NIHARENDU MITRA Vs. SWAGATA MITRA

JUDGEMENT

(1.) The present appeal arises from a suit filed by the plaintiffs/respondents for declaration of their share in respect of the suit property, for partition and for declaration that a registered Deed of Family Settlement dated December 9, 1992 is fraudulent, manufactured, ineffective and not binding on the plaintiffs/respondents. In the said suit, the learned Trial Judge passed a preliminary decree of partition on the premise that the said deed did not confer any title on the defendant nos.1 and 2, namely Sri Niharendu Mitra and Smt. Ranju Mitra.

(2.) Learned senior counsel for the appellant/defendant no.1 argues that the learned Trial Judge failed to take into consideration that the deedin-question, even if not construed as a deed of gift, at least operates as a Will, conferring rights on the defendant no.1/appellant posthumously on the demise of Sri Monoranjan Mitra, the original owner of the property. Since Probate or Letters of Administration of the said Will can be obtained, which would directly affect the outcome of the partition suit, the Trial Court ought to have stayed its hands awaiting such Probate/Letters of Administration before passing a preliminary decree. Learned senior counsel, in his usual fairness, contends that although it was argued all along in the court below on behalf of the defendant no.1/appellant that the deed is a gift deed, transferring title in favour of the defendant nos. 1 and 2 in praesenti, on a proper construction of the same it transpires to have the characteristics of a Will, which was overlooked by the learned Trial Judge.

(3.) As such, it is contended that the impugned preliminary decree be set aside and the proceedings of the partition suit be stayed in order to enable the beneficiaries of the Will to obtain Letters of Administration thereof.