1. This appeal is by the defendant No. 3 and it arises out of a suit for partition, for permanent injunction and for possession on declaration of plaintiff's title to certain structure standing on the suit land. The plaintiff's case is as follows:
2. The suit land described in Sch. Ka to the plaint being premises No. 47/2, Beliaghata Main Road, Calcutta, measuring 3 cottah 5 chhataks belonged to plaintiff's parents. Out of the said land plaintiff's mother received 3 cottahs of land by way of gift from her father. The remaining 5 chhataks of land was owned by the plaintiff's father. The plaintiff's father constructed a house with bricks and bamboos having a corrugated iron sheet roof on the western side of the aforesaid 3 cottahs of land. The plaintiff's parents along with the plaintiff and the defendants who are the plaintiff's brothers and sister used to live in the said structure. The plaintiff's father Benimadhab Das and the plaintiff's mother Panchubala died in the year 1950 within a very short interval. The pucca house described in Sch. Kha to the plaint was constructedby the plaintiff out of his own funds. The ground floor of the said house was constructed by the plaintiff between the years 1947 and 1949 and the first floor was constructed in 1956. The plaintiff is a railway employee. Before 1955 he was posted in Assam. In 1955 he was posted in Calcutta and his brothers except the defendant No. 3 Kashinath was in separate mess from him. The plaintiff had another brother Satyacharan who died childness and intestate in 1968. The 1/6th share of Satyacharan devolved on the plaintiff and the defendants and also another brother Ananta in respect of the property described in Sch. Ka to the plaint. Ananta sold his share to the plaintiff by a registered Deed dated Nov. 4, 1968. It was alleged that the defendant No. 3 Kashinath who was living with the plaintiff was given in marriage by the plaintiff in 1967. From Jan., 1968, the defendant No. 3 became separate in mess from the plaintiff and thereafter he began to ill-treat the plaintiff. It was alleged that the defendant No. 3 had been given licence by the plaintiff to reside in a portion of the pucca house but the defendant No. 3 with the help of the other defendants tried to dispossess the plaintiff from the entire house. As it had become difficult to live together the plaintiff started the present suit for partition of plaintiff's 7/18th share in the Ka Sch. property and for a declaration that the pucca two-storied house described in Sch. Kha to the plaint belongs to the plaintiff exclusively and for eviction of the defendant No. 3 therefrom. The plaintiff also prayed for an injunction restraining the defendant No. 3 from disturbing the plaintiff's possession in the Kha Schedule property. The suit was contested by all the defendants.
3. The defence case is that in terms of a Deed of agreement of family arrangement executed by the parties in 1955, any party intending to sell his share is to give notice to the other co-sharers, and Ananta having sold his share to the plaintiff without such notice the transfer was void and illegal. It was alleged that the first floor of the pucca house described in Sch. Kha to the plaint was constructed during the lifetime of their parents between the years 1946 and 1949 out of the money and materials belonging to their parents. Those constructions included 2 pucca rooms, with a staircase, verandah, bath and privy and the plaintiff and the defendant No. 3 also made over some money to their parents towards the costs of construction of the said structure. It was alleged that the statements contained in the Deed of Settlement of 1955 regarding the funds out of which the construction was made wag not true. The defendants further case is that above the existing ground floor the defendant No. 3 constructed a room on the first floor with a verandah, staircase with C. I. Roof and also a garage on the back of the privy out of his own funds. It was further alleged that the plaintiff with his personal fund made construction of the mezzanine floor and another room on the bath and privy in 1963-64. It was denied that the defendant No. 3 was living in the house described in Sch. Kha as a licencee of the plaintiff.
4. The trial Court accepted the plaintiff's case in part namely, that out of the construction described in Sch. Kha to the plaint one room was made on the first floor and a garage was constructed by the defendant No. 3 with his own money and the same did not belong to the plaintiff. The trial Court found that the plaintiff by his purchase had acquired the share of the other brother Ananta and he had inherited 1/36th share of the other brother Satya Charan who died without any issue. The trial Court accordingly found that the plaintiff was entitled to 7/18th share in the property described in Sch. Ka to the plaint. The prayer for injunction was refused on the ground that the defendant No. 3 having been found to be a joint owner of the pucca house described in Sch. Kha to the plaint with the plaintiff, no injunction could be granted against the defendant No. 3. The trial Court, therefore, decreed the suit for partition. Against the said decision the defendant No. 3 alone has filed the appeal.
5. Mr. Chatterjee, learned Advocate for the appellant contended in the first place that the properties were not liable to be partitioned in view of the agreement, Ext. 1 dated 8th Aug., 1955. That agreement was executed by the plaintiff, the defendants Nos. 1 to 3 and the other two brothers, Satyacharan and Anantalal. By that agreement the parties agreed that they shall not be entitled to make any partition by metes and bounds of their respective shares in respect of the properties of Sch. Ka tothe plaint. The reason given is that the property was very small and if it had to be divided into 6 shares very little would come to the share of each brother and the brothers would thus be left practically without any property. It was stated that there was love and affection between the brothers and they wanted to live jointly maintaining the good relationship between them in future. Mr. Chatterjee contended that this agreement or family settlement is binding between the parties and the plaintiff is not entitled to ask for partition of his share. He contended that the agreement not to claim partition was binding between the parties to the document although such agreement would not be binding upon the heirs of the parties to the agreement. In support of this contention he relied upon a decision in Radhanath Mukherjee v. Tarrucknath Mukherjee, (1899) 3 Cal WN 126. In that decision it was held that such an agreement would be binding for a limited period though not for all times to come provided the agreement was for consideration. Reliance was also placed in the decision in Krishnendra Nath Sarkar v. Debendra Nath Sarkar, (1908) 12 Cal WN 793. In that case also it was held that an agreement not to partition the property will be binding upon the parties to the documents if it is for consideration. Reliance was also placed upon the decision in Rajender Dutt v. Sham Chunder Mitter, (1880) ILR 6 Cal 106 which has also taken a similar view. On the basis of these decisions it was argued by Mr. Chatterjee that the present suit for partition was not maintainable in view of the provisions of the agreement, Exhibit 1. It is to be noticed however that in the present suit the plaintiff claimed not merely of his 1/6th share which he inherited from his father but also of the 7/36th share purchased by him from his brother Ananta as well as 1/36th share inherited by the plaintiff from his other brother Satyacharan. The plaintiff therefore claimed as a successor in interest of his brothers as well. The agreement even assuming it to be binding upon the plaintiff, could not be binding upon him in respect of shares which he was claiming as a successor in interest of two of the executants to the Deed of Agreement. Moreover, the said agreement was without any consideration. Nothing appears in Ext. 1 which can be said to form the consideration for theagreement. There was no dispute between the parties which was settled by the Deed of family arrangement. It was merely a wish expressed by the brothers to live together and not to claim partition.
6. The next branch of this argument of Mr. Chatterjee has been that the Clause (v) of the agreement provides that notice has to be given before any of the brothers sells his share to another. It was contended that such notice must be in writing because the language used there is 'he will have to serve notice on the other parties'. The relevant portion of Clause (v) of the agreement is as follows:--
'If any party under pressure of circumstances be forced to sell or transfer his own share, in that case he shall remain bound to sell the same to any one among the parties from No. 1 to No. 6. But if they are not willing to pay proper price according to market rate, in that case, he shall be competent to sell elsewhere. But prior to sale he will have to serve notice on the other parties'.
In our view the provision for service of notice is applicable only if the sale is intended to be made to a stranger. It cannot have any application if a sale is intended to be made to any of the brothers. In the present case, therefore, there was no necessity for giving any notice by Ananta to the other brothers, before he sold his share to the plaintiff. Even assuming that notice was necessary it cannot be said that the sale is altogether void for want of prior service of notice to the other brothers. At the most it can be said that such a sale is voidable at the instance of the parties on whom the notice was not served. But the transaction not having been avoided for more than two decades, it cannot now be questioned by the defendant in this suit.
7. The next contention advanced by Mr. Chatterjee is that the suit is barred under Section 34 of the Specific Relief Act. 1963. It was contended that the plaintiff ought to have prayed for a decree setting aside Ext. 1 and unless that was done the suit as framed is not maintainable. We are unable to accept this contention of Mr. Chatterjee as we have already found that Ext. 1 was without any consideration. The said agreementis not enforceable in law, the plaintiff was therefore not required to pray for setting aside the agreement. If a document is not legally effective it is not necessary to make any prayer in respect of the same. In our view the suit is perfectly maintainable without there being any such prayer.
8. On the question of title to the Kha Sch. structure Mr. Chatterjee addressed us on the basis of the evidence adduced in the case and invited us to hold that the said structure was constructed by the parents of the plaintiff. He contended that the plaintiff and the defendant No. 3 also contributed some money to enable the parents to make the construction. It was accordingly submitted that all the brothers were joint owners of the said structure described in Sch. Kha to the plaint and the plaintiff could not claim exclusive title thereto. With regard to the means of Benimadhab, the father of the parties the evidence of P. W. 2 Priyanath is that Benimadhab used to work in the Motor Vehicle Department of the Corporation of Calcutta and he used to get daily wages at Rs. 2-4 as. The evidence of P. W. 3 the plaintiff and also of his brother Ananta P. W. 4 is that their father had no means to construct a pucca house. On behalf of the defendants, D. Ws. 1, 2, 3 and 4 wanted to prove that their father had sufficient means. Their statements were sought to be corroborated by D. W. 5 who is a local resident who stated that the ground floor which consists of 2 rooms verandah, privy etc. were constructed by Benimadhab Das and thereafter the first floor was also constructed by Benimadhab. The trial Court rightly refused to place any reliance upon the evidence of D. Ws. on this aspect of the case in view of the statements contained in Ext. 1 to the effect that the ground floor was constructed out of the fund of the plaintiff who made the construction to fulfil the desire of his mother to live in a pucca house. Apart from oral evidence there is a letter written by Shib Krishna Das one of the brothers to his elder brother which is Ext. 3. The said letter is dated 10th July, 19-60, which was written long before the date of institution of the present suit. From that letter it is quite clear that Benimadhab had a very meagre income and he could hardly maintain his family and provide his childrenwith the necessities of life. It is difficult to believe how such a person could construct a pucca house. There are other documentary evidence namely Ext. 7A which is the accounts for the construction of the ground floor room, bath, privy, kitchen, Ext. 8 containing labour charges. Ext. 9 (b) to (x) cash memos, Ext. 10A to 10J challans. The trial Court took into consideration all these evidence and came to the conclusion that the ground floor rooms and the mezzanine floor room and one room on the first floor of the pucca house described in Sch. Kha was constructed by the plaintiff and one big room on the eastern side on the first floor was constructed by the defendant No. 3. In view of the materials on record we agree with this conclusion arrived at by the trial Court.
9. The next contention advanced by Mr. Chatterjee is that since the land belonged to the mother of the plaintiff and the defendants the construction even if made by the plaintiff out of his own fund would become the mother's property and on her death it would equally devolve upon all her sons. He contended that under the General Principles of Law, if a person constructs a house on a land with the knowledge that the land belongs to another he cannot claim the house as his own. In support of his contention he relied on the decision in Dharma Das Kundu v. Amulyadhan Kundu, (1906) ILR 33 Cal 1119. In that case the son redeemed the mortgage of a portion of a land belonging to his father. He also made improvements upon the land and made additions and alterations to the ancestral house. The father and the son fell out and eventually the father filed a suit against the son. It was held that the property belonged to the father and when the son knowing that the house belonging to the father was the ancestral house, made additions and alterations, he could not claim the same to be his own. That case is quite distinguishable from the present case on facts. In the present case there was no house or any kind of construction upon the land which belonged to the mother. There was no question of throwing the self acquired property into the common stock to make it form part of joint family property. On the other hand,the mother allowed the son to build the house. The other sons who were awarethat the land belonged to the mother did not raise any objection and acquiesced in the construction of the house by the plaintiff. In these circumstances it cannot be said that the house constructed by the plaintiff in which one of the rooms was constructed by the defendant No. 3 became the property of the mother.
10. For the reasons mentioned above, this appeal fails and it is accordingly dismissed without costs.
11. I agree.