SANJUKTA RAY Vs. BIMELENDU MOHANTY

JUDGEMENT

(1.) He who says what is mine is yours and what is yous is yours is a saint. He says, what is your is mine and what is mine is mine is a wicked man", says Babylanian Telmud (Aboth V). The principal characters involved in this unfortunate family dispute are brother and sister, giving a lie to the saying blood in thicker than water. Bone of controversy revolves round a building standing on AC 0.64 decimals of land claimed to have been gifted by Sita Devi, mother of Bimelendu (plaintiff No. 1), Sanjukta and Sakuntala (defendant Nos. 1 and 2) and mother-in-law of Niharika (plaintiff No. 2) who are respondent No. 1, appellant, respondent No. 3 and respondent No. 2 respectively in this appeal.

(2.) A brief reference to the factual position would suffice. Suit property described in Schedule B of the plaint originally belonged to one Ganesh Chandra who executed a registered permanent lease deed dated 11-4-1944 in favour of aforesaid Sita Devi in respect of the same, along with other properties forming a compact book measuring Ac.O.238 decimals. At the time of execution of the said lease deed, no building was standing on any part of the property. On 24l2-1962 she executed a gift deed in favour of her elder daughter Sanjukta (defendant No. 1). By that time she had constructed a building in 1959-60 in the leasehold property in her possession by availing loan. On 20-11l978 Sita Devi executed a registered gift deed in favour of her younger daughter Sakuntala (pro forma defendant No. 2) in respect of AC. O.081 decimals. In the said registered deed of gift, the donor declared that she obtained the property by the aforesaid registered deed of lease and on payment of the premium and by paying rent to the ex-landlord and to the Government after vesting of the property in question and that she exercised ownership over the property. It was further indicated therein that to meet her legal necessity, she had sold Ac.O.090 decimals from the leasehold property and remaining land measuring Ac.O.148 decimals stood recorded in her name and she was paying rent. She constructed a two storied building on the southern side of the plot of land. Another single storied building stood on the northern side. By the gift deed in question, Sita Devi gifted the double storied building in favour of pro forma defendant No. 2. Plaintiffs filed the suit for a declaration that defendant No.1 is not the exclusive owner of the suit property and the same is the joint property of the plaintiffs and defendant Nos. 1 and 2, and for a further declaration that the order dated 17-6-1992 passed by the Commissioner of Settlement is illegal, without jurisdiction and not binding on the plaintiffs and for issuance of direction to the Collector for necessary correction of the settlement record of rights. Their case in a nutshell is that gift deed on which defendant No. l's case is founded was not acted upon, and in any event did not relate to the suit property. Without properly appreciating the factual and legal aspects, settlement authorities directed recording the properties in defendant No. 1's name. In any event, recording was done on the basis of misrepresentation, and neither conferred any title on defendant No. 1 nor destroyed it so far as plaintiffs are concerned.

(3.) Only defendant No. 1 contested the suit and filed written statement. Her stand as reflected in the written statement was to the effect that recital in the registered gift deed dated 19-11-1978 in favour of defendant No. 2 to the effect that she had kept the building in question for her own residence is a collusive act and is of no avail to the plaintiffs. Because late Sita Devi was not conversant with English language in which the document was ascribed, such a recital in the document being contrary and not in conformity with the gift deed in favour of defendant No. 1 dated 1412-1962 (Ext. E), there is nothing to effect title of defendant No. 1 as the same has already been conveyed in her favour. When the record of rights was published in 1991, she was taken by surprise to find that the properties gifted to her have been recorded jointly in her name and in the name of the plaintiffs. She filed R. P. No. 830 of 1991 before the Commissioner of Land Records and Settlement which has been decided against the plaintiffs on contest. As such, she has stressed that the finding of the Commissioner is binding on the plaintiffs, and proforma defendant No. 2. During her stay at Bhubaneswar she had entrusted plaintiff No. 1 to look after the suit house at Cuttack. Unfortunately, with a view to grab the property, plaintiff No. 1 gave her impression that he was taking steps for mutation of the house in her name. Being her own brother, she had implicit faith and trust and never suspected/ motives of her brother. She was paying money to plaintiff No. 1 for maintenance of house, and payment of taxes etc. When the execution of registered gift deed (Ext. E) by the previous admitted owner in her favour is not challenged, exclusive title of the suit property had passed to her. It has been rightly held by the Commissioner in the settlement case that it has to be recorded in her favour. Possession of the property had been delivered to her and she was the exclusive owner. The gift deed had been acted upon as she had accepted the gift, and had exclusive control over the property.