The Father can Dispose-off the Self-Acquired Property, No Exceptions exists for his Descendants: High Court Of Sikkim

THE HIGH COURT OF SIKKIM : GANGTOK Civil Appellate Jurisdiction) DATED : 9th August 2021 SINGLE BENCH: THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI JUDGE RFA No.019 versus Ram Naresh Giri Krishnawati Devi and Others Appeal under Order XLI Rules 1 and 2 of the Code of Civil Procedure 1908 Mr. Jorgay Namka Legal Aid Counsel for the Appellant. Mr. Udai P. Sharma Legal Aid Counsel for the Respondents. JUDGMENT Meenakshi Madan Rai J. Aggrieved with the Judgment in Title Suit No.02 of 2016 dated 31.12.2018 of the Learned District Judge Special Division I Sikkim at Gangtok whereby the Learned Trial Court dismissed the Appellant‟s Suit the Appellant assails it herein. 2.(i) Learned Counsel for the Appellant advanced the argument that undisputedly the Appellant‟s father Thakur Giri had three sons the Appellant being his second son. Suresh Giri the eldest is untraceable since 1996 and is the husband of Respondent No.1. She is the mother of Respondents No.2 and 3. Respondent No.4 the third son suffered from mental illness from the year 2000 to 2005. That in 1998 the Appellant‟s father was allotted a plot of land measuring 12 feet x 10 feet vide Exhibit 1 by the Government of Sikkim wherein the Appellant constructed a four storeyed RCC building with his finances to the exclusion of his father and RFA No.019 2 Ram Naresh Giri vs. Krishnawati Devi & Ors. brothers. That the dispute has arisen on account of inequitable distribution of the First Floor by their father wherein two shops are being run by Respondents No.2 and 4 but a portion thereof was not allotted to the Appellant who claims one third share in it. It was urged that in the alternative the Respondents are liable to compensate him monetarily for his financial investment in the construction. That the Appellant furnished sufficient evidence before the Learned Trial Court to establish his case which was however disregarded. Even assuming that the evidence was inadequate by right he was entitled to one third share in his father‟s property which was denied to him. The Learned Trial Court reasoned that Exhibit A said to be a “Banda Patra” executed by the Appellant‟s father in their presence had distributed the property at his discretion. That the Learned Trial Court failed to appreciate that Exhibit A was executed by the “Sikkim Bihari Jagran Manch Branch Singtam East Sikkim” and not executed between the father and his sons only dividing the property in metes and bounds. While drawing the attention of this Court to the determination of the Issues framed it was contended that Issues No.3 and 4 were erroneously concluded observing that the Appellant was not entitled to a share of the Schedule “B” property in the Schedule “A” building the parties having been given their respective shares therein. That the Learned Trial Court failed to appreciate that Thakur Giri in his evidence Exhibit G before the Sub Divisional Magistrate East District at Gangtok had stated clearly that he would draw up a “Will” later for distribution of the property and Exhibit A was only a stop gap arrangement for the purposes of residence and business not ownership therefore the question of RFA No.019 3 Ram Naresh Giri vs. Krishnawati Devi & Ors. the Appellant having been allotted his respective share did not arise. That although the Learned Trial Court relied on Exhibit G it chose to ignore the deposition with regard to legal distribution of the said property. In the next leg of his argument Learned Counsel for the Appellant contended that the Learned Trial Court erred in concluding that the Appellant had not constructed the Schedule “A” building when in fact adequate evidence including documentary evidence was furnished to buttress this point hence the Judgment of the Learned Trial Court be set aside and the Appellant be given his fair share. Repelling the arguments of the Appellant Learned Counsel for the Respondents submitted that in Prayer “a)” of the Plaint he seeks one third share on the First Floor of the building to be given to him for his absolute occupation and use while in Prayer “b) ” he seeks an order in his favour directing the Respondents to pay him monetary compensation for the investment he had made in the building. That the Prayers are contradictory for the reason that either he ought to claim one third share in the property or monetary compensation for the investment made by him. Further till his father was alive he made no claims of financial investment such claims have arisen post his father‟s demise in 2013 the Suit having been filed on 15.01.2016 sans explanation for the delayed filing. That the bone of contention is Exhibit A dated 26.03.2006 but this document with clarity indicates division of the self acquired property of Thakur Giri equally between his three sons. Paragraph “3.” of Exhibit A categorically indicates that although two shops were given to his two sons one Paan GomtiRFA No.019 4 Ram Naresh Giri vs. Krishnawati Devi & Ors. was given to the Appellant thereby providing all of them with business avenues. Rather fairly Thakur Giri had elucidated in Exhibit A that should the Paan Gomti come to be closed by the Government then the two shops in the First Floor would be divided into three and the Appellant given one of the shops. Exhibit A was duly signed by Thakur Giri and the Appellant‟s brothers Suresh Giri and the Respondent No.4. Despite his presence at the meeting the Appellant refused to sign on the document which in any event is of no consequence since his father had chosen to distribute his self acquired property as he saw best. If the Appellant was disgruntled by such distribution he ought to have assailed it during the lifetime of his father apart from the fact that all the sons including the Appellant acted upon the contents of Exhibit A and took possession of the respective floors allotted to them in consonance with Exhibit A. That there is no denial by the Appellant that Schedule “A” was a self acquired property neither was any evidence furnished to prove the contrary. The vehement claim that the Appellant had financial expenditure construction failed to find support in the evidence brought forth by him as all such vouchers pertained to the year 2006 whereas the Schedule “A” premises were concededly completed in the year 2004 fortified by the fact that no documentary evidence emanated to establish that he had any source of income at the relevant time. In light of the arguments canvassed the Judgment of the Learned Trial Court warrants no interference and the Appeal deserves a The submissions advanced by Learned Counsel for the parties were heard at length and duly considered. The pleadings RFA No.019 5 Ram Naresh Giri vs. Krishnawati Devi & Ors. all evidence documents on record and the impugned Judgment have also been perused. Before embarking on a discussion on the merits of the matter we may briefly refer to the facts of the case. The Appellant as Plaintiff filed a Suit for Partition Declaration Recovery of Possession and other Consequential Reliefs. The Appellant‟s father vide Exhibit A divided Schedule “A” property viz. one four storeyed RCC building measuring 12 feet x 10 feet at Singtam Bazaar East Sikkim amongst his sons i.e. the Appellant Respondent No.4 and one Suresh Giri the husband of Respondent No.1. The building was constructed on the self acquired property of Thakur Giri the land being an allotment made by the Urban Development and Housing Department Government of Sikkim vide Exhibit 1 dated 28.10.1998. Schedule “B” premises which houses two shops were allotted to Respondent No.1‟s husband and to Respondent No.4. The Appellant is aggrieved that he was not allotted shop space in the Schedule “B” premises. His additional grievance is that he is entitled to one third share thereof as he has solely constructed the Schedule “A” building apart from which he claims monetary compensation for his financial investment in Schedule “A.” Hence the prayers in the Plaint inter alia as follows: “a) Transfer of absolute rightful possession respect of proportionate share i.e. 1 3 on the first floor of the said building in his name for his absolute occupation and use. b) An order may kindly be passed in favour of the Plaintiff directing the Respondents to pay the commensurate amount of their share on construction materials used purchased by the Plaintiff during the construction of the said building the said amount may kindly be paid to this Plaintiff. c) Any other relief or reliefs …” The Respondents denied and disputed the claims of the Appellant and claimed that the Schedule “A” property being self RFA No.019 6 Ram Naresh Giri vs. Krishnawati Devi & Ors. acquired could be distributed by Thakur Giri as he thought fit. That the Appellant had no evidence to establish his claim of financing the construction of the building and his claims being false and baseless are liable to be rejected with exemplary costs. The Learned Trial Court settled the following issues for “(1) Whether the suit is maintainable 2) Whether the Plaintiff had constructed the Schedule A building without any help or investment from the Defendants or his father Late Thakur Giri And if so whether he is entitled to be reimbursed for the expenses incurred by him(particularly for the portions under occupation of Defendants) 3) Whether the Plaintiff is entitled to one third share of the Schedule B property i.e. the first floor of the Schedule A building 4) Whether the Schedule B property was given to the Defendant No.4 and Late Suresh Giri(husband of Defendant No.1 and father of Defendants No.2 & 3) during the partition done by their father Late Thakur Giri on 26.03.2016(sic) After examining the evidence of the witnesses and hearing the arguments of Counsel for the parties the Learned Trial Court took up Issue No.2 first for discussion. The Court examined the certified copies of various vouchers payments and found that Exhibits 5 7 11 13 and 16 were prepared on various dates in the year 2006 two years after completion of the Schedule “A” building these documents RFA No.019 7 Ram Naresh Giri vs. Krishnawati Devi & Ors. resultantly did not support the Appellant‟s case. Exhibits 8 and 9 revealed various sums of money were taken by the Appellant but as loan in his father‟s name. The authors of Exhibits 4 6 12 14 15 17 and 18 were not produced before the Court by the Appellant. Exhibit 10 was discarded by the Court for the reason that it was improbable that accounts from July 1999 to July 2004 would have been maintained on a single slip of paper. Exhibit 37 said to be admissions by Respondents No.2 and 3 of the fact that the Appellant had incurred expenditure for construction of the Schedule “A” building were disregarded by the Learned Trial Court lacking substantiation of the claims as required by the provisions of the Indian Evidence Act 1872. Exhibit 38 was also rejected as the author of the document was not produced as a witness. On the other hand the Court observed that the Respondents had failed to prove that there was any financial contribution made by them towards the construction of the Suit building which it emerged in evidence was solely constructed by Thakur Giri as proved by Exhibit B a Mortgage Deed indicating that he had obtained loan from a financial Institution viz. SIDICO in Sikkim after mortgaging the Schedule “A” property. Exhibit D which was produced by the Respondents to prove that Thakur Giri had taken loan from his daughter Gayatri Devi for construction of the Third Floor of the Schedule “A” building was rejected having been found suspicious as the Stamp Paper on which the loan agreement was executed was admittedly manufactured by the Sikkim Government in the year 2018 whereas the execution of the contents were said to have been prepared and signed in 2004. Resultant Issue No.2 was decided in the negative. RFA No.019 8 Ram Naresh Giri vs. Krishnawati Devi & Ors. Issues No.4 and 3 were next taken up together and it was observed that vide Exhibit A Thakur Giri had distributed the various floors of the Suit building amongst his sons. That the property was neither joint family property nor ancestral property in which the sons of Thakur Giri would have any interest while he was alive. That Thakur Giri having distributed the various floors of the Suit building vide Exhibit A amounted to irrevocable license in favour of his sons in terms of Section 52 of the Indian Easements Act 1882 and the Appellant was not entitled to any share in the First Floor of the Suit building. Issue No.4 was decided in the affirmative and Issue No.3 in the negative. iii) On Issue No.1 the Learned Trial Court concluded that in view of the findings on the various Issues the Suit cannot be held as maintainable and the Issue decided accordingly. The Issues that arise for determination by this Court are 1. Whether the Appellant is entitled to one third share in the Schedule “B” premises which exists in Schedule “A” building the self acquired property of his father and 2. Whether the Appellant constructed the “A” building by financially to the exclusion of his father and brothers While considering the first Issue as settled by this Court supra the undisputed fact is that the property is the self acquired property of Thakur Giri having been allotted to him vide Exhibit 1. Consequently vide Exhibit A he distributed the property amongst his sons and the contents of Exhibit A have been duly proved and admitted by the parties. It is now settled law that the father has the prerogative to distribute his self acquired property RFA No.019 9 Ram Naresh Giri vs. Krishnawati Devi & Ors. as he desires. In this context beneficial reference may be made to the decision of the Hon‟ble Supreme Court in C.N. Arunachala Mudaliar vs. C.A. Muruganatha Mudaliar and Another1 wherein it was held inter alia as follows “8. For a proper determination of the question it would be convenient first of all to refer to the law laid down in Mitakshara in regard to the father s right of disposition over his self acquired property and the interest which his sons or grandsons take in the same. Placitum 27 Chapter I Section 1 of Mitakshara lays down: “It is settled point that property in the paternal or ancestral estate is by birth though the father has independent power in the disposal of effects other immovables for indispensable acts of duty and for purposes prescribed by texts of law as gift through affection support of the family relief from distress and so forth but he is subject to the control of his sons and the rest immovable estate whether acquired by himself or inherited from his father or other predecessors since it is ordained „though immovables or bipeds have been acquired by man himself a gift or sale them should not be made without convening all the sons”. Mitakshara insists on the religious duty of a man not to leave his family without means of support and concludes the text by saying: “They who are born and they who are yet unbegotten and they who are still in the womb require the means of support. No gift or sale should therefore be made.” 9. Quite at variance with this precept which seems to restrict the father s right of disposition over his self acquired property in an unqualified manner and in the same way as ancestral lands there occur other texts in the commentary which practically deny any right of interference by the sons with the father s power of alienation over his self acquired property. Chapter 1 Section 5 Placitum 9 “The grandson has a right of prohibition if his unseparated father is making a donation or sale of effects grandfather: but he has no right of interference if the effects were acquired by the father. On the contrary he must acquised because he is dependent.” The reason for this distinction is explained by the author in the text that follows: “Consequently the difference is this: although he has a right by birth in his father s and in his grandfather s property still since he is dependent on his father in regard to the paternal estate and since the father has a predominant interest as it was acquired by himself the son must acquiesce in the father s disposal of his own acquired property.” 1 AIR 1953 SC 495 RFA No.019 10 Ram Naresh Giri vs. Krishnawati Devi & Ors. law. The rules of positive for consideration before ....The question came the Judicial in the case of Rao Balwant v. Rani Kishoriand Lord Hobhouse who delivered the judgment of the Board observed in course of his judgment that in the text books and commentaries on Hindu law religious and moral considerations are often mingled with rules of positive law. It was held that the passages in Chapter I Section 1 Verse 27 of Mitakshara contained only moral or religious precepts while those in Section 5 Verses 9 and 10 consequently would override the former. It was held therefore that the father of a joint Hindu family governed by Mitakshara law has full and uncontrolled powers of disposition over his self acquired immovable property and his male issue could not interfere with these rights in any way. This statement of the law has never been challenged since then and it has been held by the various High Courts in India and in our opinion rightly that a Mitakshara father is not only competent to sell his self acquired immovable property to a stranger Vide Muddun v. Ram 6 WR 71] but he can make a gift of such property to one of his own sons to the detriment of another and he can make even an unequal distribution amongst his heirs“5. The findings recorded by the High Court inter alia are that execution of the gift deed was not specifically denied in the suit filed. Therefore it is not necessary for the donee to examine one of the attesting witnesses in terms of the proviso to Section 68 of the Evidence Act 1872 16 SCC 255 RFA No.019 11 Ram Naresh Giri vs. Krishnawati Devi & Ors. 15 11 1977 as the property was not ancestral in the hands of donor. The relevant findings on such questions which arose for consideration in the second appeal read as under: law as 105. The case of the plaintiffs is very specific. According to them the suit properties were purchased by their grandfather and those properties came to be devolved upon their father by testamentary disposition i.e. on the strength of the will of their grandfather. The today clearly it stands postulates that if it is a self acquired property of the father it falls into the hands of his sons not as coparcenary property but would devolve on them in their individual capacity. Where the property is a self acquired property of the father it falls into the hands of his son individual capacity and not as in his coparcenary property in such case son s son cannot claim right in such property. … 114. In view of the above I hold that the suit properties were self acquired properties of the father of the plaintiffs and in such circumstances it was open for the father of the plaintiffs to execute the gift deed in favour of the defendant.” Emphasis supplied) The ratiocinations extracted supra propound with clarity the position of law when the property is self acquired by the father and he has the right of disposition over it to which no exception can be taken by his sons male descendants as in the instant case. Exhibit A has been executed by Thakur Giri in the presence of the “Sikkim Bihari Jagran Manch” and in the presence of his two sons and he was clothed with the discretion to dispose of his self acquired property as he deemed fit. Further arguments on this point stand truncated in view of the established position of law suffice it to add that neither can the Appellant seek an equitable distribution of the Schedule “A” building nor does he have any entitlement to it merely by virtue of being the son of Thakur Giri and he can lay no claim of equitable share in it. If Thakur Giri chose not to execute a Will after execution of Exhibit A the Appellant has no authority to question his decision. RFA No.019 12 Ram Naresh Giri vs. Krishnawati Devi & Ors. PW3 runs a stationery business and claimed to have loaned Rs.45 208 only to the Appellant and construction materials including bricks. Considering that he runs a stationery business it is not explained as to how he would be in a position to supply construction materials to the Appellant. Exhibit 10 said to support this transaction is dated 15.11.2004 but does not specify that it was for construction of the Schedule “A” building. iii) As observed by the Learned Trial Court it is highly unlikely that accounts from the year July 1999 to July 2004 could have been maintained on a single slip of paper with no history of repayment during the five years. Evidently it is a document prepared for the purposes of this Suit and cannot be said to be unimpeachable. Exhibits 5 7 13 and 16 came into existence after October 2006 except Exhibit 11 which is dated 20.10.2006. Although the Appellant relied on Exhibit 8 and Exhibit 9 as loan documents however PW2 while identifying Exhibit 9 deposed that the document revealed that Rs.8 000 only cash had been taken in the name of the Appellant‟s father from one Balbachan Giri as loan for construction of a house. PW7 Sambhu Giri son of Balbachan Giri also identified Exhibit 9 and supported the evidence of PW2 to the extent that the loan was taken by the Appellant in the name of his father. It is not their evidence that the Appellant had taken the loan personally. The evidence of the masons PW4 and PW5 who deposed that payments used to be made by the Appellant during the construction of Schedule “A” building does not establish that the payment incurred for their wages was his exclusive expenditure this is fortified by RFA No.019 13 Ram Naresh Giri vs. Krishnawati Devi & Ors. the fact that the Appellant has not furnished evidence to reveal his income at the relevant time. If the Appellant was constructing the house single handedly why would the need arise for him to take monetary loan from all and sundry in his father‟s name Exhibits 4 6 12 15 17 and 18 have no probative value the contents of the documents remaining unproved. Schedule “A” building was completed in the year 2004 the money receipts are of 2006 and therefore can be met with nothing but disbelief and points to manufacturing of evidence rather unsuccessfully. The Learned Trial Court has correctly concluded that Exhibits 5 7 11 13 and 16 were prepared post the construction viz. in the year 2006 two years after construction of Schedule “A” building which admittedly was completed in 2004. Exhibits 23 and 24 are Government Revenue Receipts in the name of Thakur Giri dated 07.04.2003 and 06.01.2000 respectively whereby he has deposited Ground Rent. These documents were identified by the Appellant himself and buttress the fact that as owner of the building on the allotted land he was responsible for payment of the Ground Rent. iv) The issue of inequitable distribution of the Schedule “A” building and of the Appellant having financed it arose only after the death of Thakur Giri. Even during the preparation and execution of Exhibit A the Appellant made no such claim. This fact by itself fails to lend credence to the belated claims of the Appellant. At this juncture it may be remarked that reference to Section 52 of the Indian Easements Act of 1882 pertaining to License in Paragraph 44 of the impugned Judgment is uncalled for and irrelevant for the reason that License does not create any interest in the property which it relates. It only confers legality on RFA No.019 14 Ram Naresh Giri vs. Krishnawati Devi & Ors. an act which would otherwise become unlawful. The issue in the Suit is not concerned with License at all. Having said that both the Issues supra are thus determined against the Appellant. That apart although it is not the subject matter of the Suit but from the evidence it can be culled out that the Appellant though not given a shop in the four storeyed building was given a Paan Gomti in Singtam Bazaar for the purposes of running his Hence in consideration of the entirety of the facts and circumstances hereinabove I find that the Judgment of the Learned Trial Court brooks no interference. Appeal fails and is dismissed. RFA disposed of accordingly as also I.A. No.01 of No order as to costs. Copy of the Judgment be sent to the Learned Trial Court for information along with its records. business. 2019. Judge 09.08.2021 ml Approved for reporting : Yes 

Summary: The Appellant as Plaintiff filed a Suit for Partition, Declaration, Recovery of Possession, and other Consequential Reliefs. The Learned District Court dismissed the case and the aggrieved appellant moved to High Court. After considering the facts and decision of the District Court, the High Court also dismissed the case. The Hon’ble High Court of Sikkim before Mrs. Justice Meenakshi Madan Rai held such in the matter of Ram Naresh Giri vs. Krishnawati Devi &amp; Ors.[ RFA No.02 of 2019]. The facts of that case were the aggrieved party moved to the High Court after his suit was dismissed by the learned District Judge, Special Division-I, Sikkim at Gangtok. The Appellant’s father had three sons and the appellant was the second son. The husband of Respondent No.1 who is the eldest son is untraceable since 1996. Respondents No. 2 &amp; 3 are the children of Respondent No. 1. Respondent No. 4 was the third son and suffered mental illness from 2000 to 2005. Appellant constructed a 4 storey RCC building on the plot which was allotted to his father by Sikkim Government in 1998. All the finance was done by the appellant himself. The dispute is between the inequitable distribution of the first floor where Respondent No. 2 and 3 have 2 shops. Appellant wasn’t given a portion despite having one-third share in it. The alternate was to compensate him monetarily for his investments in the property. The Learned Trial Court contended,” Issues No.3 and 4 were erroneously concluded observing that the Appellant was not entitled to a share of the Schedule “B” property in the Schedule “A” building, the parties having been given their respective shares therein.” The Appellant claimed that they had constructed the building under schedule A and produced the required shreds of evidence as well and plead to set aside the Judgment given by the learned trial Court.   In the current trial, the Respondents denied and disputed the claims made by the appellant and claimed that the property wasn’t under Schedule A and was self-acquired. Also, the Appellant had no evidence to claim that he financed the construction.  The court found that the shreds of evidence produced by the Appellant were of 2006 which is after 2 years of construction and didn’t support the case. The court decided that since the floors were divided by the father they are irrevocable as per Section 52 of the Indian Easements Act, 1882, and hence, the Appellant has no right over the 1st floor of the property.  The Hon’ble High Court held,” the undisputed fact is that the property is the self-acquired property of Thakur Giri having been allotted to him vide Exhibit 1. Consequently, vide Exhibit A he distributed the property amongst his sons, and the contents of Exhibit A have been duly proved and admitted by the parties. It is now settled law that the father has the prerogative to distribute his self-acquired property as he desires.” The court referred to the decision of the Hon’ble Supreme Court in C.N. Arunachala Mudaliar vs. C.A. Muruganatha Mudaliar and Another[AIR 1953 SC 495] and Govindbhai Chhotabhai Patel and Others vs. Patel Ramanbhai Mathurbhai[(2020) 16 SCC 255] and said,”.. the position of law when the property is self-acquired by the father and he has the right of disposition over it, to which no exception can be taken by his sons/male descendants, as in the instant case.” The Hon’ble High Court of Sikkim in the light of the facts and circumstances found that the judgment of the Learned Trial Court brooks no interference and gave no orders as to cost. The appeal failed and was dismissed by the Court.