Dismissed

Ganish Mahato v. Tarachand Soni

Gauhati HC14 Jun 2019RSA/108/2008

Case brief

AI extract

What is this about?

In this appeal, the Gauhati High Court examined the interpretation of a 1974 agreement between parties, which lower courts identified as a Partition Deed. The court addressed whether Section 22 of the Hindu Succession Act applied to confer preferential rights. Ultimately, finding no infirmity in the lower courts' conclusions regarding the deed's nature, the appeal was dismissed.

What did the court decide?

No infirmity or irregularity found in impugned judgment; appeal dismissed.

Ganish Mahato Vs Tarachand Soni — Partition | Gauhati HC (2019)

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Page No.# 1/4

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GAHC010003802008

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : RSA 108/2008

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1:GANISH MAHATO

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S/O LT. KALI PRASAD MAHATOO, R/O A.T.ROAD, JORHAT BLOCK NO.2, JOREHAT TOWN, DIST. JORHAT

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VERSUS

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1:TARACHAND SONI

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S/O LATE SHEW PRATAP SONI, R/O WARD NO.8, JOERHAT TOWN, A.T. ROAD, JORHAT.

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2:SWAMILAL MAHATOO S/O LATE BHIKIRAM MAHATOO R/O NEW VILLA ROAD W.NO.4 JORHAT TOWN DIST. JORHAT

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3:JORHAT DEVELOPMENT AUTHORITY JORHAT

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4:CHAIRMAN

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JORHAT DEVELOPMENT AUTHORITY JORHAT

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5:PHULMATI MAHATOO W/O LATE KALIPRASAD MAHATOO R/O A.T.ROAD BLOCK NO.2 JORHAT TOWN DISET. JORHA

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Advocate for the Petitioner : MS.M JAIN

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Advocate for the Respondent : MR.S PRAKASH

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Page No.# 2/4

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BEFORE HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI

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JUDGMENT

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Date : 14-06-2019

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Heard Shri G.N. Sahewalla, learned Senior Counsel assisted by Shri H.K. Sarma, learned counsel for the appellant. Also heard Shri K. Agarwal, learned Senior Counsel assisted by Shri B. Das, learned counsel for the respondents.

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The present appeal has been preferred against a judgment and decree dated 22.04.2008 passed by the learned Civil Judge, Jorhat in Title Appeal No. 25/2007 affirming the Judgment and Decree dated 27.08.2007 passed by the learned Munsiff No. 1, Jorhat in Title Suit No. 68/2006. The facts in brief may be put in a nutshell as follows:

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The present appellant was the defendant in the suit instituted by the respondents as plaintiffs. The suit namely T.S. 68/2006 was instituted by the appellant/plaintiff for a declaration, injunction and eviction. It may be mentioned that the father of the present appellant(plaintiff) and the defendants are brothers.

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It is projected that the predecessor-in-interest of the parties, namely, Bhikiram Mahato has instituted a suit for specific performance in the year 1960 amongst one Jugendra Nath Thakur. The said suit was decreed by a learned Court on 31.01.1966. However the Sale Deed pursuant to said decree was executed only on 02.01.1993 in which the said Bhikiram Mahato had paid the price of the land. Prior to the aforesaid Sale Deed, a MOU was executed on 22.08.1974 between the father of the plaintiff and the defendant pursuant to which there was division of the landed properties. It is a case of the plaintiff/appellant that according to the Sale Deed which was executed on 02.01.1993, his suit to be at par with that of the defendant and accordingly the suit was instituted.

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The suit was contested by the defendant by filing written statement and both the parties had adduced evidence through themselves. On the basis of the pleadings, 10 nos. of issues were framed for determination.

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Page No.# 3/4

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The learned Trial Court after hearing had passed a judgment and decree dated 27.08.2007 dismissing the suit by holding that there was no cause of action and no relief was entitled to by the plaintiff. The Issue No. 7 which was relating to the Deed dated 22.08.1974 was decided by holding that the said Deed was a Partition Deed which was executed by Kaliprasad Mahato and Sawamilal Mahato and negated the claim of the plaintiff for the same was a mere Memorandum of Understanding.

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The aforesaid Judgment and Decree was the subject matter of appeal in Title Appeal No. 25/2007 and the learned Court of the Civil Judge, Jorhat vide judgment dated 22.04.2008 dismissed the appeal and had affirmed the pleadings of the trial Court. Aggrieved thereby, the present appeal was preferred.

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This Court while admitting the appeal vide order dated 30.09.2008 had formulated the following substantial question of law:

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“4. Whether Exhibit-1 has been misread as deed of partition and consequently whether the learned court below is right in holding that the provisions of Section 22 of the Hindu Succession Act, 1956 are not applicable, the plaintiff being not a Class-I heir?”

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Shri Sahewalla, the learned Senior Counsel submits that the findings of the Appellate Court in affirming the conclusion and findings of the learned Trial Court in so far as the issue relating to the Deed date 22.08.1974 is concerned is not a correct finding and the Sale Deed could not have been treated as a Partition Deed. However, because of the error committed by the learned Court below, grave prejudice has been caused to him. He further contends that if the contention of the plaintiff that the Deed dated 22.08.1974 is construed to be an ordinary Memorandum of Understanding there would be a significant difference in so far as the findings of the other issues are concerned.

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On the other hand, Shri Agarwal, the learned Senior Counsel for the respondents while denying the aforesaid submissions has brought to the notice of this Court that the aforesaid MOU is prior in point of time that the Sale Deed executed in terms of the earlier decree dated 31.01.1966.

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The rival contention of the respective learned counsels have been duly considered and

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Page No.# 4/4

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the LCR which has been received are also perused.

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The said Sale Deed was executed on 12.01.1983 (Exhibit-3). Further if the contents of the Deed dated 22.08.1974 are seen (Exhibit-1), it would be clear that the same has to be construed as a Deed of Partition. The learned Trial Court while deciding the issue has come to the conclusion that Exhibit-1 Deed dated 22.08.1974 is a Partition Deed and the said finding has been upheld by the learned Appellate Court. As regards the substantial question of law framed in this appeal which is in connection with Issue No. 5, namely, preferential right over the suit property, the learned Trial Court has held that as per Section 22 of the Hindu Succession Act, 1956 a preferential right is conferred on a class-I heir when he wants to buy a property when the co-heir proposes to sale such property. The Trial Court had further held that this right is neither transferable nor inheritable and since the plaintiff was not a class-I heir in respect of the suit property, no preferential right accrued upon the plaintiff. While discussing the aforesaid issue, the appellate Court has held that since the Agreement dated 22.08.1974 is a Partition Deed which was prior in point of time, the applicability of Section 22 will not come into operation and in that view of the matter, perhaps the findings of the trial Court so far Issue No. 5 is concerned may not be a correct interpretation.

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Be that as it may, the decision on Issue No. 5 will have no major bearing in the ultimate result of the case inasmuch as the MOU dated 22.08.1974 has been held by both the Courts below as a Deed of Partition.

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In view of the above discussion, the substantial question of law framed in this appeal is answered by holding that the findings of the Trial Court on Issue No. 5 may not be a correct finding and it is held that only because of the fact that the MOU which is held to be a Deed of Partition, Section 22 of the Hindu Succession Act, 1956 will not have any applicability.

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In view of the above, no infirmity or irregularity is seen in the impugned judgment and decree and accordingly the present appeal is dismissed.

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Registry is directed to transmit back the LCR forthwith.

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JUDGE

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Comparing Assistant

Ganish Mahato v. Tarachand Soni

Case brief

What is this about?

What did the court decide?

Ganish Mahato v. Tarachand Soni

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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