KARAN CHABRIA Vs. YASHWANT CHABRIA

JUDGEMENT

(1.) This memorandum of review is virtually an expression of displeasure of the defendant-appellant over the judgement passed by this Court in FA 410 of 2009, though the petitioner is proclaiming that he wants to bring to the notice of this Court errors that crept in while passing the judgement in FA 410 of 2009, which is apparent on the face on record.

(2.) It is further contended that because of discovery of important evidence, which the petitioner despite due diligence could not bring to the notice of this Court at the time of hearing or before the order on 19/9/2022 was passed, the petitioner is making an innocuous prayer before the Court to revisit the judgement pronounced on 19/9/2022 but the intention of the petitioner appears to be quite different from what has been candidly adverted. Challenging the preliminary decree passed in a suit for partition being Title Suit No. 19 of 2005 by the learned 1st Court of Civil Judge, Senior Division at Alipore, an appeal and cross-appeal are preferred by one Charan Kumar Chabria. Charan Kumar Chabria and Karan Kumar C- habria were the joint owners of the property situated at 34/1 'Y' Ballygunge Circular Road, Kolkata-700019 in question having 50% share each. Karan Kumar Chabria executed the deed of gift in favour of defendant no. 1 and 2 transferring thereby the first floor and second floor of the building to them. Challenging the said transfer, it is contended that defendant no. 3 being a co-owner had no authority to transfer the entire first floor and second floor by executing deed of gift in favour of defendant no. 1 and 2. Therefore, no right title interest could be said to have been transferred to or acquired by the defendant no. 1 and 2 by virtue of the deed of gift. Challenging the legality and propriety of the deed of gift Charan Kumar Chabria filed a suit seeking, inter alia, declaration of title of plaintiff and defendant no. 3 to the extent of 50% of each over the suit property with further declaration that the deed of gift dtd. 23/4/2002 executed by defendant no. 3 is illegal, void and ineffective and not binding upon the plaintiff.

(3.) The defendant no. 1 and 2 in their statement contended, inter alia, that the property was purchased by the father of the parties to the proceeding in the name of plaintiff and defendant no. 3. After the demise of their father an agreement was arrived at by and between the brothers and in terms of the said agreement defendant no. 3 executed the deed of gift and relinquished his right title interest in favour defendant no. 1 and 2. Defendant no. 3, however, in his written statement stated that he executed the deed but he was not allowed to carry his mind while executing the deed. It was prepared by Samiran Chakraborty, Advocate of defendant no. 1 and 2. Had he been told about the purport of the deed, defendant no. 3 would not have executed the said document. From the attending facts of the case it is admitted that the defendant no. 3 was one of the co-owners in respect of the suit property. Though he took the plea in his written statement that he did not carry his mind at the time of execution of the deed of gift and he had no opportunity to go through the said deed of gift prior to execution of the same, but there is nothing to indicate that the donor defendant no. 3 ever challenged the deed of gift before any Court of law or took any step to get the document cancelled. Thus, the preliminary decree passed by learned Trial Court was affirmed keeping in mind that the co-owner has right to transfer his share in respect of undivided property. It is obvious in the preliminary decree declaration is made in respect of share of the respective parties. The question of allotment, of course comes subsequent thereto in the proceeding for drawing up final decree.