M/S. Taraknath
& Anr Vs. Sushil Chandra Dey & Ors [1996] INSC 506 (8 April 1996)
Ramaswamy,
K.Ramaswamy, K.G.B. Pattanaik (J)
CITATION:
1996 SCC (4) 697 JT 1996 (5) 272 1996 SCALE (4)332
ACT:
HEAD NOTE:
O R D
E R
Leave
granted.
We
have heard learned counsel on both sides. This appeal by special leave arises
from the judgment and order dated 24.7.1995 made in L.P.A. No.10/93 of the High
Court of Guwahati. The admitted facts are that the property originally belonged
to one Syed Md. Mahibullah After his demise, the property passed on to his
widow five daughters and five sons. His widow died in 1971. Subsequently, it
would appear that the sisters have relinquished their rights in the properties
in favour of their five brothers. It is the case of the appellant that at a
family settlement among the brothers on December 6, 1977, the suit property was allotted to Syed
Baitul Alam who had sold the said property under registered sale deed to the
appellant on August 6,
1979. He laid the suit
for declaration of his title and for ejectment of the respondent. The trial
Court decreed the suit. On first appeal, the learned single Judge confirmed the
decree. The Division Bench in the above L.P.A. reversed the decree and
dismissed the suit. The Division Bench came to the conclusion that
relinquishment of the property would operate as a gift by the sisters and
delivery of possession is a pre-condition. Since possession was not delivered
to the brothers, the gift by the sisters is not valid in law.
As
regards the family settlement between the brothers, the Division Bench has held
that since there is no dispute pending or prospective, between the brothers,
the family settlement is not valid in law and, therefore, the appellants cannot
derive any title from one of the brothers to whom the property had fallen to
his share through the said settlement. Consequently, the sale to the appellants
on August 6, 1979 is not also valid. On that premise,
the suit came to be dismissed.
It is
contended by Mr. P.K. Goswami, learned Senior counsel appearing for the
respondents, that from the evidence it is clear even assuming that the dispute
between the brothers has not been properly existing, since one of the brothers
who is admittedly staying in London did not participate to settle the dispute and
even in the plaint his address was of Guwahati while he was staying in London,
it is not a bona fide settlement. It is also contended that the sisters having
not delivered possession of the property to the brothers under the personal
law, the gift is not complete. Therefore, the appellant cannot get any valid
title. Since the respondent have not acknowledged the title of the appellants,
there is no estoppel under section 116 of the Indian Evidence Act. Since the
appellant get derived no title it would be open to the respondent to assail the
validity of the sale. The High Court, therefore, was right in dismissing the
suit.
Having
regard to the contention the question arises:
whether
the High Court was correct in law in upsetting the judgment of the learned
single Judge and the trial Court in dismissing the suit? It is true that there
is no actual delivery of the possession pursuant to the gift said to have been
made by five sisters in favour or five brothers. The property admittedly
belonged to father Syed Md. Mahibullah who died in 1954. Thereby all the
brothers and sisters become owners to the extent of their shares they had
succeeded to the property. Thus all of them are co-owners.
It
would be open to the sisters to relinquish their right by way of gift, even
oral, which is valid in personal law.
Since
the tenant has been in occupation, it would be constructive delivery of the
possession. Delivery of the physical possession to the brothers, in the
circumstances, is not warranted. As regards the family settlement of the
brothers, it would open to the brothers to resolve the prospective dispute by
way of family settlement. The brothers having agreed for the settlement, though
they have been impleaded as party-respondents to the suit, they have not
challenged the family settlement nor have they contested the validity thereof.
It is not necessary, in the circumstances, that all the brothers be present at
the settlement. One of the brothers living in London can authorize his other brothers to settle the dispute and
he was a consenting party to it. Under those circumstances, we are of the view
that the brothers obviously had a settlement pursuant to which the demised
property has been allotted to the share of Syed Baitul Alam who had sold the
property to the appellant under the sale deed dated August 6, 1979. The sale deed is a registered conveyance for valid
consideration. Under those circumstances, by operation of section 17 of the
Registration Act, the appellant gets valid title to the property. The
pre-existing right, title and interest in the property of Syed Baitul Alam and
his brothers stood extinguished by operation of the law.
Thereby,
the appellants get valid title to the property.
Since
the respondent was continuing as a tenant, obviously, he is bound by the title
since the suit has been laid for eviction of the respondent and decree for
eviction was rightly granted.
The
appeal is accordingly allowed. The order of the Division Bench is set aside and
the order of the learned single Judge stands restored. Six months time from
today is granted to the respondents to vacate the premises on filing usual
undertaking within four weeks from today. No costs.
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