Binapani Paul vs Pratima Ghosh & Ors

The said power of attorney, however, was preceded and followed by two telegrams of Dr. Ghosh addressed to his brother in relation to execution thereof as also purchase of the said property. The said power of attorney was executed before a Magistrate at Rangoon. Dr. Ghosh was an attesting witness therein. Interestingly, Suprovabala described herself as daughter of Babu Rangalal Ghosh and not the wife of Dr. Ghosh therein. A registered indenture was executed on 16.11.1935 by the Administrator General of Bengal to the estate of Edurn St. Clair Vallentine in favour of Suprovabala for a sum of Rs. 26,000/-. Indisputably, during the life time of Dr. Ghosh, the name of Suprovabala was mutated. She had all along been in possession of the said property. Dr. Ghosh died in Rangoon in the year 1940. Suprovabala continued to reside in the suit premises. She died on 26.05.1942 leaving, as indicated hereinbefore, seven daughters and son Amal. Amal was married to Respondent No. 1 herein in 1946.

In the year 1958, the daughters of Suprovabala got their names mutated in place of their mother. Amal objected thereto, but his objection was rejected. Marriage of four sisters of Amal took place in the suit premises during the period 1944 to 1970. Although initially all the sisters and the brother were living together in the said house, inter alia, after their marriage the daughters of Suprovabala started living at their respective husbands' places. However, three sisters allegedly continued to live in the said house till May, 1958 but they had to leave it because of ill-treatment of Amal and his wife. It appears that in the year 1964, two unmarried daughters of Suprovabala who had been living there were also compelled to leave the house. They filed a suit for maintenance with liberty to claim their right to take appropriate legal action to recover their share of the said premises at an appropriate time, which was allowed by the High Court. Three out of the seven daughters of Dr. Ghosh filed a suit for partition against Amal on 19.09.1973 claiming 3/7th share of the property of their mother, a final decree for partition as also a decree for accounts.

We do not have any direct evidence of conclusive nature in this regard before us. We must, therefore, deal with the matter on reasonable probabilities and legal inferences.

Interestingly, Amal pleaded ouster. If ouster is to be pleaded, the title has to be acknowledged. Once such a plea is taken, irrespective of the fact that as to whether any other plea is raised or not, conduct of the parties would be material. If, therefore, plea of ouster is not established, a' fortiori the title of other co-sharers must be held to have been accepted.

[See also See also Govindammal v. R. Perumal Chettiar & Ors., (2006) 11 SCC 600 and P.T. Munichikkanna Reddy & Ors. v. Revamma and Ors., Civil Appeal No. 7062 of 2000 decided on 24th April, 2007] Amal, therefore, could not have turned round and challenged the title of the appellant and other respondents. [See Syed Abdul Khader v. Rami Reddy and Others (1979) 2 SCC 601] PW-3 in her evidence made three significant statements:

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For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The judgment of the Trial Court is restored. The appeal is allowed. In the peculiar facts and circumstances of this case, however, there shall be no order as to costs.