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Mahabir Saha Vs. Haripada Saha and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 622 of 1969
Judge
Reported inAIR1982Cal353
ActsContract Act, 1872 - Sections 16 and 17; ;Evidence Act, 1872 - Sections 21 and 101-104; ;Registration Act, 1908 - Section 17(1) and 17(2)
AppellantMahabir Saha
RespondentHaripada Saha and ors.
Appellant AdvocateRathindra Prasanna Sanyal and ;Amaresh Chandra Bhattacharyya, Advs.
Respondent AdvocateRam Mohan Bhattacharjee, ;Anilananda Mukherjee and ;Basanta Kumar Datta, Advs.
DispositionAppeal allowed
Cases ReferredBharat Singh v. Mst. Bhagirathi
Excerpt:
- .....no. 1 and illiteracy of the plaintiff no. 2, haripada committed fraud and it was recited in the deed of lease that the plaintiffs had only l/3rd share and mahabir had 2/3rd share therein and sum of rs. 5000 had been paid by him from his own fund. in fact, mahabir had no much money. that sum was paid by him from the profits of the joint property. the plaintiffs experienced difficulty and they asked for partition. but mahabir did not comply with the demand. hence the suit for partition on the allegation that the plaintiffs had 8 annas share in the property in question.2. defendant no. 2 milan bala filed a written statement supporting the plaintiff's assertions.3. defendant no. 1 filed a written statement denying the plaintiffs' allegations. his case is that after the death of gopal.....
Judgment:

B.N. Maitra, J.

1. The plaintiffs allege that the disputed property originally belonged to one Abdul Sobhan Khan and after his death that property was acquired by many persons. Gopal Chandra Saha was the father of defendant No. 1, Maha-bir, and grandfather of plaintiff No. 1. In 1928, Gopal expired leaving Mahabir, Haralal (son) and one Milan Bala, defendant No. 2, who is the widow of his predeceased son, Krishnalal Saha. Haralal died in 1354 B.S. leaving his widow and son (plaintiff No. 1), Haripada Saha, Gopal Chandra was the owner of premises No. 55, Subal Das Road, 35, Nawabgunj Road, 50/1, Subal Das Road and 47, Nawabgunj Das Road within the Dacca Municipality. Since Milan Bala was not an heir of Gopal Chandra, he made provision for her maintenance by making a gift of 2 rooms of his residential house for her and also providing for a sum of Rs. 6 per month for her maintenance. After partition of Bengal the plaintiffs, defendant No. 1 and defendant No. 2 migrated to West Bengal. Defendant No. 1 was the Karta of the Hindu joint family. An arrangement was made with the heirs of Abdul Sovan Khan that an exchange would be made. The valuation of the Dacca property was assessed at Rs. 17,000 and of the Dum Dum property in Calcutta at Rs. 22,000. Powers of Attorney were executed. The plaintiffs and defendant No. 1 executed a power of Attorney in favour of the Muslim co-owners. The latter also executed a power of Attorney in favour of defendant No. 1 because the plaintiff No. 1' was a minor and plaintiff No. 2 an illiterate woman. In September, 1950, the parties delivered possession of the respective properties in terms of the power of Attorney. Then defendant No. 1 realised the rents of the disputed property on his behalf and on behalf of the plaintiffs. Then on the 26th Nov. 1956, a document of lease was executed regarding the disputed property at 23/1/B, Dum Dum Road, Calcutta. Since the plaintiff No. 1 was then a minor and his mother an illiterate pardanasin woman, they had to depend entirely on Mahabir in the matter of execution of the leaseThe said plaintiff and defendant No. 1 had moiety share in the Dacca property and consequently they acquired 1/2 share each in the Calcutta property on the footing of the document of such lease. It appears that taking advantage of tha minority of the plaintiff No. 1 and illiteracy of the plaintiff No. 2, Haripada committed fraud and it was recited in the Deed of Lease that the plaintiffs had only l/3rd share and Mahabir had 2/3rd share therein and sum of Rs. 5000 had been paid by him from his own fund. In fact, Mahabir had no much money. That sum was paid by him from the profits of the joint property. The plaintiffs experienced difficulty and they asked for partition. But Mahabir did not comply with the demand. Hence the suit for partition on the allegation that the plaintiffs had 8 annas share in the property in question.

2. Defendant No. 2 Milan Bala filed a written statement supporting the plaintiff's assertions.

3. Defendant No. 1 filed a written statement denying the plaintiffs' allegations. His case is that after the death of Gopal Chandra, Haralal sold his undivided 1/2 share in the premises No. 50, Subal Das Road to a stranger. Haralal also mortgaged premises No. 55, Subal Das Road for Rs. 1000. Defendant No. 1 paid that debt and obtained the deed of mortgage from the mortgagee. Hence Haralal had the liability to pay this dues. After that arrangement for exchange was made, defendant No. 1 spent more than Rupees 4000 from his personal fund. He also paid Rs. 5000 in cash to the Muslim co-owners when the aforesaid deed of lease was finally executed.

4. The learned Subordinate Judge believed the plaintiffs' version and passed a decree in a preliminary form giving a direction for necessary accounts. This appeal is by the defendant No. 1.

5. It has been contended on behalf of the appellants that the deed of lease, Ext. 2, is binding on the plaintiffs and also on the appellant defendant No. 1, Plaintiff No. 2, mother of plaintiff No. 1, la not an illiterate or pardanasin woman. The permanent deed of lease, Ext. 2, was executed by her with full knowledge of its purport and contents. Both the documents were prepared by a lawyer and the lease in question was read over to plaintiff No. 2. Hence the plaintiffs cannot get any decree for 8 annas share in the property. Their share is l/3rd and hence the decree should be modified accordingly, Plaintiff No. 1' clearly acceptedthe document of lease, Ext. 2, and admit ted therein that the plaintiffs had only l/3rd share and for the remaining 2/3rds share of the property belonged to him.

6. The learned Advocate appearing on behalf of the plaintiff-respondent has referred to the well-known case of Hannuman Persuad in (1856) 6 MIA 393. It has been stated there that the guardian can alienate the minor's share or deal with his interest only for the benefit of the estate or legal necessity. There is no such legal necessity or any element of benefit of the minor plaintiff No. 1 when the deed of lease was 'executed. Reference has also been made to the cases of Chinta Desya v. Bhalku Das in (1930) 51 Cal LJ 465: (AIR 1930 Cal 591), Sm. Sonia Parshini v. Sheikh Moula Baksha in : AIR1955Cal17 and A. E. G. Carapiet v. A. Y. Derderian in : AIR1961Cal359 and Mohini 'Mohan v. Southern Bank Ltd., reported In (1954) 94 Cal LJ 39. It has been urged that when a person is dealing with a pardanasin illiterate woman, it is for him to show that the contents of the deed were read over and explained to her. It has also been stated that the privilege extended to a pardanasin lady will apply to an illiterate woman, though not pardanasin, Moreover there is no certificate in Ext. 2 that the documents were read over and explained. The omission of giving a certificate that the document was read over and explained to her cannot be lightly treated. If the document is not read over and explained to the plaintiff, defendant No. 1 cannot claim moiety share in the property due to such defects. Defendant No. 1 was the Karta at the relevant time, He had no personal fund when the disputed lease, Ext. 2, was executed.

7. The first question arises, whether the disputed lease, Ext. 2, is binding on the parties. It may be pointed out that there is no averment that the document of lease is not binding on the plaintiffs, The Muslim co-sharers of the Dacca properties have not been made parties to the suit. Plaintiffs did not make appropriate prayer that such document of lease was obtained by practising fraud or collusion.

8. It appears that plaintiff No. 2 is not a pardanasin woman because she appeared before the learned Subordinate Judge and gave evidence. She also signed the document Of lease on her behalf and also on behalf of her son and was not an illiterate woman. So the aforesaid cases of Chinta Dasya v. Bhalku Das (AIR 1930 Cal 591) (supra), Sm. Sonia parshini v. Sheikh Moula Baksha : AIR1955Cal17 (supra), A. E. G. Carapiet v. A. Y. Derderian : AIR1961Cal359 (supra) and Mohini Mohan v. Southern Bank Ltd. (1954-84 Cal LJ 39) (supra) have no application to the facts of this case. The reason is simple because the plaintiff is not a pardanasin or illiterate woman. This discussion is sufficient for the disposal of the appeal because there is no appropriate prayer hi the plaint in this respect.

9. Then about the Dacca properties, it has been pointed out on behalf of the appellant that Haralal executed a mortgage for Rs. 1000 regarding one of the Dacca properties and defendant No. 1 satisfied the dues of the mortgage. According to the provisions of S- 17(1)(c) of the Indian Registration Act, registration is necessary to extinguish a mortgage for Rs. 1000. But there is an exception, which has been engrafted in Clause (xi) of Sub-section (2). The endorsement, Ext. A,' has been proved in this case to show that the dues of the mortgage were paid. This is admissible in evidence and no registration thereof is necessary in view of Clause (xi)' of Section 17 of the Indian Registration Act and Clause (c) of Sub-section (1) thereof does not apply as the mortgage dues were not extinguished by that endorsement, Ext. A, Moreover, the statement coming from the defendant No. 1 was that the mortgage dues payable by Haralal would be satisfied by defendant No, 1.

10. Then about the next stage of the case. The contract for exchange was arrived at in 1950, but document of lease was executed on 26th November, 1956, vide Ext. 2. Hence title will accrue only on the execution of the document of lease, though in fact they were documents of exchange within the meaning of provision of Section 118 of the Transfer of Property Act A permanent lease was executed and it appears from the document of lease that the plaintiffs had 1/3rd share and Mahabir was the owner of the remaining 2/3rds share of the property.

11. It Is now to be seen whether such admission made by the plaintiff No. 2 has any probative value in the eye of law. Law is that an admission is a substantive piece of evidence. This was stated by the Supreme Court in the case of Bharat Singh v. Mst. Bhagirathi reported in : [1966]1SCR606 . It has been stated in that case that an admission is substantive evidence even though the parties are not confronted with such statement, but what weight should be attached to it is a different matter. Of course there in a dissenting note in the judgment of Sita-ram v. Ram Chandra reported in : [1977]2SCR671 . That case la distinguishable because in that case a certified copy of a statement of the witness was sought to be used as his admission. In that view of the matter it has been stated in that case that an admission cannot be admitted in evidence unless the previous statements made be first put to him and liberty is given to him to explain the same. It may be pointed out that in that case of Sita-ram, the Supreme Court decisions reported in : [1977]1SCR967 and in : [1974]2SCR124 were not considered. It has been clearly stated in those cases that when there is an admission, it is not necessary to confront the person concerned with his previous statement. This admission has not been proved to be erroneous. In that view of the matter it must be held that the document of lease, Ext, 2, is a genuine document.

12. The last point is what are the shares of the parties regarding the disputed premises. It has been contended on behalf of the respondent that Milan Bala's father-in-law, Gopal Chandra, made provision for her residence in Dacca town by making gift of two rooms to her. This arrangement was upheld by the parties by giving her two rooms, one by the plaintiffs and another by defendant No. 1. The provision is that after her death these rooms would be returned to the donors respectively.

13. This is common ground that there are 10 rooms in the house. Defendant No-1 acquired six rooms and plaintiffs three rooms and there was another small room. So there is no difficulty in this respect.

14. P.W. 1 Subhasmi Saha, plaintiff No- 2, has stated in her evidence that she was present when their deed of lease was executed. P.W. 3, Santosh, has stated that he was present when the documents were executed. The lawyer Rama Ranjan Chakraborty drafted both the documents. He knows that Rs. 5000 was paid in excess by Mahabir for which he got more share. At once a question was put to him why he did not raise any objection. He stated in evidence that that was their family matter and he did not object to the excess share of Mahabir.

15. P.W. 2, Milan Bala, defendant No. 2, stated that Rs. 5000 was paid. The defence is that both the deeds were read over and explained by the lawyer Ranjan Chakraborty. This version has been corroborated by D.W. 2, Biswanath Paul, who says that the parties signed in the documents in their presence.

16. P.W. 1, Suhasini, has stated in her cross-examination that after the execution of the Deed of Lease, Mahabir had been paying 2/3rds share and plaintiffs 1/3rd share towards cess and taxes. They did not raise any objection to the same for the last 10 years. This conclusively shows that the version given by the defendant No. 1 is true and the terms of Ext, 2, Deed of Lease, were accepted by the plaintiffs and they were acted upon. So the question of fraud is ruled out. Had there been any fraud, plaintiff No. 2 would not have accepted possession of only the four rooms and paid Municipal taxes to the extent of 1/3rd share. The defendant No. 2 has stated that plaintiffs had l/3rd share. Hence the submissions made on behalf of the respondents cannot be accepted. The decree must, therefore, be modified.

17. The appeal is allowed. It is hereby declared that the plaintiffs and the defendant No, 1 have 1/3rd share and 2/3rds share respectively in the disputed property subject to the right of residence of defendant No. 2 with respect to two rooms allotted to her, as well as her right to get Rs. 6 per mensem for her maintenance out of the income of the property for her life. The judgment and decree appealed against be modified accordingly.

18. There will be no order as to costs.

Banerjee, J.

19. I agree.


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