R.S.A. No. 1 of 2012. Case: Shri Umesh Agarwal, Shri Mudit Agarwal and Shri Sohil Agarwal Vs Shri Mahesh Agarwal, Shri Mihir Agarwal and Smt. Mridula Agarwal. Sikkim High Court
| Case Number | R.S.A. No. 1 of 2012 |
| Counsel | For Appellant: Bhaskar Raj Pradhan, Sr. Advocate, Tashi R. Barfungpa, Yangchen Doma Gyatso, Yadev Sharma and Karma Tshering Bhutia, Advocates and For Respondents: N. Rai, Sr. Advocates, Najier Ahmed and Sushant Subba, Advocates |
| Judges | Pius C. Kuriakose, C.J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order VII Rule 14; Order XII Rule 6; Section 100; Indian Contract Act, 1872 - Sections 23, 24; Indian Evidence Act, 1872 - Sections 145, 17, 18, 21, 56, 57(6), 58, 77, 80, 90, 93; Limitation Act, 1963 (36 of 1963) - Section 3; Transfer of Property Act, 1882 - Section 123 |
| Judgement Date | August 06, 2013 |
| Court | Sikkim High Court |
Judgment:
Pius C. Kuriakose, C.J.
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Surviving plaintiffs in Title Suit No. 01/2009 on the files of learned Civil Judge, East Sikkim, who were appellants in Title Appeal Case No. 08/2011, have filed this Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, 'CPC') impugning that the decision concurrently taken by the lower Appellate Court and the Trial Court on an application filed under Order XII Rule 6 of CPC by the defendants to non-suit them on the basis that the title suit filed by them was liable to be dismissed straightway on the basis of admission already made by them in a previous litigation. The facts will have to be adverted to briefly. The appellants will hereinafter be referred to as the surviving plaintiffs and the respondents will hereinafter be referred to as the defendants or by their names. The suit was instituted originally as Civil Suit No. 10/1994 by the surviving plaintiffs and also by one Bhaskaranand Agarwal, father of appellant No. 1 and respondent No. 1 in respect of 9 items of immovable properties described in Schedule-A to the plaint and another immovable property described in Schedule-B, which is in fact the first item described in Schedule-A itself. The suit was amended and the following are the reliefs sought for in the amended plaint:
(a) For declaration that the suit properties mentioned in the Schedule 'A' hereunder are joint family properties and/or the coparcenary properties of the Plaintiffs and the Defendants.
(b) For declaration that the deed of gift executed and registered on 31.1.1989 by the Defendant No. 1 in favour of Defendant No. 3 in respect of the properties mentioned in Schedule 'B' hereunder is void and inoperative in law and is not binding upon the Plaintiffs and/or in coparceners of the Hindu undivided family or upon any members of the joint family of the Plaintiffs and the Defendants.
(c) For permanent injunction restraining the Defendants and each one of them from transferring alienating, encumbering, dealing with and/or from disposing of any of the joint properties of the parties mentioned in Schedule 'A' hereunder and also from interfering with the peaceful possession of the Plaintiffs and their family members in all the joint properties as aforesaid including in Schedule 'B' hereunder and also from interfering with running of the joint family business in any manner whatsoever.
(d) For Receiver.
(e) For Costs.
(f) For such other relief or reliefs to which the Plaintiffs are entitled in law and equity.
As per the amendment, three more items of properties are incorporated in Schedule-A, and these three items are not immovable properties as such, but they are three different business concerns.
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The first defendant Mahesh Agarwal as already indicated is the direct brother, being the elder brother of appellant-surviving plaintiff No. 1 Umesh Agarwal. The second defendant is the son of first defendant and the 3rd defendant Smt. Mridula Agarwal is the wife of first defendant and in her favour Annexure-B Gift Deed dated 31.03.1989 is executed by her husband, Mahesh Agarwal, jointly with 'M/s. Shree Mulchand and Sons' a proprietary concern belonging to him.
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The case of the plaintiff is that all the properties including the Schedule-B property, which appears to be the most valuable amongst the immovable properties described in Schedule-A belong to a Hindu Undivided Joint Family in which the members presently are the three appellants and defendant Nos. 1 and 2. According to them, in the above Hindu Undivided Joint Family, no partition has so far taken place in respect of the immovable properties scheduled to the plaint. In this context they claim that all these properties were allotted to a registered partnership firm by name 'M/s. Shree Mulchand and Sons' by the Government of Sikkim by an order of allotment dated 14.09.1944 which is produced in the case as Exhibit P-1. It is, therefore, further case that pursuant to a family arrangement entered into at Calcutta on 06.06.1968 between the then members of the Hindu Undivided Joint Family including late Bhaskaranand Agarwal, 11 items of immovable properties including the immovable properties which are scheduled to the plaint to the branch consisting of Bhaskaranand Agarwal and his two sons namely, the first defendant and the first plaintiff. Exhibit P-2 is copy of the above family arrangement. Thus, though both parties seem to be tracing their title to Exhibits P-1 and P-2, they are at issue as to whether the property continued to be joint property between them while the plaintiffs contend that the immovable properties continued to be their joint property of themselves and defendant No. 1 and 2, the contention of defendants is that pursuant to a process of partition which started in 1973 at the time when Bhaskaranand Agarwal was alive the entirety of their right, title and interest of the original partnership firm by name M/s. Shree Mulchand and Sons, his business and properties at Mangan Bazar, at Dikchu and at Gangtok Bazaar including the properties described in Schedule-B were allotted exclusively and separately to the first defendant and, accordingly, a new firm was registered on 16.06.1979 under the same name Shree Mulchand and Sons under the sole proprietorship of the first defendant. It is contended by them that as the above registration was done after undergoing all formalities and public notice by virtue of the above registration the first defendant became the absolute owner in respect of the business of Shree Mulchand and Sons and the immovable properties described as items No. 1, 4, 5 and 6 in Schedule-A stood vested absolutely in defendant No. 1. It is also contended that the first defendant who thus became the absolute owner of the properties would convey his ownership over item No. 1 in Schedule-A (Schedule-B property) in favour of his wife, the third defendant Mridula by a Gift Deed dated 31.03.1989. It is contended that upon such acquisition of ownership by virtue of Gift Deed the 3rd defendant made an application for mutation of the properties covered by the Gift Deed, the properties now stand mutated in favour of the third defendant. It is also contended that under the above partition which commenced in 1973 properties described in some other items 2, 3 and 7 in Schedule-A were allotted to plaintiff No. 2 and that he is carrying on a separate business.
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Answering the plaintiffs' case that they together with defendant Nos. 1 and 2 continued to be a mitakshara coparcenary, it is contended that the Hindu Undivided Joint Family has no application in Sikkim. Pristine Hindu Law does not apply to Hindus in Sikkim at all, it is so contended. On the pleadings raised by the parties at the trial Court formulated the following 8 issues for trial:
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Whether the plaintiffs have any cause of action to bring the instant suit?
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Whether the suit is barred by limitation?
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Whether the suit is properly valued?
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Whether the properties as described in Schedule 'A' to the plaint are coparcenery property/joint family property of the plaintiffs and the defendants?
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Whether the transfer of the property under Schedule 'B' to the plaint as effected by the defendant No. 1 in favour of defendant No. 3 by way of gift is void, inoperative and not binding upon the plaintiffs?
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Whether the suit is bad for mis-joinder and non-joinder of necessary parties?
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To what relief or reliefs, if any, are the plaintiffs entitled?
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Had the defendant No. 1 any right and authority to transfer the joint property as described in schedule 'B' to the plaint by executing the alleged Deed of gift?
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Pursuant to the order passed by the Court for production of documents, the plaintiffs produced as many as 36 documents marking them as Exhibit P-1 to Exhibit P-36. On their sides, the defendants produced as many as 58 documents. They also sought for summoning of 5 documents from proper custody. For various reasons the trial of the suit got adjourned. At that juncture, the defendants would file an application under Order XII Rule 6 CPC praying that the Court may pass a judgment in the suit dismissing the suit on the basis of admissions made by the plaintiffs in a Civil Suit No. 76/1986 on the files of Civil Judge, East Sikkim through the depositions of the deceased original first plaintiff Bhaskaranand Agarwal and the surviving 1st plaintiff Umesh Agarwal, that the immovable properties in question are not coparcenery properties and that the parties are not joint owners of the properties. Reliance was placed by the defendants on the depositions given by appellant No. 1 as PW-2 and also on their father Bhaskaranand Agarwal as PW-1 in that suit. To this application counter was filed by appellant No. 1 and appellant Nos. 2 and 3 separately and it was contended by the appellants that it is not correct to say that in Civil Suit No. 76/1986 plaintiff No. 1 and late Bhaskaranand Agarwal had admitted that Schedule-B property belongs absolutely to the 3rd defendant. It was also contended that it was not admitted that partition of the property scheduled to the plaint had taken place during the life time of Bhaskaranand Agarwal. It was also contended that the deposition in Civil Suit No. 76/1986 was given in the context of that civil suit and for the purpose of that suit only. It was contended that the subject matter of that civil suit and the present suit were entirely different. It was also contended that during trial it will be possible for the appellants-plaintiffs to convince the Court that the depositions in Civil Suit No. 76/1986 was given on the basis of an understanding between the members of the undivided family namely Bhaskaranand Agarwal, Mahesh Agarwal and Umesh Agarwal for accomplishment of their common end which was to evict a recalcitrant tenant who was not paying rent due in respect of the premises under his possession. It was contended that at any rate the so called admission is not liable to be...
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