TARAKNATH Vs. SUSHIL CHANDRA DEY

JUDGEMENT

(1.) Leave granted.

(2.) We have heard learned counsel on both sides. This appeal by special leave arises from the judgment and order dated 24/7/1995 made in LPA No. 10 of 1993 of the High court of Guwahati. The admitted facts are that the property originally belonged to one Syed Md. Mahibullah. After his demise, the property passed on to his widow, five daughters and five sons. His widow died in 1971. Subsequently, it would appear that the sisters have relinquished their rights in the properties in favour of their five brothers. It is the case of the appellant that at a family settlement among the brothers, on 6/12/1977, the suit property was allotted to Syed Baitul Alam who had sold the said property under registered sale deed to the appellant on 6/8/1979. He laid the suit for declaration of his title and for ejectment of the respondent. The trial court decreed the suit. On first appeal, the learned Single Judge confirmed the decree. The division bench in the above LPA reversed the decree and dismissed the suit. The division bench came to the conclusion that relinquishment of the property would operate as a gift by the sisters and delivery of possession is a precondition. Since possession was not delivered to the brothers, the gift by the sisters is not valid in law. As regards the family settlement between the brothers, the division bench has held that since there is no dispute pending or prospective between the brothers, the family settlement is not valid in law and, therefore, the appellants cannot derive any title from one of the brothers to whom the property had fallen to his share through the said settlement. Consequently, the sale to the appellants on 6/8/1979 is also not valid. On that premise, the suit came to be dismissed.

(3.) It is contended by Mr P. K. Goswami, the learned Senior Counsel appearing for the respondents, that from the evidence it is clear even assuming that the dispute between the brothers has not been properly existing, since one of the brothers who is admittedly staying in London did not participate in settling the dispute and even in the plaint his address was of Guwahati while he was staying in London, it is not a bona fide settlement. It is also contended that the sisters having not delivered possession of the property to the brothers under the personal law, the gift is not complete. Therefore, the appellant cannot gel any valid title. Since the respondent had not acknowledged the title of the appellants, there is no estoppel under Section 116 of the Indian Evidence Act. Since the appellant derived no title, it would be open to the respondent to assail the validity of the sale. The High court, therefore, was right in dismissing the suit.