SUKUMAR BHOWMIK Vs. SUBAL BHOWMIK

JUDGEMENT

(1.) AGAINST the concurrent findings of fact returned by the Addl. District Judge, West Tripura, Agartala, Court No. 3 in Title Appeal No. 42 of 2006 this appeal, under Section 100 of the CPC, questions the legality of the judgment and decree dated 23.05.2007. While admitting the appeal, by the order dated 07.09.2007 the following substantial questions of law were formulated for consideration.

(2.) THE fact relevant for appreciation may briefly be laid at the outset.

(3.) THE plaintiff has adduced both oral and documentary evidence. Manmohan Bhowmik, Gouranga Bhowmik, Dulal Bhowmik were his witnesses. He examined himself as PW -1 and admitted in the evidence certified copy of the judgment of TS No. 98 of 1980 (Exbt. 1), certified true copy of an order passed in Misc. Case No. 08 of 2001 (Exbt. 2), certified true copy of order dated 05.08.2004 passed in TS No. 83 of 2004 (Exbt. 3), certified true copy of order dated 24.08.2004 passed in TS No. 83 of 2004 (Exbt. 4), Original registered gift deed No. 1 -4120 (Exbt. 5), certified true copy of Khatian No. 1391 (Exbt. 6) and two unstamped deeds of partition of family settlement dated 4th Chaitra, 1377 B.S. (Exbt. 7 & 8). The defendant No. 2 has examined himself but no documentary evidence has been adduced for the defendants. The trial court after analysing the evidence held that Exbt. 7 and 8 evidenced the family settlement for purpose of partition of the joint stick property, between the three sons of Kailash Kapali and the widow of his pre -deceased son, Murari and the partition of the land in common has been effected by delivery of possession of the respective Chhaham to each of the co -sharers. The contents can well be appreciated for the purpose of determining the right of the parties. It has been further held that the defendants cannot take a contrary position to what has been stated in Exbt. 7 and 8. Moreover, it has been observed that Exbt. 7 and 8 were also challenged in Title Suit No. 98 of 1980, instituted by Gopal Chandra Bhowmik, son of Hemantabala, and Sachindra against Tarani, Tarini, Subal Bhowmik and Sagari Kapali. While deciding the said title suit it was held that both the gift deeds are genuine and valid. It has been observed that even though the said decision passed in Title Suit No. 98 of 1980 cannot operate as the res judicata against the defendants as they are not parties in that suit but that judgment is a good piece of evidence on the point in issue. Regarding the absence of signature or thumb impression of Baikuntha Kapali in Exbt. 7, it is observed that on comparison of Exbt. 7 and 8 it revealed that the beneficiary did not put his signature in the memoranda. Consequently, Baikuntha being the beneficiary of Exbt. 7, his signature or thumb impression was not there. Similarly, Ananga being the beneficiary of Exbt. 8, his signature was also not obtained in Exbt. 8. Exbts. 7 and 8 being the original documents, more than 30(thirty) years old had been admitted in the evidence on consideration of their antiquity. The purpose of creating the Exbt. 7 and 8 has been placed by the testimonies of the PWs 2, 3 and 4. PW -1 is one of the sons of Baikuntha Kapali and he has clearly deposed about the family settlement. Furthermore, DW -1 in his cross -examination has denied his knowledge about the amicable partition of the properties of Kailash Kapali. Similarly, in his deposition regarding the gift deed executed by Sagari in favour of the plaintiff has also not been denied. That apart, the age of ink in the signature of the plaintiff in the six pages of Exbt. 8 appeared to be similar to other hand writing and did not appear to be a recent one as argued by the learned counsel of the defendants. Exbt. 7 and 8 clearly recite that after the amicable family partition, delivery of possession of the share of each beneficiary was given. PWs 1 to 4 deposed in this regard. Issue No. (ii) has thus been decided in the affirmative. As stated, the chhaham No. 4 fell in the share of Sagari. According to the defendants, Sagari could not have any share to the agricultural land of Kailash Kapali. But such agricultural land is attracted by the gift deeds in question. Sagari had no competence to make the gift. It has been also contended that the judgment of TS No. 98 of 1980 marked Exbt. 1 is not binding upon the defendants as they are not party in that suit. It is undisputed that if the properties of Kailash Kapali was to be partitioned among his heirs taking recourse to the provisions of law and it should have been done as per the provisions of Daya Bhaga School of Hindu Law. But if the property was decided to be partitioned among the beneficiaries through amicable family settlement and if it was decided to give some properties to the widow of deceased brother, the law obviously cannot stand on the way of such partition. In a different way, the trial court has observed that if any of the surviving sons of Kailash Kapali disputed the partition, it ought to have been done on strict construct of inheritance law. But when it is done amicably, obviously, any portion of the property can be given to any beneficiary. This is how the partition was effected. This amicable partition effected by the heirs of Kailash Kapali has been questioned by the defendants. There cannot be any doubt that the judgment, Exbt. 1, does not operate as res judicata so far as the defendants of the suit are concerned but it cannot be disputed that in the said suit, the validity of the gift deeds was put to close scrutiny. Having undertaken the legal test, the court came to the decision that the gift deeds are valid. Though that decision does not operate as res judicata in this case but the said judgment is a good piece of evidence on the matter in issue, as contended by the plaintiff. The family settlement in respect of the property of Kailash Kapali was held to be valid. The gift deeds made by Sagari are related to a portion of the land that came to her in the family settlement. It has been further held that as per the recitals of the gift deeds and the oral evidence on record, the plaintiff got possession of the land in question. It has been also proved that there had been some attempts by the defendants to dispossess the plaintiff from his jote land belonging to 'C' schedule land. All other issues except issue Nos. 8 and 9 have been decided in favour of the plaintiff. The prayer of the plaintiff for declaring his 1/6th share of the land left by his father described in schedule 'C -1' by a preliminary decree has been refused by the trial court. While deciding the issue No. 9, the said issue has been discarded. As a result, the outcome of the suit can be gathered from the excerpts below: