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Bhudeb Chatterjee and ors. Vs. Asutosh Gangopadhya and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Reported inAIR1928Cal705
AppellantBhudeb Chatterjee and ors.
RespondentAsutosh Gangopadhya and ors.
Excerpt:
- .....speaks of half-share, i find that dinesh and kirti have 8-annas title to the disputed property.4. whatever may be the origin of the title, on the face of the hissanama that title had a legal origin, and that in our opinion was sufficient to entitle the plaintiffs to an allotment in respect of an 8-annas share in the properties.5. for these reasons we are opinion that the appeal should fail. we accordingly dismiss it with costs.
Judgment:

1. The suit which has given rise to this appeal was for partition. The Courts below have concurrently decreed the suit. Some of the defendants have then preferred this appeal. Shortly put, the plaintiffs are the descendants of one Mathura who happened to be one of 'the sons of Mangala Devi, daughter of one Lafchi Kanta Tapadar, the original owner. The defendants are the descendants of Ram Bishnu, another son of Mangala. The plaintiffs claimed an 8 annas share of the properties which had originally belonged to Likhi Kanta and had descended to them through Mathura from Mangala. The Courts below held that Mathura predeceased Mangala and that therefore the plaintiffs failed to prove the title which they had set up in the plaint. The said Courts, however, proceeded on the basis of a hissanana which was a document dated 1269 B.S. and which purported to record the fact that the predecessors of the plaintiffs, namely the three sons of Mathura, had an 8-annas share in the property. Two arguments have been advanced before us on behalf of the appellants. It has been argued in the first place that the document was inadmissible in evidence inasmuch as it was not stamped and registered as it should have been. This argument in our opinion is not sound, because the document is neither a deed of partition nor a deed of gift, being merely a memorandum in which Ram Bishnu purported to acknowledge the fact that he was taking away an 8 annas share of the property, the remaining share belonging to Umesh and others. It was, therefore, a document which did not require to be stamped, nor need it have been registered. It was merely a record of the family arrangement, which, as has been found by the Courts below, was also given effect to subsequently on the death of Mangala. Then it is said that the document was executed at a time when Mangala was alive; and for that reason it has been urged that Ram Bishnu could not have entered into any arrangement with regard to the property as he had merely a chance of succession at that point of time. As regards that matter it may be said that there was no difficulty on the part of Ram Bishnu in acknowledging the fact that he himself had so much share in the property. Regarded as a document reciting the facts as they stood at the time, the document is entirely unobjectionable. The findings of the Subordinate Judge are that after the death of Mangala the arrangement recorded in this hissanama was also given effect to and that since then for a period of 60 years or more the plaintiffs had been enjoying the usufruct of the land getting a share of the paddy and being in possession of the homestead.

2. The next contention that has been urged is that in as much as the plaintiffs had failed to prove their case because it was found that Mathura had predeceased Mangala, the Courts below were in error in giving to them a decree on the footing of a new and inconsistent case It is true that the specific case of title as to the property having descended to them from Mangala through Mathura failed. But still what was relied upon by the Courts below was that inasmuch as the plaintiffs and their predecessors had been in possession for a very long period, at least since 1269 B.S., the hissanama having spoken of the half-share belonging to them, that possession was referable to a legal origin; and the learned Munsif distinctly held:

On the basis of the hissanama which speaks of half-share, I find that Dinesh and Kirti have 8-annas title to the disputed property.

4. Whatever may be the origin of the title, on the face of the hissanama that title had a legal origin, and that in our opinion was sufficient to entitle the plaintiffs to an allotment in respect of an 8-annas share in the properties.

5. For these reasons we are opinion that the appeal should fail. We accordingly dismiss it with costs.


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