finding that in respect of these 3 plots, the plaintiff had failed to make out any casefor partition. These 3 plots are Dag Nos. 4882, 4884 of khatian No. 860 and Dag No. 4519 of khatian No. 826. As regards the rest eight plots in suit viz. plots Nos. 4885, 4886, 4941, 4995, 4949, 4950 of khatian No. 860, plot No. 294 of khatian No. 862 and plot No. 4766 of khatian No. 908 while the trial Court decreed the suit declaring 1/3rd share in favour of the plaintiff overruling the plaintiff's claim of acquisition of the other 1/3rd share from defendant No. 2, the Court of appeal below decreed 2/3rd share in favour of the plaintiff upholding the plaintiff's claim of acquisition of such share.

2. The plaintiff's case shortly was that the suit properties along with other properties once belonged to one Ashutosh Banerji and on his death such properties were inherited by 3 sons of Asutosh, namely, Hari satya (defendant No. 1). Gadadhar, since deceased, father of Jiban Santi (defendant No. 2) and Mahadev (plaintiff). The maternal grandmother of Jiban Santi, Jalad Barani Debi instituted Title Suit No. 50 of 1945 on behalf of the minor for partition of the properties inherited by the minor constituting the estate of Asutosh. Such suit was decreed on compromise on June 28, 1946, and all the properties left behind by Ashutosh were partitioned between the parties except the properties set out in Schedule D to the compromise petition (Ext. F) which was left Ejmali between the three co-sharers. According to the plaintiff, the suit properties are the properties incorporated in the said Schedule D of the compromise decree which were left joint between the parties. The plaintiff claims 1/3rd share by inheritance from Asutosh and the other 1/3rd share by two purchases from defendant No. 2. The first of such purchases by the plaintiff was effected on Sept. 11, 1946 (Ext. 1) when the said Jalad Barani as the guardian of the minor sold the 1/3rd share of the defendant No. 2 in 3 out of the suit plots, namely, plots Nos. 4945, 4949 and 4950 in favour of the plaintiff. The deed of sale (Ext. 1) recites that such sale was being effected for the legal necessity of the minor of repaying the loan incurred for conducting the partition suit and meeting the medical expenses for the minor. The minor Jiban Santi attained majority on April 1, 1949. Second of such purchases by the plaintiff was made directly from defendant No. 2 on January 27, 1960 by the sale deed Ext. la whereby the said defendant conveyed not only the 3 plots originally conveyed by his maternal grandmother on his behalf but also 6 other plots, being 4885, 4886, 4941 of khatian No. 860, plot No. 4887 of khatianNo. 861, plot No. 2941 of khatian No. 862 and plot No. 4766 of Kb. 90S. By these two purchases, the plaintiff claimed to have acquired 1/3rd share in the suit property which originally belonged to the minor Jiban Santi, his nephew.

3. The two Courts below have con-currently found that plots Nos. 4882, 4884 and 4519 were neither covered by Schedule D of the compromise decree nor covered by the two purchases made by the plaintiff from defendant No. 2 and on such a finding those 3 plots have been excluded from file suit. Such a finding has not been challenged by either of the parties. The dispute now before as is limited to 8 plots out of the plaint schedule.

4. The suit was contested by defendants Nos. 1 and 5 and principally by defendant No. 1. According to the contesting defendants the sale dated Sept. 11, 1946 effected by Jalad Barani on behalf of the minor in favour of the plaintiff (Ext. 1) in respect of fltree plots was an invalid transfer as she was neither the natural guardian nor the guardian appointed by the Court in respect of the minor or his properties. On the other hand, the defendants claimed that the defendant no. 2 during his minority by deed of sale (Est. A) dated Dec. 23, 1947, sold his 1/3rd share in the seven out of the aforesaid eight suit plots (excluding plot No. 4950) along with a few other plots in favour of Kalinath Banerjee defendant No. 11 who is the son of defendant No. 1. Such sale was again ratified by defendant No. 2 when he attained majority by a deed of release dated April 7, 1949 (Ext. B). According to the defendants, the defendant No. 2 further executed a deed of sale dated April 7, 1949 (Ext. A/1), in favour of the said Kalinath in respect of his 1/3rd share in the 3 plots namely, 4945. 4949 and 4950 which were originally sold to the plaintiff by Jalad Barani for him and on his behalf. According to the defendants, defendant No. 11 in his turn transferred the said 1/3rd share in the plots purchased from defendant No. 2 by the deed dated Dec. 23, 1947, in favour of defendant No, 1 and the defendant No. 1 in 1975 sold his share in plot No. 4766 in favour of defendants NOS 3 to 10.

5. Thus, we find that though the plaintiff's 1/3rd share in the 8 plots is not disputed there were successive transfers of the share belonging to defendant No. 2, some during his minority and some after he had attained majority and the question is which of these transfers should prevail. The learned sub-ordinate Judge in the trial Court held that lalad Barani, the maternal grandmother of defendant No. 2 not being the natural guardian or the guardian appointed by the Court was not competent to effect the sale on behalf of the minor in respect of 3 plots 4945, 4949 and 4950 as she did by the deed of sale dated Sept. 11, 1946 (Ext. 1). He further found that the necessity for the sale as recited in the document not having been proved aliuude the minor's share in the property could not have been validly transferred at all.

6. It was further found that the said transfer by Jalad Barani on behalf of the minor was a sham transaction as would be evident from the fact that the plaintiff himself purchased the very same 3 plots covered by the said deed dated Dec. 23, 1947 once again from defendant No. 2 in the year I960 (Ext. la) as and when he attained majority, though at that time the said defendant could not have any interest in those plots if the earlier sale on his behalf during his minority had been a genuine one. The learned subordinate Judge further upheld the claim of the contesting defendant when he found that defendant No. 11 and through him the defendant No. 1 acquired the l/3rd share of defendant No. 2 in the 8 plots in dispute by virtue of the 3 deeds Ext. A dated Dec. 23, 1947 and Exts. B and A/1 both dated April 7, 1949. He held that though Ext. A was a sale deed executed by defendant No. 2 while he was still a minor, such sale was perfected by the deed of release Ext. B whereby the defendant No. 2 after attainment of majority disclaimed all his right, title, interest and possession in plots sold. Hence according to the learned Subordinate Judge, defendant No. 11 and through him defendant No. 1 validly acquired the right, title and interest of defendant No. 2 in the plots so sold to defendant No. 11. Of the 8 plots in suit again, 3 were independently sold by defendant No. 2 after he had attained majority by the Kobala dated April 7, 1949 (Ext. 1) to defendant No. 11. As a result the learned Subordinate Judge concluded that the plaintiff could acquire no interest from the defendant No. 2 by his later purchase dated Jan. 27, 1960 vide Ext. la because on that day the vendor defendant No. 2 had no interest in the disputed plots which he could convey. The learned Subordinate Judge incidentally found that defendant No. 1 being in possession of the share of defendant No. 2 in the disputed 3 plots by virtue of such purchase for more than 12 years be acquired title thereto by adverse possession.

In the result, the learned Subordinate Judge declared 1/3rd share of the plaintiff in the disputed 8 plots and directed partition in respect of six out of these eight plots 4885 and 4950 were found impartible.

7. On an appeal by the plaintiff the learned Additional District Judge has reversed the decision of the learned Subordinate Judge when he upheld the claim of the plaintiff's purchase of the 1/3rd share of defendant No. 2 in the disputed 8 plots by the two purchases dated Sept. 11, 1946 and Jan. 1, 1960. The learned Additional District Judge held that Jalad Barani sold on behalf of the minor defendant No, 2 his 1/3rd share in the three plots 4945, 4949 and 4950 to meet a legal necessity of the minor acting as his de facto guardian. Such a transfer was not void but was Voidable at the instance of the minor and since the minor within 3 years of his attaining majority had not effectively annulled the same, the sale would stand. As -for the other 5 plots, according to the learned Additional District lodge the plaintiff acquired the 1/3rd share of defendant No. 2 therein by his purchase dated Jan. 27, 1960 (Ext. la) executed by defendant No. 2 after he had attained majority. According to him, the plaintiff acquired the share of defendant No. 2 therein by the said transfer notwithstanding the earlier sale by defendant No. 2 dated Dee. 23, 194-7 (Ext. A) in favour of defendant No. 11 and the deed of release dated April 7, 1947 (Ext. B). The sale dated Dec. 23, 1947 by defendant No. 2 was held to be altogether void because the transferor-executant was at the relevant time a minor and, as such, was not competent to effect the transfer by himself. The original transaction being void it could not be rendered valid by a subsequent ratification by the deed of release dated April 7, 1947 (Ext. B). In the result the Court of Appeal below declared plaintiffs' 2/3rd share in the disputed eight plots and directed partition thereof in terms of the order of the learned Subordinate Judge. Feeling aggrieved, the defendant No. 1 and defendants Nos. 3 to 10 have preferred the present second appeal to this Court.

8. Mr. Mitter appearing in support of this appeal has strongly assailed the decision of the learned Additional District Judge. According to Mr. Mitter the trial Court was right in its conclusion that the plaintiff could acquire no title to the 3 plots 4945, 4949 and 4950 by the Kobala dated Sept. 11, 1946 (Ext. 1) executed by Jalad Barani on behalf of minor defendant No. 2 Such a salehaving been effected by a person who was neither the natural guardian nor the guardian appointed by the Court for the minor and the plaintiff having further failed to establish the alleged legal necessity for the sale it was voidable at the instance of the minor in the sense that the minor could repudiate the transfer on his attaining majority and he has done so in the present case. Mr. Mitter contends that such sale could stand only if the minor bad ratified the same after attainment of majority. According to Mr. Mitter the learned Additional District Judge was acting on a misapprehension that such a sate was voidable in the sense that unless it is avoided by the minor on his attaining majority by a judicial rescission it would be a valid and binding transaction so far as the minor is concerned. It is contended by Mr Mitter that the minor having repudiated the transfer by his subsequent sale of the very same three plots in favour of defendant No. II dafed April 7, 1949 (Ext. A/1) the plaintiff could acquire no interest from defendant No. 2 in those 3 plots. On the other hand it was defendant No. 11 and through him the defendant No. 1 who validly acquired the 1/3rd interest of the defendant No. 2 in those 3 plots by the purchase dated April 7, 1949 as above. So far as the other 5 plots are concerned, according to Mr. Mitter the learned Additional District Judge may be right in his conclusion that the transfer by defendant No. 2 during his minority dated Dec. 23, 1947 (Ext. A) was a void transaction and the learned Judge may be further right in his view that a transaction which is void cannot be rendered valid by the subsequent ratification, but he failed to take note of the fact fhat the so-called deed of release Ext. B when properly construed would appear to be a deed of independent conveyance capable of conferring on its own terms title to the land covered by it on the person in whose favour it was being executed. Necessarily therefore defendant No. 11 having acquired the 1/3rd share of defendant No. 2 in those plots, the plaintiff could acquire no interest by his subsequent purchase from defendant No. 2 dated Jan. 27, 1960 (Ext. 1 (a)).

9. Mr. Mukherji appearing on behalf of the plaintiff/respondent has contested all the points raised by Mr. Mitter. According to Mr. Mukherji, Jalad Barani Debi, the maternal grandmother was undisputedly acting as a guardian for the minor as would appear dear from the compromise decree (Ext. F) passed in a suit brought by the minor against his two uncle, namely, the present plaintiffand the present defendant No. J. When she as such a guardian sold the 3 plots, namely, 4945, 4949 and 4950 to meet the legal necessity of the minor such a transfer is binding on the minor because of such necessity even if the transfer was made not by the natural guardian or the guardian appointed by the Court but by the de facto guardian. On the materials on record, Mr. Mukherjt contends that the Court should have held that existence of the legal necessity as recited in the deed (Ext. I) being highly probable there was no scope for the minor either to repudiate or annul the sale of these 3 plots made on his behalf by Jatad Barani. As for the said 5 plots it has been strongly contended by Mr. Mukherji that Ext. B which is described as a deed of release is nothing but a deed of ratification and it cannot be interpreted as an independent conveyance for any lawful consideration. Such being the position, the earlier sale (Ext. A) in favour of defendant No. 11 by the minor during his minority being altogether a void transaction it was rightly held by the Court of appeal below that the same cannot be rendered valid by the subsequent deed of ratification. So far as the independent purchase (Ext. A/1) by defendant No. 11 of 3 plots, namely, 4945, 4949 and 4950 is concerned, the purchaser could acquire no interest by such purchase because the vendor had lost all his right, title and interest by the earlier sale in favour of the plaintiff dated Sept. 11, 1946 (Ext. 1). Hence, according to Mr. Mukherji, the Court of appeal below had rightly upheld the plaintiff's claim of acquisition of 2/3rd share in the disputed 8 plots -- 1/3rd by inheritance and 1/3rd by purchase from defendant No. 2.

10. The rival contentions thus put forward before us raise certain important issues. We propose to consider these contentions separately having regard to the transfers in respect of plots 4945, 4949 and 4950 and those in respect of the rest five plots. We propose to do so independently because the first sale in respect of the aforesaid 3 plots raises an independent issue as to its validity being effected by the maternal grandmother acting as the guardian of the minor though she was not the natural guardian or the guardian appointed by the Court.

11. It would appear from Ext. 1 executed on Sept. 11, 1946 that minor's 1/3rd share in the 3 plots 4945, 4949 and 4950 was being sold in favour of the plaintiff to repay the loan incurred for meeting the expenses of the partition suit with the co-sharers andalso for meeting the medical expenses of the minor. Unfortunately the legal necessity so recited in the document was not established at the trial by the plaintiff on any independent evidence. Nor did the plaintiff who was himself the purchaser lead any evidence to show that he made reasonable enquiries to satisfy himself about the existence of the legal necessity so recited. This omission on the part of the plaintiff has landed him into a difficult situation because in the absence of any proof in that regard the transfer becomes voidable at the instance of the minor when he attains majority. According to Mr. Mukherjee the document is more than 30 years old. The other evidence on record regarding minor's suit for partition which ended in a compromise just prior to the sale renders existence of the necessity highly probable and as such it should be held that the sale was really based on a legal necessity. Reliance is placed on the well known decision of the Privy Council in the case of Banga Chandra v. Jagat Kisore ((1916) 43 Ind App 249) : (AIR 1916 PC 110). We are, however, unable to accept this contention of Mr. Mukherjee as said by Mayne : 'Recitals in an instrument of mortgage or sale that it was executed for a particular purpose are not by themselves evidence either of the existence of the purpose or of the adequacy of the enquiry. The alienee or the creditor is bound to adduce some independent evidence of such circumstances'. Even the decision relied on by Mr. Mukherjee affirms the said principle and then goes on to say that when evidence of actual enquiry by the transferee has become impossible, the recital coupled with circumstances which justifies a reasonable belief that an enquiry would have confirmed its truth is sufficient evidence to support the deed. In the present case the document may be an old one of the year 1946 but it is not too old and the purchaser himself is alive and he examined himself as a witness in the suit. It was, therefore, not impossible for him to lead evidence on the point, such evidence not being lost by the lapse of time. He having omitted to do so, he cannot rely upon the recital and probabilities to prove the legal necessity. The evidence on record no doubt establishes that the minor was involved in a suit for partition with his co-sharers which ended in a compromise immediately prior to the sale. Such evidence may furnish foundation for an inference that the minor must have been involved in expenses for carrying on the litigation but we are unable to hold that the said fact corroborates the recital of legalnecessity as in the document because there is nothing to show that the minor had to incur any loan or that the minor had no independent resources to carry on the said litigation. Therefore, we must uphold the finding of the learned Subordinate Judge that the plaintiff having failed to establish the legal necessity for the transfer or an adequate enquiry on his part as a purchaser in that regard, the sale became voidable at the instance of the minor when he attained majority.

12. Relying upon a Single Bench decision of this Court in the case of Manmohan Bhattacharya v. Bindu Bhusan, AIR 1939 Cal 460 : 69 Cal LJ 188 the learned Additional District Judge has taken the view that the sale by the guardian of a Hindu minor of minor's property when there is no legal necessity for such sale is not void but is voidable in the sense that it is required to be set aside by the minor by a suit and unless the transfer is so annulled by a judicial rescission it would remain a valid transaction binding on the minor. It has, however, been rightly pointed out by Mr. Mitter that the said decision is clearly distinguishable because there the sale was by the natural guardian and for legal necessity which was otherwise established. That was not a case of transfer by a de facto guardian as in the present case. In the case of a transfer by a de facto guardian the position, however, is somewhat different. Our attention has been drawn to para 239 of Mayne's Hindu Law and to the following observation in particular, namely :

'An improper alienation of property belonging to a Hindu minor by his de facto guardian cannot be held to be binding on the minor until it is set aside although if may be voidable in the sense that he may elect either to ratify it or avoid it by treating it as a nullity.'

Our attention has also been drawn to another Single Bench decision of this Court in the case of Panchu v. Hrishikesh Ghose, : AIR1960Cal446 and a decision of the Orissa High Court in the case of Narayan Prosad Rath v. Sukumani, ILR (1964) Cut 298 in support of the contention that the learned Additional District Judge was proceeding on an erroneous premises when he held that the sale dated Sept. 11, 1946 (Exhibit 1) is binding on the minor until it is set aside. On a careful consideration of the legal position we feel no hesitation in accepting the contention of Mr. Mitter in this regard. The position of a de facto guardian is materially different from that of a natural guardian or a guardian appointed by the Court. While the latter as the guardian in charge of the minor and his estate is clothed with the power to transfer subject to the limits prescribed by the law and as such there is no inherent lack of authority on the part of such a guardian to make the transfer, such is not the position of a guardian de facto who is none but a total outsider, who had imposed himself as a guardian. It was pointed out by the Federal Court in the casa of Kondamudi Sriramlu v. Mynoni Pundari-kakshayya, AIR 1949 FC 218, that a transfer effected by such a de facto guardian is really an ultra vires act but even then the law recognises such a transfer if it was for the benefit of the minor or to meet his legal necessity or where though not based on any such necessity it is ratified by the minor on his attaining majority. Such a transfer being in the nature of an ultra vires act it ig open to the minor when he attains majority to repudiate it if it was not for his benefit or for his necessity. He can repudiate it by merely refusing to accept the transfer and continue to enjoy and possess the property so transferred in his own rights or by claiming recovery of possession thereof if he had been dispossessed. It is not necessary to have a judicial rescission of such a transfer because the transfer in substance being by an unauthorised person is not rendered valid except upon ratification. Here in the present case, though the sale dated Sept. 11, 1946 had not been rescinded by a suit or judicial proceeding, yet there is ample evidence on record to show that the minor when he attained majority refused to recognise the transfer, continued to remain in possession and enjoyment of the lands transferred and then transferred the same in favour of defendant No. 11 in exercise of his own rights by the sale deed dated April 7, 1949 (Ext. A/1). Therefore, it has been rightly contended by Mr. Mitter that the legal necessity for the sale not having been proved and the minor after attaining majority having repudiated the sale by refusing to accept the transfer as a valid one, it must be held that the plaintiff could acquire no title to these 3 plots by his purchase from Jalad Barani acting as the guardian for the minor defendant No 2. This position is further supported by the fact that -the plaintiff himself on Jan. 27, 1960 obtained a fresh transfer from defendant No. 2 of the very same 3 plots along with others ona clear assertion by defendant No. 2 of his existing title and possession in respect of the same which is wholly inconsistent with the earlier transfer on his behalf by the de facto guardian. So far as these 3 plots are concerned, the plaintiff could acquire no title by his second purchase from the defendant No. 2 dated Jan. 27, 1960 (Ext. la) because the said defendant No. 2 had on that date no subsisting right, title or interest in those three plots which he had in the mean time sold to defendant No. 11 on April 7, 1949 (Ext. A/1). In that view we must uphold the conclusion of the learned Subordinate Judge that the 1/3rd share of the defendant No. 2 in so far as the aforesaid 3 plots are concerned, enured to defendant No. 11 and through him to defendant No. 1 and the plaintiff had failed to establish that he validly acquired the share of defendant No. 2 in the aforesaid 3 plots.

13. Next we proceed to consider the claim of the plaintiff in respect of the other 5 plots. It is not in dispute that defendant No. 2 transferred the 5 plots in favour of the plaintiff by the sale deed dated Jan. 27, 1960 (Exhibit la) after he attained majority. Title said to have been acquired by this deed would prevail unless it is established, as claimed by the defendants, that the defendant No. 2 had divested himself of his share in these 5 plots by his earlier transfers made in favour of defendant No. 11 and through him to defendant No. 1. It appears that on Dec. 23, 1947 when defendant no. 2 was still a minor he executed a deed of sale (Ext. A) in respect of a number of plots including the disputed 5 plots in favour of defendant No. 11. Mr. Mitter in his fairness has not disputed that this is altogether a void transaction and defendant No, 11 acquired no right, title or interest from defendant No. 2 by such purchase. It further appears that after attainment of majority, the said defendant No. 2 again executed a deed described as a deed of release (Ext. B) in favour of defendant No. 11 with regard to the plots ineffectively conveyed by his earlier sale as aforesaid. While the learned Subordinate Judge has held that the original sale dated Dec. 23, 1947 supported by the disclaimer dated April 7, 1949 perfected the title of defendant No. 11, the purchaser, the Additional District Judge has held that the original sale being void it could not have been perfected by the subsequent ratification. In our view, the learned Additional District Judge is right in his conclusion. Mr. Mitter again has not disputed the correctness of that conclusion of the lower appellate Court.

He has, however, taken, a different stand before us. According to Mr. Mitter the deed (Ext B) dated April 7, 1949 should be construed having regard to the substance of its contents whatever be its description and so construed it should be held that it does constitute an independent conveyance of the plots covered by the document though the consideration may be acknowledgment of the consideration received during his minority when he executed the sale deed dated Dec. 23, 1947. Mr. Mukherji appearing on behalf of the respondent has strongly disputed the position that the consideration paid to defendant No. 2 during his minority when he executed the deed dated 23-12-47 can be any valid consideration for a subsequent transfer by the minor when he attains majority. Reliance was placed by Mr. Mukherji on some earlier decisions of this Court on the point but in our opinion it would not be necessary for us to go into this aspect because in our considered opinion it is not possible for us to construe the deed dated April 7, 1949 to be an independent conveyance by defendant No. 2 in favour of defendant No. 11.

14. Mr. Mitter may be right in his contention that Ext. B, the deed of release dated April 7, 1949 must be read having regard to its substance irrespective of the description of the document. A deed though deicribed as a deed of disclaimer or a release may be construed on its terms to constitute a conveyance or a gift if in substance it amounts to such as pointed out by the Supreme Court in the case of Kuppuswami Chettiar v. A. S. P. A. Armugam Chettiar, : [1967]1SCR275 . But there can be no dispute for the proposition that the document must be read on its terms to find out whether parties in substance intended to convey one's title to the other and whether the operative words of the deed sufficiently do so or not. When we refer to this document we find that it opens with a recital that it is a deed of release. The executant then goes on to recite that he during his minority executed a deed of sale dated Dec. 23, 1947 on acceptance of a consideration of Rs. 400/- from the releases in respect of the plots specified in the Schedule. Then it goes on to recite that the executant was a minor at the time when he executed the said sale deed and had it registered but he has attained majority since thereafter. It is further stated that since the sale was effected during minority the executant had been requested by the recipient to execute a deed of release and on such request the deed of release was being executed. On such a recital the operative portion of the document goes on to state that the releasee since his purchase had owned and possessed the lands so purchased in his own rights and that the executant had never been in possession since then. It is then recited that the executant will have no objection to the releasee and/or his heirs and legal representatives enjoying the properties so purchased possessed of full rights for transfer as he had been doing since the purchase. It is contended by Mr. Mitter that in this document the executant having acknowledged the transfer reaffirmed that the purchaser would go on enjoying the property so purchased in his own rights from generation to generation with every right to transfer the same. This, it is contended by Mr. Mitter constitutes re-transfer of what was originally, transferred and, as such, it constitutes a conveyance. We are, however, unable to accept such an interpretation of the document. To us it appears that by this the parties intended to ratify the earlier transaction and that exactly was done by the document in clear terms. What is being reaffirmed is what the releasee had been doing since the original purchase and the executant, merely ratifying his earlier act, acknowledges that he or his successor-in-interest would raise no objection to the enjoyment by the releasee of the land earlier sold on his own rights from generation to generation under the original purchase. The document does not even purport to release any existing right, title or interest hi favour of the releasee far less to effect conveyance of any such right, title or interest. Though described as a deed of release it is clearly a deed of ratification. In that view, the decisions relied on by Mr. Mitter can be of no help to him and we must uphold the view of the learned Additional District Judge that by this deed of ratification which has been described as a deed of release the defendant No. 11 and consequently through him, defendant No. 1 could acquire no title to the disputed 5 plots because original transfer being void it could not be validated by the ratification. (Narendra Nath v. Hrishikesh, AIR 1919 Cal 875). Necessarily the plaintiffs claim of acquisition of 1/3rd share in these 5 plots by virtue of his second purchase dated Jan. 27, 1960 (Ext. la) must be upheld. Parties being admittedly co-sharers and no case of ouster having been made out, the conclusion of the learned Subordinate Judge that defendant No. 1 acquired title, to the 1/3rd share by adverse possession cannotalso be supported. Mr. Mitter too has not pressed such a point before us.

15. In the result, the appeal succeeds in part. The decree passed by the Court of appeal below stands modified to the extent following : The plaintiffs suit be decreed in part in preliminary form. His 1/3rd share in plots 4945, 4949 and 4950 is declared while it is further declared that the plaintiff has 2/3rd share in the other 5 plots, namely 4885, 4886, 4941, 4766 and 294. Defendant No. 1 be declared to have 2/3rd share in the 3 plots, 4945, 4949 and 4950 and 1/3rd share in plots 4885, 4886, 4941 and 294. It be further declared that the defendant Nos. 3 to 10 have the remaining 1/3rd share in plot 4766 by virtue of their purchase from, defendant No. 1. The parties are directed to effect partition by metes and bounds in their charges as aforesaid in terms of the order of the learned Judge in the trial Court. The prayer for partition in respect of plots 4882, 4884 and 4519 stands dismissed. Par-tics do bear their costs in this Court.

16. Let the decree be drawn up expeditiously and records be sent down forthwith.

Chakraborti, J.

I agree.


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