RENUPADA JALANI Vs. SRI NIRAPADA DAYASI

JUDGEMENT

(1.) One Sri Nirapada Dayasi instituted a suit before the appropriate Court of first instance as against one Sri Renupada Jalani & Ors. for partition, demarcation and final decree to that extent and injunction etc. Prayer for injunction is made to restrain the defendants from interfering with the possession of the plaintiff during the pendency of the suit and/or in future alongwith restraining them from catching fishes from the respective Pond/Tank and from making any construction in respect of the broken places of land etc. In the prayer for partition, the claim is in respect of 20 1/4th decimal of land within the demarcated portion. The schedule of the land speaks about survey in respect of Khatian No. 1696 and Plot No. 7095 which is recorded as 'Bastu' presently and 'Pukur' measuring .47 decimal. Therefore, the schedule of land speaks about the house-hold land and Tank.

(2.) In the plaint, particularly in paragraph 2 therein it has been specified that the land actually belongs to two brothers i.e. Renugupta and Nirapada. Both were in possession of equal portion of land measuring .23 1/2 decimal of land each out of .47 decimal. Renupada sold the entire share of .23 1/2 decimal of land to the plaintiff on 29th Jan., 1960 by a Registered Deed of Conveyance. On perusal of Deed of Conveyance dated 29th Jan., 1960, it is crystal clear that such share was sold to the plaintiff exclusively without imposition of any condition for constructing house elsewhere upon getting consideration money on execution of such conveyance. The defendant No. 5 being one of the appellants and son of the appellant No. I herein filed a written statement taking various grounds including the ground that since the schedule land is undivided family dwelling house and since the plaintiff is a stranger to the family, he is not entitled to get possession of the land in question. If it is demarcated then the defendants are entitled to the portion of the land in favour of the plaintiff by way of pre-emption. Against this background the following issues were framed :

(3.) In any event, the Court of first instance held that the onus in this case heavily lay upon the defendants to prove their case that the disputed transactions were a-mere paper transaction in order to secure loan and the plaintiff never got possession over the suit land inspite of his deed. It is settled principle of law that in case of sale of any immovable property by any Registered Deed, the consideration of sale will pass on to the seller as soon as the deed is executed and there is no provision of any sale on condition for re-purchase. If there is any such agreement at the time of any transaction that the seller would re-purchase the property from the buyer after fulfilment of specific term then such transaction according to the Transfer of Property Act is deemed to be a mortgage by conditional sale and it has also been provided that no such transaction shall be deemed to be a mortgage unless the condition of repayment is embodied in the document. But on perusal of the deed executed by Nirapada Dayasi and Renupada Jalani it appeared that no condition of re-purchase in the body of the deed is embodied. The defendants further argued that the plaintiff subsequently executed a Deed of reconveyance in favour of the defendant Nos. 2 to 5 for about .15 decimals of land but after perusing the said document, the Court of first instance did not find anything in this regard. So the document cannot support the case of the defendants. It is also available from the judgment of the Court of first instance that immediately after 9 days of such conveyance, Nirapada absolutely sold his remaining share to one Bhim Jalani whereunder the prior transfer to the plaintiff was shown as out-right sale. It further appeared from the deposition of the wife of Nirapada (D.W.2) and D.W.3 that they want to stay at Calcutta with their son and daughter which indicates that her husband sold her entire property to stay at Calcutta for his livelihood. Ultimately Court of first instance felt that the plaintiff is entitled for a preliminary decree for partition.