Surendra Kumar Sinha CJ
Syed Mahmud Hossain J
Hasan Foez Siddique J
Mirza Hussain Haider J
Abdur Rahim Molla ............
(In CA Nos. 325 & 330 of 2009)
Prosenjit Kumar Shaha and others
(In all the appeals)
November 22nd, 2016
Transfer of Property Act (IV of 1882)
'Youtuka' is a kind of gift and such gift if made at the time of marriage of daughter is valid in respect of immovable property and no registration is required according to Section 123 of the Act. This term has been interpreted by the High Court Division of Calcutta as including not only gifts made before the nuptial fire but gifts made during continuance of the marriage ceremonies, that is, the ceremonies beginning with shraddha and ending with that of prostrating before the husband. It is conceived that it includes gifts from strangers made before the nuptial fire and at the bridal procession. . ..... (17)
Prem Mohan Das vs Hari Mohan Das, ILR (1925) 52 Calcutta 425 ref.
Shahidul Islam, Advocate, instructed by Shirin Afroz, Advocate-on-Record-For the Appellants (In all the appeals).
Probir Neogi, Senior Advocate, instructed by Mojibur Rahman, Advocate-on-Record-For the Respondents (In all the appeals).
Syed Mahmud Hossain J: All the appeals by leave are directed against the common judgment and order dated 10-7-2008 passed by the High Court Division making the Rules absolute in Civil Revision Nos. 571, 572, 573 of 1987 and discharging the Rules in Civil Revision Nos. 8692, 9205 and 9106 of 1991.
2. All the appeals involving similar questions of laws and facts having been heard together are now disposed of by this single judgment.
3. The facts, leading to the filing of these appeals, in a nutshell, are:
Prosenjit Kumar Saha and others as the plaintiffs filed Title Suit Nos. 980, 982 and 983 of 1975 against Abdur Rahim Mollah and Rashik Lai Saha in the Third Court of the then Munsif, Pabna for declaration of title to the suit land. Subsequently, the suits were renumbered as other Class Suit Nos. 36,37 and 38 of 1984. Their case, in short, is that the suit property described in 'Ka' schedule to the plaint originally belonged to Banomadhab Saha, while 'Kha' schedule land to Banomadhab Saha and one Jatish Chandra Saha in equal 8 annas share. Banomadhab Saha had no son but had a daughter Panchanani Saha. He orally gifted his entire property to his daughter Panchanani Saha as 'Youtaka', during her marriage with Sarat Chandra, who began to live in the, house of Banomadhab as domesticated son-in-law and possessed the gifted property. Jotish Chandra Saha gifted his 8 annas share to his mother Dharijyamoyee Saha and delivered possession to her, who in course of her owning and possessing in her absolute right, gifted the same to her brother-in-law's daughter Panchanani by a registered deed of gift dated 7-10-1941. Said Panchanani thereby became owner of 16 annas share of the entire suit property described in 'Ka' and 'Kha' schedules to the plaint. While owning and possessing the same through her bargadars, she died on 5-12-1967 childless but her husband Sarat Chandra while owning and possessing the same died on 16-3-1972 leaving behind 3 grand sons, namely, Prosanjit, Nitai and Amarendra, all sons of Sarashibala, the predeceased first wife Banamadhab. The aforesaid grandsons of Banamadhab are of plaintiffs in the instant suit and they became owners of 16 annas share of the suit property. Defendant No.1, Abul Hossain Khan, a desperate person, disclosed in the month of July, 1976 that he has purchased the suit property in the month of Joistha, 1383 BS from defendant No.2, Rashik Lai but as a matter of fact, he had no interest whatsoever in the property inasmuch as his father Tustalal, full sister's son of Banomadhab had died before Panchanani on 30-3-1965. Thus the plaintiffs' title became clouded and hence the suit was filed.
4. Defendant No.1 contested the suit by filing written statement, denying all the material statements made in the plaint. His case, in short, is that Banomadhab and Banamali were 2 full brothers. The suit properties described in 'Ka' schedule to the plaint belonged to Banomadhab while 'Kha' Schedule to Banamali in 8 annas shares. Jyotish Chandra son of Banoamali died leaving his mother Dharijamoyee and full paternal uncle Banomadhab. Dharijamoyee possessed 8 annas share in limited life interest and then died leaving behind aforesaid Banomadhab, who lied leaving a barren daughter Panchanani and full sister's son Tustalal, who inherited the property and began to possess the same through bargadars under the care of Panchanani and then died leaving a son Rashiklal, who sold the suit properties to defendant No.1 by kabala dated 11.06.1976. Defendant No. 1 remained in possession thereon since then. The suits are liable to be dismissed with cost.
5. The trial Court by judgment and order dated 31-7-1985 dismissed all the suits. Against the said judgment and decrees of the trial Court, the plaintiffs preferred Other Class Appeal Nos.157, 158 and 159 of 1995 before the learned District Judge, Pabna, who by his judgment and order dated 26-11-1986 allowed the appeals in part and decreed the suit in respect of 8 annas share in 'Kha' schedule land in favour of the plaintiffs.
6. Being aggrieved by the aforesaid judgment and decree passed by the appellate Court, the plaintiffs preferred three revisional applications before the High Court Division and obtained Rules in Civil Revision Nos. 571, 572 and 573 of 1987 and defendant No. 1 preferred three revisional applications before the High Court Division and obtained Rules in Civil Revision Nos. 8692, 9106 and 9206 of 1991. The learned Single Judge of the High Court of the High Court Division, upon hearing the parties, by the judgment and order dated 10.07.2008 made the Rules absolute in Civil Revision Nos.571, 572 and 573 of 1987 and discharged the Rules in Civil Revision Nos.8692, 9106 and 9206 of 1991.
7. Feeling aggrieved by and dissatisfied with the impugned judgment and order dated 10-7-2008 passed by the High Court Division, the leave-petitioners have filed Civil Petition for Leave to Appeal Nos.1936-1941 of 2008 and obtained leave in all the petitions on 12-4-2009 resulting in Civil Appeal Nos.325-330 of 2009.
8. Mr Shahidul Islam, learned Advocate, appearing on behalf of the appellants in all the appeals, submits that the High Court Division failed to consider the evidence on record that the plaintiffs hopelessly failed to prove their title to and possession in the suit land. He lastly submits that the High Court Division failed to consider properly the meaning of gift under Hindu Law and the law relating to transfer of immovable property through gift.
9. Mr Probir Neogi, learned Senior Advocate, appearing on behalf of the respondents in all the appeals, on the olher hand, submits that the plaintiffs inherited 'Ka' schedule and half of 'Kha' schedule properly, which is "Youtuka" of Panchanani and they inherited half of 'Kha' schedule land as grandsons of Panchanani's husband Sharat Chandra. He then submits that the defendant miserably failed to prove that Panchanani was a concubine of Sharat Chandra and that exhibit-3, the deed of gift of the year, 1941 proves that she is in fact the wife of Sharat Chandra and as such, no interference is called for.
10. We have considered the submissions of the learned Advocate for the appellants and the learned Senior Advocate for the respondents, perused the impugned judgment and the materials on record.
11. Before addressing the conflicting submissions of the learned Advocates of both the sides, it would be pertinent to go through the grounds, for which, leave was granted. The grounds are as follows:
"Panchanani Shaha was not wife of Sharat Chandra Shaha and the plaintiff could not produce any evidence to prove that Panchanani Shaha was the wife of Sharat Chandra Shaha and as such, the plaintiff did not acquire any right, title and interest in the suit land but the High Court Division did not consider the aforesaid aspect and thus committed error of law resulting in an error in the decision occasioning failure of justice.
The High Court Division failed to consider the evidence on record that the plaintiff hopelessly failed to prove their right, title and possession in the suit land.
The High Court Division failed to consider properly the meaning, of gift under the Hindu Law and the law relating to the transfer of immovable property through gift."
12. The trial Court came to a finding that the plaintiffs could not prove that Panchanani was not a concubine of Sharat Chandra and that Dharijyamoyee having the life interest in half of 'Kha' schedule land did not have any right to transfer half of 'Kha' schedule land to Panchanani. The trial Court also found that the plaintiffs could not prove their title to and possession in the suit land.
13. The appellate Court on the other hand found that the 'Ka' schedule land and half of 'Kha' schedule land owned by Banomadhab Saha went to Tustalal Shaha, the sister's son of Banomadhab Shaha and that the plaintiff are enlitled to only half of the 'Kha' schedule and which Dharijyamoyee gifted to Panchanani by a registered deed of gift dated 7-10-1941.
14. The High Court Division found that the defendant has admitted in the written statement that the property was transferred to Panchanani Shaha by gift and that she remained in possession thereof on behalf of Tusta Lai. The High Court Division held that defendant-witnesses also admitted possession of Panchanani Shaha for some times. SA khatians which have been exhibited in Court and marked as exhibits-2(a)-2(f) show that the name of Panchanani had been recorded in the khatians and she paid rent regularly as shown by exhibit-5 series.
The High Court Division further found that the alleged transfer of the suit land ih favour of Panchanani by way of 'Youtuka', and gift was acted upon. The High Court Division found that the plaintiffs contention to the effect that Tustalal died on 30-3-1964 before the death of Panchanani on 5-12-1967 was proved.
15. Admittedly, the 'Ka' schedule land longed to Banomadhab Shaha and the 'Kha' schedule land belonged to Banomadhab Shaha and his nephew, Joytish Chandra Shaha in equal shares. The plaintiffs contended that Banomadhab Shaha having no son gifted his entire property as "Youtuka" to his daughter Panchanani. The plaintiffs also contended that Joytish Chandra Shaha gifted his share orally to his mother Dharijyamoyee who gifted the same to his brother-in-law, Banomadhab's daughter, Panchanani by a registered deed of gift dated 7-10-1941.
Therefore, Panchanani became the owner of entire suit property. Panchanani died childless on 5-12-1964 (1374BS). Her husband Sharat Chandra died on 16-3-1972 leaving behind three grandsons of his son, Purna Chandra who was the son of Sharat Chandra's predeceased first wife Saralabala, that is, Puma Chandra was the step son of Panchanani. The names of the grandsons of Sarat Chandra Shaha are Prosenjit Saha, Nitaijit Shaha and Amarendra Nath 5haha alias Nirmaipada Shaha who are plaintiff Nos.1 to 3.
16. The defendant on the other hand contends that the suit property belonged to Banomadhab Shaha. Banomadhab Shaha died leaving behind daughter Panchanani and sister's son Tustalal Shaha. According to the defendant as per Dayabaga succession, Panchani being a barren daughter of Banomadhab is excluded from inheriting the property left behind by Banomadhab and as such, Sharat Chandra Shaha, his grandsons, plaintiff Nos. 1-3 were excluded from inheriting the property left behind by Banomadhab. The entire property has vested in the sister's son Tutalal and thereafter upon Rashiklal.
17. It is to be seen whether Banomadhab could gift the 'Ka' schedule land and half of 'Kha' schedule to Panchanani by way of 'Youtuka'.
According to Dayabaga School, the plaintiffs as Panchanani's step son's sons stand al serial No. 10 and in the absence of serial Nos.1-9, Panchanani's son's sons would inherit her 'Youtuka'. After the death of Panchanani's husband Sharat Chandra, his grandsons inherited half of 'Kha' land from him. Admittedly, 'Youtuka' is a kind of gift and such gift if made at the time of marriage of daughter is valid in respect of immovable property and no registration is required according to Section 123 of the Transfer of Property Act. 'Youtuka' has been defined in Molla's Hindu Law twentieth edition 'Youtuka', that is, gift made at the time of marriage.
This term has been interpreted by the High Court Division of Calcutta as including not only gifts made before the nuptial fire but gifts made during continuance of the marriage ceremonies, that is, the ceremonies beginning with shraddha and ending with that of prostrating before' the husband. It is conceived that it includes gifts from strangers made before the nuptial fire and at the bridal procession.
18. In this connection reliance may be placed on the case of Prem Mohan Das vs Hari Mohan Das, ILR (1925) 52 Calcutta 425 where the plaintiff (father) had pronounced to give a house to his daughter and thus had induced the bridegroom's party to agree to this marriage and he did not register the deed of gift but his daughter and son-in-law had been in possession of the said house for nearly 10 years in their own right. The father filed a suit to recover the house in question from the daughter's transferee's.
19. To the above case, it has been held that there was an ante-nuptial promise by the plaintiff which became a binding contract when the marriage followed and that the validity of such contract was well established.
In view of the above finding, we are of the view that 'Youtuka', that is, gift of immovable property made as consideration of marriage at the time of nuptial fire is valid.
21. As regards, the deeds of gift dated 7-10-1941 (exhibit-3), we find that in the said deed Panchanani was described as the wife of Sharat Chandra and as such, the claim of the defendants that Panchanani was concubine of Sharat Chandra has been falsified. Moreover, continuous living together for a long time proves that Sarat Chandra and Panchanani were husband and wife.
In fact, Panchanani was the wife of Sharat Chandra and that she inherited 'Ka' schedule land and half of 'Kha' schedule land as 'Youtuka'.
21. It is contended that Dharijyamoyee had no right to make a deed of gift in favour of Panchanani and such gift was illegal and as such, half of 'Kha' schedule property did not pass to Panchanani. The appellate Court found that the deed of gift made by Dharijyamoyee in favour of Panchanani on 7-10-1941 was a valid document. The appellate Court found that even if it is found that Joytish Chandra did not make oral gift to Dharijamoyee, Dharijyamoyee got half of 'Kha' schedule land after death of his son Joytish Chandra Shaha as life estate. The appellate Court rightly found that Dharijyamoyee could legally transfer the property which she got in life interest to Panchanani for legal necessity. The appellate Court noted that Dharijyamoyee became blind and Panchanani used to look after her and that prompted Dharijyamoyee to make gift of half of 'Kha' schedule land to Panchanani. Thereafter, Panchanani validly acquired half of 'Kha' schedule land by the deed of gift dated 7-10-1941.
22. Banomadhab's sister's son, Tustalal died on 30-3-1965 before Panchanani, who died on 5-12-1967. Therefore, Tustalal inherited nothing.
23. As regards possession, the appellate Court found that the plaintiffs have been in possession in part of the suit land. The High Court Division, however, on consideration of the oral evidence and the SA khatians, exhibits 2(a)-2(f) and the rent receipts, exhibit-5 series found that the plaintiffs are in possession of the entire suit land. The finding of possession of the High Court Division having been based on proper appreciation of evidence on record does not call for interference.
In the light of the findings made before, we do not find any substance in these civil appeals. Accordingly, all the appeals are dismissed without any order as to costs.