Calcutta High Court (Appellete Side)

Sikha Sarkar vs Amitava Chowdhury & Ors on 18 July, 2024

Author:
Rajasekhar Mantha

Bench:
Rajasekhar Mantha

18.07.2024.
Court No. 13
Item No. 34
sp F.A. No. 294 of 2014
With
CAN 5 of 2023
With
CAN 7 of 24
Sikha Sarkar
Versus
Amitava Chowdhury & Ors.

Mr. Siva Prasad Ghosh,
Ms. Srijani Mukherjee
...For the appellant.

1. Despite notice the respondents are not represented.

There is an affidavit of service on record.

2. The instant appeal is directed against the judgment

and order dated 11th August, 2014 passed by the

learned Civil Judge (Senior Division), 2 nd Court at

Contai, Purba Medinipur. The said judgment was

passed in four several suits that were heard

analogously. The said suits are as follows:-

The Suits

(a) The first suit, is T.S. 14 of 2012 previously 178

of 1998 filed by the appellant Sikha Sarkar

against the aforesaid legal heirs of Late Sushil

Kumar Chowdhury respondents and the

Administrator of Digha Development Scheme

(DDS). She prayed for decree seeking permanent

injunction against the respondents from
transferring the suit property to anyone except

herself.

(b) The second suit being T.S. 15 of 2012 previously

(T.S. 26 of 1999) has been filed by the appellant

Sikha Sarkar for declaration against the legal

heirs of the said Sushil Kr. Chowdhury and the

DDS seeking a declaration that she has right

title and interest on the whole suit property and

that the power of attorney dated 13.01.1997 was

void and illegal and permanent injunction

restraining the legal heirs of Sushil Chowdhury

from interfering with her peaceful possession of

the entire suit property and the hotel business.

(c) T.S. 13 of 2012 (previously T.S. 32 of 1999) is

the third suit, filed by Amitava Chowdhury and

five others claiming to be the legal heirs of one

Sushil Kumar Chowdhury against the appellant

Sikha Sarkar. In the said suit, the

plaintiffs/respondents have prayed for partition

of the suit property and have sought accounts of

a hotel called "Suman Hotel" situated at the suit

property (Land and Building) at Digha (a popular

sea resort in the South Bengal).

(d) The fourth suit being O.S. 16 of 2012 (previously

T.S 134 of 2001) has been filed by Sikha Sarkar

for transfer of the share of Sushil Kr.

Chowdhury in the suit property, in her favour
by the legal heirs of the said Sushil Kr

Chowdhury and the administrator of DDS. She

sought specific performance of the agreement

dated 08.10.1991 against the respondents.

Facts of the Case:

3. The case of the respondents/plaintiffs/legal heirs of

late Sushil Kumar Chowdhury in the plaint in T.S.

13 of 2012 is, inter alia, as follows,

(a) The father of the respondents Late Sushil Kumar

Chowdhury and Sikha Sarkar the appellant

jointly obtained a lease for 99 years, of 20.333

cottahs of land on 24th January, 1985 in plot no.

4 in the Economy Hotel Sector at Digha from the

Digha Development Scheme, now known as

Digha Sankarpur Development Scheme (DPS) for

a consideration of Rs. 41,866/- and an annual

rent of Rs. 1/-. The said lease was to enable the

said Sushil Kumar Chowdhury and Sikha

Sarkar to construct an economy hotel.

(b) The said Sushil Kumar Chowdhury and Sikha

Sarkar allegedly jointly constructed the said

hotel.

(c) The said Sushil Kumar Chowdhury died

intestate on 17th July, 1992 leaving behind the

respondents/ plaintiffs as his legal heirs. The

said respondents/plaintiffs/legal heirs being

residents of Kharda District- 24 Parganas,
entrusted Sikha Sarkar alone to run and

manage the affairs of the hotel, and pay their

share of profits after maintaining accounts, at

the end of each English calendar year.

(d) Sikha Sarkar allegedly taking advantage of the

absence of the plaintiffs, constructed a second

floor at the hotel without knowledge or consent

of the plaintiffs, or without obtaining proper

sanction from the DDS.

(e) The said Sikha Sarkar allegedly misappropriated

the share of profits of the plaintiffs and did not

render accounts of income and expenditure of

the said hotel to the plaintiffs/respondents.

(f) On 13th January, 1997 the legal heirs executed a

power of attorney in favour of one Sankar Sarkar

to obtain their father, Sushil's share of the

Southern portion of the property and construct

another hotel there at.

(g) The said legal heirs/plaintiffs/respondents

prayed for accounts for six years preceding the

suit and have also prayed for partition of the

suit property. Partition was sought of the half

share of the suit property of their father from

that of Sikha's share.

4. The defendant/appellant herein filed the written

statement and denied all the allegations in the

plaint. In the three suits filed by Sikha Sarkar
against the respondents/plaintiffs/legal heirs of

Sushil Kumar Chowdhury, she contended as

follows.

(a) The said Sushil Kumar Chowdhury was only a

joint applicant for the purpose of application of

lease before the Digha Development Authority

(DDS).

(b) The premium/salami of Rs. 41,866/- for the

lease was, however, paid in equal share by

Sushil Kumar Chowdhury and Sikha Sarkar to

the DDS.

(c) Sikha Sarkar has been paying annual rent to

DDS in her name since 1986.

(d) The hotel and the property, namely, Hotel

Suman, was constructed entirely by her from

her own funds, sometime in 1985.

(e) The construction plan for the hotel was prepared

and the entire expenses for obtaining the

estimate and engagement of workers and

purchase of construction material was done

exclusively by her from her own funds.

(f) Sanction for the plan for construction of the

hotel was applied jointly by herself and Sushil

Kumar Chowdhury and sanctioned 1988 as they

were joint lessees.
(g) Sikha Sarkar obtained a Sarai licence for

running the hotel in her name, albeit since the

year 1996.

(h) The telephone and electricity bills of the said

hotel were and are in her name.

(i) The municipal/panchayat tax including the

trade license and other statutory compliances

were paid and/or obtained exclusively in the

name of Sikha Sarkar.

(j) The aforesaid construction and obtaining of

documents and licenses above in the sole name

of Sikha Sarkar was done with the knowledge,

consent and concurrence of Sushil Kumar

Chowdhury.

(k) Sushil Kumar Chowdhury had never

participated nor was at all connected with

establishment and running of the hotel. He

hardly ever visited the said hotel Suman except

on two occasions since 1986.

(l) There was a mutual partition between Sushil

Kumar Chowdhury and Sikha Sarkar of the

leasehold land and suit property. The hotel was

constructed exclusively on the portion of Sikha

Sarkar on the northern portion of the property,

which fell into the share of Sikha Sarkar. Sushil

was to get the southern portion which is lying
vacant but was in the exclusive possession of

Sikha Sarkar.

(m) Sushil Kumar Chowdhury later agreed on

08.10.1991 to surrender and/or sell his share of

the southern portion of the leasehold property in

favor of Sikha Sarkar on payment of Rs. 1 lakh.

(n) Sikha Sarkar has paid a sum of Rs. 10,000/- on

08.10.1991 against a written money receipt in

furtherance of a deed of declaration and

settlement dated 08.10.1991 by Sushil Kumar

Chowdhury in the presence of witnesses.

(o) A request for sanction of the sub-

division/partition Clause 2(d) of the lease deed

dated 24th January, 1985 was made for and

received by the DDS.

(p) A power of attorney dated 13.01.1997 executed

by the legal heirs of Sushil Chowdhury in favour

of one Sankar Sarkar would establish, partition

and sub-division of the property and sub-

division of suit property between Sushil and

herself. The power of attorney to extent that it

claims the entire property and hotel is illegal.

(q) Sikha Sarkar was and is still ready and willing

to pay a balance sum of Rs. 90,000/- to Sushil

Kumar Chowdhury and/or his legal heirs

together with interest, if necessary.
5. Based on the pleadings the Court below framed the

following issues:

(a) Whether the suits are maintainable in its

present form and prayer?

(b) Whether the plaintiff/plaintiffs has/have

cause of action to institute the respective

suits?

(c) Whether the suits are barred by the

principles of estoppel, waiver and

acquiescence?

(d) Whether the suits are barred by defect of

parties?

(e) Whether the parties have right, title and

interest in the suit property?

(f) Whether the suit property was partitioned

between Sushil Kumar Chowdhury and Sikha

Sarkar?

(g) Whether Sushil Kumar Chowdhury executed

any agreement for sale or surrender in

respect of the suit property in favour of Sikha

Sarkar?

(h) Whether the plaintiff/plaintiffs is/are entitled

to get the decree as prayed for?

(i) To what other relief, if any, is/are the

plaintiff/plaintiffs (parties) entitled to?

6. On behalf of the legal heirs of Sushil Kumar

Chowdhury, Amitava Chowdhury (PW1), the
plaintiff no. 1 in T.S. 13 of 2012 deposed evidence.

PW/2 was Devendranath Dolui who was a Upper

Division Clerk attached to the DDS. PW/3,

Kalipada Shome was an employee of the

neighboring hotel, "Samudra Villa" at Digha.

7. The defendant Sikha Sarkar deposed herself as

DW/1. Madhab Sen, owner of an adjacent hotel

called "Holiday Home", next door to the Hotel

Suman was DW2. He was also a witness who

signed on the money receipt and a deed of mutual

partition of the suit property dated 8 th October,

1991. The deed of declaration was, however, not

exhibited in the Court below. It was referred to in

course of proceedings at the time of admission of

the instant appeal before a Division Bench of this

Court on 7th March, 2000.

8. DW 3 was one Bijay Maisad who was an employee

of the Hotel Suman. He stated that Sikha Sarkar

constructed the entire hotel and was in exclusive

possession of the entire lease hold property

including the vacant southern portion of the

property. He assisted Sikha in the construction of

the hotel. He stated that Sushil and his legal heirs

are not in possession of the suit property.

9. There is no effective cross examination by the

plaintiffs/ respondents, of any of the witnesses

produced on behalf of the appellant.
Findings of the Court Below:

10. The Court below found that it had jurisdiction

to entertain all four suits and could be maintained

by all the plaintiffs. The Court also found that the

suit was not barred by non-joinder of parties. The

Court also found that the partition of the suit

property could not be affected as claimed by the

legal heirs as there was no proper registered

document in this regard.

11. In respect of the claim of Sikha Sarkar that she

alone constructed the entire hotel by 1986 and was

running the same to the exclusion of Sushil Kumar

Chowdhury, the Court below did not find favour

with Sikha Sarkar. The Court below found that

there could not have been any construction on the

land, in 1986 as the plan for construction of the

hotel was sanctioned by the DDS in 1988.

12. The Court below found contradiction in the

stand of Sikha Sarkar, inasmuch, as she had

pleaded in T.S. 13 of 2012 and 15 of 2012 that

Sushil Kumar Chowdhury agreed to surrender his

share to her and yet in T.S. 14 of 2012 and O.S. 16

of 2012 contended that Sushil Kumar Chowdhury

agreed to sell his share to her. The prayer of

specific performance was held not maintainable.

13. The Court below disbelieved the money receipt

of Rs. 10,000/- was part payment by Sushil Kumar
Chowdhury towards any agreement of sale. There

was no agreement according to the Court below

that could be inferred from a money receipt alone.

14. The alleged power of attorney dated 13.01.1997

executed by the legal heirs of Sushil Kumar

Chowdhury in favour of Sankar Sarkar was equally

held not proved by Sikha Sarkar as the original was

not produced.

15. The Court below thereafter proceeded to hold that

Sikha Sarkar undertook unauthorized construction

on the second floor on the hotel. Based entirely on

a cash receipt of Rs. 1 issued by the DDS dated 2 nd

May, 2013 in the name of "Smt. Sikha Sarkar and

others", towards annual payment of lease rent the

Court below came to the conclusion that lease rent

for the entire plot was being paid in the joint names

Sushil and Sikha.

16. The Court therefore found the rights of the legal

heirs of Sushil in the suit property. The

plaintiffs/respondents/legal heirs of Sushil Kumar

Chowdhury were treated as joint lessees along with

Sikha Sarkar. The partition of the entire suit

property including the hotel was, therefore, allowed

between the plaintiff no. 1 to 6 in T.S.13 of 2012

and the said Sikha Sarkar.

17. The Court below also held that Sikha Sarkar

was liable to render accounts for the business of
the hotel Suman to the legal heirs of late Sushil

Kumar Chowdhury.

Analysis of this Court:

18. This Court has carefully considered the oral

evidence adduced by the parties and the

documentary evidence brought on record through

their respective witnesses.

19. This Court finds that the Court below has

misdirected itself in analyzing the evidence and has

not therefore correctly applied the decisions of the

Supreme and other court referred by it. The court

below has ignored the vital evidence that has come

on record.

20. There is ample evidence on record to suggest

that the hotel was constructed and was in operation

since 1986. It was for the DDS to have taken steps

against Sikha for any construction or commencing

business without sanction. No evidence has been

produced by the parties that the DDS has taken any

such action.

21. In the absence of the same the Court below

could not have ignored the evidence on record and

come to any finding that there was no construction

before 1988.

22. This Court finds that the evidence of Amitava

Chowdhury could not have been given any credence
whatsoever by the Court below. The said evidence is

contradictory and self-defeating for the following

reasons:-

(a) While PW/1 has stated that his father had

obtained a Serai licence in his favour until 1986,

he could not produce any document to that

effect. On the contrary, in cross-examination, he

has admitted that it was not possible for him to

say that there was a ferrule connection or a

Saraya licence obtained by his father.

(b) PW 1 has stated in examination in chief that his

father had contributed to the construction of the

hotel withdrawing the same from his post office

at Digha. He could not produce any documents

to that effect. In his examination he also stated

that his father paid a sum of Rs. 2.25 lakhs to

Sikha Sarkar for construction of the hotel.

(c) In cross-examination, however, he could not

even recollect the quantum of money allegedly

paid by his father to Sikha Sarkar. He has also

stated in cross-examination that he could not

recollect the source of money from where his

father had paid Sikha.

(d) He did not have any documents as regards

income tax returns of his father. He also could

not produce any document to show that his

father ever demanded or received any share of
profits of the hotel from Sikha Sarkar during his

life time.

(e) PW/1 chose to refer to the lease deed dated 24 th

January, 1985 as a partnership deed in his

cross-examination whereas no such partnership

deed in fact exists.

23. The case of the plaintiffs/legal heirs of late

Sushil Kumar Chowdhury for accounts ought to

have been thrown out on the basis of the aforesaid

contradictory evidence of PW/1. No decree for

accounts of the hotel could have been given to the

plaintiffs in T.S. 13 of 2012.

24. PW/2 is an Upper Division Clerk who has

stated that the share of Sushil Kumar Chowdhury

and the share of Sikha Sarkar was divided equally

by Digha Development Scheme. He also stated that

the request of partition and sub-division, in writing

of Sikha and Sushil was received and acknowledged

by the DDS by a separate letter in writing. The said

evidence would lend credence to the claim of parties

that there was a partition/division, albeit private, of

the suit property between herself and Sushil Kumar

Chowdhury.

25. Admittedly, the evidence on record clearly

establishes that the hotel in question is constructed

on the northern portion of the suit property, within

the share of Sikha Sarkar. The southern portion of
the property, in favour of Sushil Kumar Chowdhury

even as on date, remains vacant.

26. One must now notice the examination-in-chief

and cross-examination and the documents brought

on record by Sikha Sarkar DW/1.

(a) She obtained a Saraya licence in her name in

the year 1996.

(b) The telephone and electricity bills for the hotel

standing in her name.

(c) She paid annual rent until the year 2013 under

the lease agreement in her own name.

(d) The telephone and electricity bills for the hotel

were in the name of Sikha Sarkar.

(e) The estimate for construction of the hotel was

obtained from an architect by Sikha Sarkar in

1985 and purchased materials for construction

in 1986. The hotel was constructed in 1986-86.

(f) She has entered into a lease agreement with

Allahabad bank on 20th February, 1992 for

leasing the hotel to their employees.

(g) She entered into further lease agreement on 22 nd

September, 1998 with M/s Indian Airlines to

lease its hotel for their employees.

(h) She has also brought on record a letter

addressed to the Digha Development Authority

dated 5th February, 1986 for division of the suit

property between herself and Sushil Kumar
Chowdhury that is duly received by the DDS.

The DDS has acknowledge receipt of the same

by a separate letter in writing.

27. The above evidence demonstrates that Sikha

Sarkar is the one who paid the periodical rent, not

Sushil. The status of Sushil Chowdhury at best can

be termed as a one-time creditor who contributed 50

percent of the one-time payment made towards the

lease consideration. He, however, was never a lessee.

This court however cannot be unmindful of the fact

that there is a mutual partition between Sikha and

Sushil, which to a large extent vindicates the status

of Sushil as a co-lessee in spite of non-payment of

the annual rent by him.

28. The aforesaid evidence also clearly proves that

Sikha Sarkar had constructed the Hotel entirely on

her own. She had managed the Hotel from 1986

until 2013 and does so even today, exclusively on

her own. Sushil Kumar Chowdhury was never ever

involved in either construction of the Hotel or its

running financially or otherwise. He, for all intents

and purposes, in furtherance of the private

partition of the suit property, allowed Sikha Sarkar

not only to construct the Hotel but also to run the

same, bear expenses and liabilities for the same

and exclusively enjoy its profits, without any

demand or claim whatsoever.
29. The legal heirs of Sushil having failed to establish

any co-lesseeship between Sushil and Sikha, their

suit for partition should have been dismissed given

the dicta of the Supreme Court in
H. Vasanthi v.

A. Santha
, 2023 SCC OnLine SC 998.

30. However, since there is a mutual partition arrived

at between Sikha and Sushil, there is an explicit

acceptance of the fact by Sikha that Sushil indeed

used to have an interest in the suit property.
In
H.

Vasanthi
(supra), the court held:

14. The argument of learned Counsel for the
plaintiff lays substantial emphasis on the statutory
recognition of status as a coparcener to an
unmarried daughter by
Section 29A
of the Hindu
Succession Act and that the plaintiff is a non-

executant and, therefore, the plaintiff's share in the
coparcenary is available for partition. Briefly
stated, the applicability of Section 29A is not the
deciding factor but the deciding factor in the case
on hand is whether the suit property is available for
partition. The crucial circumstance is whether
the plaint schedule has the status or standing
of a coparcenary property and is available for
partition. The High Court, having examined each
one of the relevant circumstances, found that the
property is not available partition as of the date of
coming into force of Section 29A of the State
Amendment and dismissed the appeal. We have
perused the Judgment and concur with the
findings.

16. Exhibit A3 is a partial partition deed containing
three schedules. Schedule-I covers the entire
property, i.e., the total extent covered by premises
bearing No. 68 corresponding to new No. 24, G.N.
Chetty Road, T. Nagar, Madras, has five grounds
and 1185 square feet. The partial partition
allocated the property in Schedule-A to Defendants
1 and 2 and Schedule B to the parties of the second
part, i.e., the plaintiff herein. The plaintiff accepted
the property given in the 'B' Schedule. In this
aspect, the plaintiff has admitted that the present
suit schedule property belongs to the first and
second defendants and has taken separate
possession of the 'B' Schedule in Exhibit-A3 partial
partition. Plaintiff does not take steps to assail
Exhibit-A3 in the manner known to law but
proceeds to assume contrary to a clear
understanding and claims partition. We are
conscious that the factum of division is decided by
the cumulative effect of all attending circumstances
proved by the parties. Either the previous partition
or separate ownership of any property is accepted
on the evidence placed on record by the parties. In
the case on hand, the plaintiff is legally obliged to
discharge the burden that the plaint schedule is not
only a coparcenary but continued to be so even as
of 25.03.1989 and that the plaintiff is entitled to
enforce the claim for partition. Let us examine
whether the plaintiff discharged the burden on the
above touchstone...."

31. Therefore, what is required to be examined is

as to whether such mutual partition sans registration

is valid or not. The need for registration of a partition

deed may be discerned from
Section 17
of the THE

REGISTRATION ACT, 1908
Sec.17
is set out

hereunder:-

17. Documents of which registration is
compulsory.--(1) The following documents shall
be registered, if the property to which they relate
is situate in a district in which, and if they have
been executed on or after the date on which, Act
No. XVI of 1864, or the
Indian Registration Act,
, or the
Indian Registration Act, 1871
, or
the
Indian Registration Act, 1877
, or this Act
came or comes into force, namely:--

(a) ***********

(b) other non-testamentary
instruments which purport or operate
to create, declare, assign, limit or
extinguish, whether in present or in
future, any right, title or interest,
whether vested or contingent, of the
value of one hundred rupees and
upwards, to or in immovable
property;

(2) Nothing in clauses (b) and (c) of sub-
section (1) applies to--

(v) [any document other than the
documents specified in sub-section (1A)]
not itself creating, declaring, assigning,
limiting or extinguishing any right, title or
interest of the value of one hundred
rupees and upwards to or in immovable
property, but merely creating a right to
obtain another document which will,
when executed, create, declare, assign,
limit or extinguish any such right, title or
interest; or

32. Therefore the question that falls for

consideration is whether the mutual partition

between Sushil and Sikha has declared, limited, or

extinguished any right in the suit property given the

terms of
Section 17(1)
/(b). If the Mutual partition

between the two created a right to obtain a further

document for declaring and limiting any interest in

immovable property, then the same would not

require registration given the terms of
Section

17(2)
/(v) (supra).

33.
In
K. Arumuga Velaiah v. P.R. Ramasamy
,

reported in (2022) 3 SCC 757 on the need for

registering a partition deed, the Supreme Court has

held as follows:-

"30. Further, reliance was placed in Ram Lal
case [
Lachhman Dass v. Ram Lal
, (1989) 3 SCC 99]
on a decision of the Division Bench of the Madras
High Court in Ramaswamy Ayyar v. Thiru Athi
Naik [Ramaswamy Ayyar v. Thiru Athi Naik, 1903
SCC OnLine Mad 87 : ILR (1904) 27 Mad 43] ,
wherein it was observed that it is necessary to read
a document in order to ascertain, not what the
document intends to convey really but what it
purports to convey.

In other words, it is necessary
to examine not so much what it intends to do, but
what it purports to do. It was further observed in
para 14 as under : (
Ram Lal
case [
Lachhman
Dass v. Ram Lal
, (1989) 3 SCC 99] , SCC p. 106)

31.
In
Ram Lal
case [
Lachhman Dass v. Ram Lal
,
(1989) 3 SCC 99] , reliance was also placed
on
Ratan Lal Sharma v. Purshottam Harit [Ratan
Lal Sharma
v. Purshottam Harit, (1974) 1 SCC 671]
to hold that the arbitration award in the said case
did not just seek to assign a share of the
respondent to the appellant therein, but made an
exclusive allotment of the partnership assets
including the factory and liabilities to the appellant
therein. Therefore, the award in express words
purported to create rights in immovable property
worth a sum above Rs 100 in favour of the
appellant therein. It was accordingly held that it
would mandatorily require registration under

Section 17
of the Act.

45. Having regard to the aforesaid provisions of law
it can be safely concluded that the said award was
a mere arrangement to divide the properties in
future by metes and bounds as distinguished from
an actual deed of partition under which there is not
only a severance of status but also division of joint
family properties by metes and bounds in specific
properties. Hence it was exempted from registration
under
Section 17(2)(v)
of the Act. A document of
partition which provides for effectuating a division
of properties in future would be exempt from
registration under
Section 17(2)(v)
. The test in such
a case is whether the document itself creates an
interest in a specific immovable property or merely
creates a right to obtain another document of title. If
a document does not by itself create a right or
interest in immovable property, but merely creates a
right to obtain another document, which will, when
executed create a right in the person claiming relief,
the former document does not require registration
and is accordingly admissible in evidence
vide
Rajangam Ayyar v. Rajangam
Ayyar [Rajangam Ayyar
v. Rajangam Ayyar, 1922
SCC OnLine PC 52 : AIR 1922 PC 266] ."

34. It follows from the above that when a partition

allots specific properties to a person then it must be

compulsorily registered. However, when it creates a

mere right to obtain interest in immovable property

in the future, such document need not be

registered.

35. Notwithstanding non-registration, the deed

assumes significance from a different point of view

that is, it records the intention of Sushil and Sikha.
36. Such intention can be drawn by the court given the

Para no. 25 of
K Arumuga Velaiah
case (Supra):-

"25. In Siromani v. Hemkumar [Siromani v. Hemku
mar, (1968) 3 SCR 639 : AIR 1968 SC 1299] , one of
the questions raised was whether the validity of a
partition deed could be challenged as being
inadmissible in evidence on the ground that it had
not been registered as mandated under
Section
17(1)(b)
of the Act. In that case it was held that
under the recitals of Ext. D-4 considered therein,
there was allotment of specific properties to
individual coparceners and the document therefore
fell within the mischief of
Section 17(1)(b)
of the Act
as it required registration. Hence, the said
document was not admissible in evidence to prove
the title of the coparceners to any particular
property or to prove that any particular property
had ceased to be joint property. However, document
Ext.
D-4 considered therein was held to be
admissible to prove an intention on the part of the
coparceners to become divided in status; in other
words, to prove that the parties ceased to be joint
from the date of the instrument vide
Nani
Bai v. Gita Bai Kom Rama Gunge [Nani Bai
v. Gita
Bai Kom Rama Gunge, 1959 SCR 479 : AIR 1958
SC 706] . The said judgment is not applicable to the
facts of this case.

In
H. Vasanthi v. A. Santha
, 2023 SCC OnLine
SC 998, it was held as follows:-

15. We are alive to the principle that there
is no prohibition to effect a partition
otherwise than through an instrument in
writing by duly complying with the
requirement of law. In other words, the
division may also be effected under a
settlement or oral understanding. The
circumstances and manner of recognising
Defendants 1 and 2 as exclusive owners
are not disclosed by the plaintiff or
Defendants 1 and 2."

37. Therefore, this court can definitely come to a clear

finding of the intention of Sushil and Sikha to an

amicable and a mutual partition of the suit

property. Non-registration of the agreement dated

8th October, 1991 therefore cannot stand in the way

for decree for partition. Promissory estoppel would

also operate against Sikha in this regard.
38. This Court notes from Clause 2(d) of the lease

deed that sub-division of the leasehold land, is

permissible subject to the permission of the DDS.

An application to this effect has been made to

Digha Development Authority, receipt whereof is

confirmed by PW-2.

39. In so far Sushil's intension to sell his share in

the property to Sikha could be inferred from the

following evidence that has come on record.

(a) The letter of partition dated 5 th February 1986

addressed to the Administrator jointly by Sikha

and Sushil and receipt of the same by the DDS

on 16th April 1986.

(b) The Deed of Declaration and settlement dated

8th October 1991 at Annexure - H Page 551 of

Part-II of the Paper Book referred to by the

Division Bench of this Court.

(c) Sikha constructed the hotel only in her portion

of the property that is the northern part of the

suit land.

(d) The portions of Sushil's part i.e. southern side

of the property is lying vacant and in the

exclusive possession of Sikha.

(e) The legal heirs of Sushil have themselves

claimed partition of the property and have

demanded Sushil's share.
(f) The power of attorney dated 13.01.1997 has

been admitted by PW 1 in his cross

examination. The Court below therefore erred in

disbelieving or accepting the same.

(g) By said POA dated 13.01.1997, PW 1 admitted

having authorized Sankar Sarkar to take

possession and effect construction of new hotel

in the half share of their father in the southern

part of the property.

(h) The demarcation of the suit land may be

pending formal decision and acceptance by

DDS.

40. The money receipt and the evidence of DW-2

Madhav Sen and DW 3 Bijay Maisad assumes

substantial importance in the facts of the case. The

payment of Rs.10,000/- and the intention of Sushil

Kumar Chowdhury to surrender his right, title and

interest in the suit premises against payment of

Rs.1,00,000/- would definitely support the stand of

Sikha Sarkar. Sushil Kumar Chowdhury had

clearly intended to surrender/sell his

share/portion/right in the property (Southern half

of the property which is lying vacant till date) to

Sikha Sarkar.

41. The Court below has not even discussed and has

completely ignored the evidence of DW2 Madhab

Sen and DW 3 Bijay Maisad. Madhab Sen has
stated that he was present and signed as a witness

to the money receipt of Rs.10,000/- paid by Sikha

to Sushil on 08.10.1991. He has identified the

signatures of Sushil and the other witnesses and

that of Sikha on the said receipt.

42. Indeed, it is unusual that there are witnesses on a

money receipt. However, if this fact is read together

coupled with the deed of declaration and settlement

dated 08.10.1991 (placed before a Division Bench

on 7th March 2000), the case of Sikha Sarkar that

there was an agreement to sell and/or surrender

the southern portion of the suit property by Sushil

to Sikha is clearly established. The said fact is

further supported by the power of attorney dated

13th January 1997 admitted by PW1 Amitabha

Chowdhury in cross examination.

43. DW 3 Bijay Maisad, an employee of the said

hotel suman, has said that the hotel is constructed

on the Northern part of the suit plot and the vacant

southern part is in the exclusive possession of

Sikha Sarkar. He also said that the Chowdhury

family was not ever in possession of the property.

44. This Court therefore orders that the agreement

dated 08.10.1991 bearing the signatures of Sushil

Chowdhury, Madhab Sen, Sikha Sarkar and the

power of attorney dated 13 th January, 1997 referred

by Sikha Sarkar and admitted by Amitabha
Chowdhury should have been marked as exhibits

by the court below. The said two documents are

marked as exhibits AA1 and AA2 respectively.

The Application of the Plaintiffs under Order XLI

Rule 27:

45. It is at this juncture that this Court is inclined

to deal with the application under
Order XLI Rule

27 of the Code of Civil Procedure
filed by the

appellant Sikha Sarkar being CAN 5 of 2023 to

bring on records certain documents in the appeal

that were hitherto not produced in the trial Court.

46. The said documents are as follows:-

(a) a letter being Post Card dated 20 th April, 1987

addressed by Sushil Kumar Chowdhury to Suman,

son of Sikha Sarkar.

(b) Another handwritten letter dated 21 st July, 1985

addressed to Subrata Sarkar, Sikha Sarkar's

husband by Sushil Kumar Chowdhury.

(c) Another letter dated 7 th February, 1992 written

in the Bengali vernacular allegedly by Sushil

Kumar Chowdhury.

(d) A deed of declaration and settlement dated 8 th

October, 1991 between Sushil Kumar Chowdhury

and Sikha Sarkar.

(e) Although not annexed to the application is

another letter in original dated 7 th February, 1992

stated to have been written by Sushil Kumar
Chowdhury in the Bengali vernacular addressed to

Sikha Sarkar and her husband Subrata Sarkar

affectionately signed as Sushil Da. The said

document has been identified by Sikha Sarkar who

is personally present in Court today as to having

been received by post and through an employee of

Hotel Samudra Villa, who was acting as agent of

Sushil Kumar Chowdhury.

47. This Court is only inclined to take on record the

letters dated 7th February, 1992, 21st May, 1985,

Post Card dated 23rd March, 1992, inland letter in

two parts dated 20th March, 1992 and another

writing of Sushil Kumar Chowdhury. The reasons

for taking the said documents and marking them as

exhibits, under Order XLI, Rule 27 are, inter alia,

as follows,

(a) There is some evidence already on record in the

Court below and in the oral evidence of Sikha

Sarkar, the contents of the aforesaid documents.

Sushil appears to want Sikha to run hotel on

her own and had no interest in the business or

the suit property.

(b) The money receipt being Exhibit-A in the Court

below constituted an earnest money and/or part

payment of the said agreement between Sikha

Sarkar and Sushil Kumar Chowdhury. It

supports the oral evidence of Sikha Sarkar,
Sushil Kumar Chowdhury intended to,

surrender and/or sell his portion of the suit

property (southern portion) in favour of Sikha

Sarkar against a consideration of Rs. 1 lakh.

(c) Despite specific notice of mentioning and listing

of this appeal before this Court and notice of

service of the application under Order XLI, Rule

27 to the respondents, they have chosen not to

represent themselves before this Court. The

respondents, therefore, had no objection to the

aforesaid application under Order XLI, Rule 27.

(d) The nature and condition of the documents

produced in Court lend credence to the

statements in the application under Order XLI,

Rule 27 that Sikha Sarkar may not have had

access to these documents or could not produce

the same despite due diligence at the time of

trial of the four suits.

48. In the aforesaid circumstances, CAN 5 of 2023

shall stand allowed. Affidavit of service filed in

Court today is taken on record.

49. The aforesaid documents shall be marked as

Exhibits AA3, AA4, AA5, AA6, AA7 and AA8

respectively.

50. In the backdrop of the above evidence, the

question of any business partnership between

Sushil Kumar Chowdhury and Sikha Sarkar, or
contribution by Sushil in constructing or running

the Hotel did not and could not have arisen. The

legal heirs of Sushil Kumar Chowdhury being the

plaintiffs were, therefore, not entitled to any right or

claim any share in the Hotel business in the name

and style as "Hotel Suman" run exclusively by

Sikha Sarkar. In fact, the legal heirs of Sushil

Kumar Chowdhury could not produce a shred of

evidence to show that their father ever asked for

any sum of money from Sikha Sarkar out of the

Hotel business.

51. The question of any accounts or claim being

made by the legal heirs of Sushil Kumar

Chowdhury against Hotel Suman or the business of

Sikha Sarkar at the said Hotel, therefore, does not

and cannot arise. The Court below completely erred

in this regard. The decree passed by the Court

below, directing Sikha Sarkar to render account of

the hotel Suman to the legal heirs of Sushil Kr

Chowdhury shall, therefore, stand set aside.

52. Admittedly Sushil's share of the property is in

continuous possession of Sikha since 1986. While

the right of the legal heirs of Sushil in the southern

portion of the property may be existing it would be

contingent upon several factors.

53. The claim for specific performance of agreement

dated 8th October 1991 and a decree for sale of the
balance portion of the property of Sushil in favour

of Sikha Sarkar, is barred by limitation. The

agreement between Sikha and Sushil was in 8 th

October, 1991. Sikha has filed the O.S. 134 of 2001

(renumbered as 16 of 2012) more than six years

after expiry of the period of limitation.

54. However, the law of limitation would not

extinguish a right but only the remedy. Hence one need

to answer as to whether Sikha Sarkar is entitled to a

declaration of possession as regards the whole suit

property inclusive of the southern portion of the suit

property. (T.
S. 15
of 2012) The Supreme Court in

Ghanshyam v. Yogendra Rathi
, reported in (2023) 7

SCC 361 has held as follows :-

"16. Legally an agreement to sell may not be
regarded as a transaction of sale or a document
transferring the proprietary rights in an immovable
property but the prospective purchaser having
performed his part of the contract and lawfully in
possession acquires possessory title which is liable
to be protected in view of
Section 53A
of the
Transfer of Property Act, 1882. The said
possessory rights of the prospective purchaser
cannot be invaded by the transferer or any person
claiming under him.

17. Notwithstanding the above as the plaintiff-
respondent admittedly was settled with possessory
title in part performance of the agreement to sell
dated 10.04.2002 and that the defendant-appellant
has lost his possession over it and had acquired the
right of possession under a licence simpliciter,
exhausted his right to continue in possession after
the licence has been determined. Thus, the
defendant appellant parted with the possession of
the suit property by putting the plaintiff-respondent
in possession of it under an agreement to sell. The
plaintiff-respondent in this way came to acquire
possessory title over the same. The
defendantappellant, as such, ceased to be in
possession of it as an owner rather occupied it as a
licencee for a fixed period which stood determined by
valid notice, leaving the defendant-appellant with no
subsisting right to remain in possession of the suit
premises."

55.
Section 53A
of the Transfer of Property Act
prescribes as follows :-

53A. Part performance.--Where any person contracts
to transfer for consideration any immoveable
property by writing signed by him or on his behalf
from which the terms necessary to constitute the
transfer can be ascertained with reasonable
certainty, and the transferee has, in part
performance of the contract, taken possession of the
property or any part thereof, or the transferee, being
already in possession, continues in possession in
part performance of the contract and has done some
act in furtherance of the contract, and the transferee
has performed or is willing to perform his part of the
contract, then, notwithstanding that or, where there
is an instrument of transfer, that the transfer has not
been completed in the manner prescribed therefor by
the law for the time being in force, the transferor or
any person claiming under him shall be debarred
from enforcing against the transferee and persons
claiming under him any right in respect of the
property of which the transferee has taken or
continued in possession, other than a right expressly
provided by the terms of the contract:

Provided that nothing in this section shall affect the
rights of a transferee for consideration who has no
notice of the contract or of the part performance
thereof.]

56.
Section 53A
permits equitable relief provided the

agreement to sell is in writing. This is to ascertain the

terms of the contract with certainty. Therefore even, if

the agreement to sell cannot be enforced for the laws of

Limitation, the terms of the contract, can be inferred by

a Court with certainty. The terms of the agreement can

be gathered from communication, conduct of the parties

the money receipt and the other evidence on record.

Sikha Sarkar is admittedly in possession of the

immovable property. Sikha would be entitled to the

benefit of the
Section 53A
.
57.
In
Ranchhoddas Chhaganlal v. Devaji Supdu

Dorik
, reported in (1977) 3 SCC 584 at page 587 the

Supreme Court held as follows :-

"10. The principal hurdle in the way of the
respondent is that the respondent has never been
ready and willing to perform the agreement, as
alleged by the appellant. The respondent alleged
that the consideration for purchase was Rs 12,000.
The respondent has never been ready and willing to
perform the agreement alleged by the appellant.
The respondent relied on the doctrine of part-
performance. One of the limbs of part performance
is that the transferee has in the part performance of
the contract taken possession of the property. The
most important consideration here is the contract.
The true principle of the operation of the acts of part
performance seems to require that the act in
question must be referred to some contract and
must be referred to the alleged one; that they prove
the existence of some contract, and are consistent
with the contract alleged. The doctrine of part
performance is a defence. It is a shield and not a
sword. It is a right to protect his possession against
any challenge to it by the transferor contrary to the
terms of the contract. The appellant is right in the
contention that there was never any performance in
part by the respondent of the contract between the
parties."

58.
In
D.S. Parvathamma v. A. Srinivasan
, (2003)

4 SCC 705 , the following was held :-

"6. The essential features of the equitable doctrine
of part-performance as statutorily modified and
incorporated in
Section 53-A
abovesaid, to the
extent relevant for the purposes of this case, are : (i)
that the transferee has, in part-performance of the
contract, taken possession of the property or any
part thereof, or the transferee, being already in
possession, continues in possession in part-
performance of the contract and has done some act
in furtherance of the contract, (ii) that the transferee
has performed or is willing to perform his part of the
contract, and (iii) that the plea of part-performance
is not available to be raised against a transferee for
consideration who has no notice of the contract or of
the part-performance thereof.

12. Strong reliance was placed by the learned
Senior Counsel for the appellant on a recent
decision of this Court in
Shrimant Shamrao
Suryavanshi v. Pralhad Bhairoba
Suryavanshi
[(2002) 3 SCC 676] wherein this Court
has held that a person obtaining possession of the
property in part-performance of an agreement of
sale, can defend his possession in a suit for
recovery of possession filed by the transferor or by
the subsequent transferee of the property claiming
under him, even if a suit for specific performance of
the agreement of sale has become barred by
limitation. (emphasis supplied) Clearly it was a
case where the person-in-possession was so
inducted in part-performance of the agreement of
sale. Excepting that his suit had gone barred by
limitation there was nothing else to deny the benefit
of the plea to the person-in-possession. The Court
proceeded on the reasoning that the law of
limitation barred the remedy but did not bar the
defence. The distinguishing features of that case
are that : (i) it was admitted that the transferee had
taken possession over the property in part-
performance of the contract, (ii) that the transferee
had not brought any suit for specific performance of
the agreement to sell, and (iii) the transferee was
always and still ready and willing to perform his
part of the contract.

These three significant factual
features are missing in the case before us and
therefore the appellant's effort to find support from
the authority of
Shrimant Shamrao Suryavanshi

case [(2002) 3 SCC 676] must fail. Bar of limitation
alone does not bar the plea of part-performance
being raised if all other requisites of
Section 53-A
of
the TP Act are available."

59. Therefore the fact that her suit for specific

performance of contract is barred by limitation would

not disentitle Sikha Sarkar from equitable relief under

Section 53A
.

60. This Court holds that there was a partition of the

Suit property between Sushil and Sikha. The

Southern portion of the property belongs to Sushil and

the northern portion was that of Sikha. There shall be

a decree to that effect. However the Southern portion of

the suit portion being the share of the legal heirs of

Sushil Kumar Chowdhury shall be subject to
Section

53A
of the Transfer of Property Act, 1882.
61. Hence there shall be a decree for declaration

that Sikha Sarkar is in possession of the share of

Sushil Chowdhury on the southern of the suit

property.

62. The impugned judgment and decree dated 11 th

August, 2014 is set aside.

63. The appeal is allowed to the extent and in the

manner indicated hereinabove.

64. Let the LCRs and added exhibits be sent back to

the Court below.

65. There shall be no order as to costs.

66. Urgent photostat certified copy of this order, if

applied for, be given to the parties upon compliance

of all formalities.

(Rajasekhar Mantha, J.)

(Ajay Kumar Gupta, J.)