AJY MONDAL Vs. BISWANATH MONDAL

JUDGEMENT

(1.) This appeal is preferred by Ajoy Mondal and Pradip Mondal (original defendants nos. 1 and 3) against the Judgment and preliminary decree dated May 31, 2019 (the "Impugned Judgment") passed by the Learned Civil Judge (Senior Division) at Barasat in Title Suit No. 1394 of 2015. The impugned judgment partly decreed the title suit filed by the respondents (original Plaintiffs), declaring their 4/5th share in the suit property and holding a gift deed executed by appellant no. 1 in favour of appellant no. 2 valid only to the extent of a 1/5th share, along with granting a preliminary decree for partition.

(2.) The respondents/plaintiffs instituted aforesaid title suit for declaration of their legal heirship and joint ownership in respect of the suit property of their father Baroda Mandal alias Baroda Prasad Mandal, who died on June 28, 1976. They asserted that Baroda Mandal had two wives: Pushpa Bala Mondal (mother of appellant no. 1, Ajoy Mondal, and defendant no. 2) and Padma Bala Mondal (mother of respondent nos. 2 to 5). Upon Baroda Mandal's death, the respondents/ plaintiffs requested to the appellants/defendants for an amicable partition, but same was refused by them as they were claiming themselves as sole legal heirs of the deceased Baroda Mondal.

(3.) The dispute arose when the appellants commenced construction on the unpartitioned suit property in October 2015, as appellant no. 1 claimed sole ownership thereupon. On said assumption, he transferred the entire suit land, exclusively to appellant no. 2 (his son) by way of a gift deed executed on July 15, 2014 (Exhibit 2). The respondents/plaintiffs contested the validity of the gift deed on the ground that appellant no. 1 was not the sole owner of the property, so he could not transfer share of others in the joint property in favour of his son. At best he could transfer his share. Therefore, they challenged the said gift deed in the title suit, wherein they sought for a declaration that the gift deed was void. They also prayed for declaration of their share in the suit property in the form of preliminary decree, and an injunction against the appellant to restrict them from further construction on the suit property.