Page No.# 1/14 vs On The Death Of Late Samaresh Banerjee ...
2025 Latest Caselaw 456 Gua

Gauhati High Court

Page No.# 1/14 vs On The Death Of Late Samaresh Banerjee ... on 13 May, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                              Page No.# 1/14

GAHC010004092008




                                                         2025:GAU-AS:6413

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

                             Case No. : RSA/134/2008

         ON THE DEATH OF BHUBAN MOHAN DAS, HIS LEGAL HEIRS SMT.
         LAKSHMI PRABHA DAS AND ORS
         W/O LATE BHUBAN MOHAN DAS, R/O VILL. SATPUR, PO. LOHARGHAT,
         DIST. KAMRUP (R), ASSAM.

         2: DEEPAK DAS
          R/O VILL- SATPUR
          P.O.-LOHARGHAT
          DIST-KAMRUP (R)
         ASSAM

         3: RANJAN KR. DAS
          R/O VILL- SATPUR
          P.O.-LOHARGHAT
          DIST-KAMRUP (R)
         ASSAM

         4: ASHOK KUMAR DAS
          R/O VILL- SATPUR
          P.O.-LOHARGHAT
          DIST-KAMRUP (R)
         ASSAM

         5: SMT. JEUTI PRABHA DAS
          D/O LATE BHUBAN MOHAN DAS
          R/O JARANUPATH
          RGB ROAD
          NEAR ZOO
          P.O.-DISPUR
          GHY-05

         6: SMT. DEEPALI SWUD
          D/O LATE BHUBAN MOHAN DAS
          R/O HOUSING COLONY
                                                     Page No.# 2/14

LIC BLOCK-A
CHANDMARI COLONY

7: SMT. MANJULA KALITA
 D/O LATE BHUBAN MOHAN DAS
 R/O POULTRY FARM COMPLEX
 GOPINATH NAGAR
 BIRUBARI
 GUWAHATI
ASSA

VERSUS

ON THE DEATH OF LATE SAMARESH BANERJEE HIS LEGAL HEIRS
NAMELY-

1.1:SMTI.BULU BANERJEE
 W/O LATE SAMARESH BANERJEE
R/O.DHUPGURI
P.O. AND P.S.- DHUPGURI
 DIST.-JOLPHAIGURI (WEST BENGAL) PIN-735210.

1.2:SRI JOTIRMOY BANERJEE
 S/O.LATE SAMARESH BANERJEE
R/O. DHUPGURI
 P.O. AND P.S.- DHUPGURI
 DIST.-JOLPHAIGURI (WEST BENGAL) PIN-735210.

1.3:SMT. JADOBI CHAKRABORTY
 D/O. LATE SAMARESH BANERJEE
W/O. SUNNAR CHAKRABORTY
 R/O. JOTESWAR FALAKATA
ALIPURDUAR
 P.O. AND P.S.-ALIPURDUAR
 DIST. ALIPURDUAR (WEST BENGAL) PIN-735216.

2:SABITA CHATTERJEE

D/O LT. BINOY KRISHNA BANERJEE
W/O LT. BISWAJIT CHATTERJEE
R/O GAURI SARMAH COLONY
FATASIL
GUWAHATI-9

3:SANDHYA MUKHERJEE

D/O LT. BINOY KRISHNA BANERJEE
W/O B. MUKHERJEE
                                                                  Page No.# 3/14

R/O GAURI SARMAH COLONY
FATASIL
GUWAHATI-9

4.1:STRUCK OFF
 STRUCK OFF VIDE HON'BLE COURT'S ORDER DATED 09.05.2024

4.2:STRUCK OFF
VIDE HON'BLE COURT'S ORDER DATED 09.05.2024

4.3:STRUCK OFF
VIDE HON'BLE COURT'S ORDER DATED 09.05.2024

4.4:STRUCK OFF
VIDE HON'BLE COURT'S ORDER DATED 09.05.2024

4.5:STRUCK OFF
VIDE HON'BLE COURT'S ORDER DATED 09.05.2024

4.6:STRUCK OFF
VIDE HON'BLE COURT'S ORDER DATED 09.05.2024

4.7:STRUCK OFF
VIDE HON'BLE COURT'S ORDER DATED 09.05.2024

4.8:STRUCK OFF
VIDE HON'BLE COURT'S ORDER DATED 09.05.202




      For the Appellant(s)     : Mr. D. Choudhury, Advocate

      For the Respondent(s)    : Mrs. S. Chakraborty, Advocate

                               : Ms. D. Hazarika, Advocate



            Date of Hearing     : 13.05.2025

            Date of Judgment    : 13.05.2025
                                                                                  Page No.# 4/14

                                  BEFORE
                   HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                            JUDGMENT AND ORDER (ORAL)

Heard Mr. D. Choudhury, the learned counsel appearing on behalf of the appellants and Ms. S. Chakraborty, the learned counsel appearing on behalf of the respondent Nos. 1.1, 1.2 and 1.3.

2. This is an appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short 'the Code') challenging the judgment and order dated 29.03.2008 passed by the learned Civil Judge (Senior Division) No.1, Kamrup at Guwahati (for short 'the learned First Apellate Court) in Title Appeal No.76/2001 whereby the judgment and decree dated 21.07.2001 passed by the learned Civil Judge (Junior Division) No.1, Guwahati (for short 'the learned Trial Court) in Title Suit No.402/1994 was set aside and quashed.

3. It is seen from the records that the Coordinate Bench of this Court vide an order dated 03.12.2008 formulated two substantial questions of law. Subsequently, vide an order dated 09.05.2024, this Court formulated another substantial question of law. The three substantial questions of law so formulated are reproduced herein under:

"1. Whether the judgment and decree passed by the learned lower appellate court is illegal for not considering the provision of section 20 of the Specific Relief Act, 1963?

2. Whether the learned lower appellate court committed illegality in misconstruing the provision of Section 60 of the Transfer of Property Act regarding mortgage of immovable property?

Page No.# 5/14

3. Whether the learned First Appellate Court was justified in reversing the judgment and decree passed by the learned Trial Court without considering Section 13 of the Specific Relief Act, 1963 inasmuch as Exhibit-2 was duly proved as has been held by the Courts below?"

4. For the purpose of ascertaining as to whether the said substantial questions of law are duly involved in the instant appeal, this Court finds it relevant to take note of the facts which led to the filing of the instant appeal.

5. For the sake of convenience, the parties herein are referred to in the same status as they stood before the learned Trial Court.

6. One Shri Bhuban Mohan Das (since deceased) as plaintiff had instituted the suit being Title Suit No.402/1994 against the defendants who were the legal representatives of Late Binoy Krishna Banerjee. The case of the plaintiff herein was that Late Binoy Krishna Banerjee who was the owner and in exclusive possession of a plot of land admeasuring 4 Bighas 1 Kathas 11 Lechas covered by Dag No.31 of K.P. Patta No.125 of village Sutpur, Mouza Barduar, the land most specifically described in Schedule-A to the plaint, on account of urgent need of money had taken a loan of Rs.1500/- from the proforma defendant No.4 and in that regard had executed a registered deed of mortgage bearing Deed No.1972 dated 04.02.1969.

7. It was the case of the plaintiff that at the time of execution of the said registered deed of mortgage, the possession of the land described in Schedule-A to the plaint was handed over to the proforma defendant No.4. It was the further case of the plaintiff that in terms with the mortgage deed entered into, the said Late Binoy Krishna Banerjee was to repay the amount of loan within three years from the date of execution of the mortgage deed Page No.# 6/14

along with interest along at the rate of 12.5% per annum to the proforma defendant and if the said Binoy Krishna Bannerjee fail to repay the said amount within the stipulated time, it will remain mortgaged with the proforma defendant No.4. It was also a stipulation that the proforma defendant No.4 would deduct Rs.6/- from the income of the mortgage property every year. It was the further case of the plaintiff that Late Binoy Krishna Banerjee failed to repay the amount upto 12 years since the date of execution of the mortgage deed and as such, he entered into an oral agreement with the plaintiff to sell the land described in Schedule-B which is a part of the Schedule-A land for consideration of Rs.5000/-. In terms of the oral agreement, the plaintiff was required to pay Rs.5000/- as the price for the Schedule-B land before execution of the sale deed and the plaintiff was to pay the loan amount with interest due to proforma defendant No.4 on behalf of Late Binoy Krishna Banerjee and get the mortgage released from the proforma defendant No.4 and receive the delivery of possession of the land from him by paying Rs.2178/- which would be the total consideration.

8. It is the further case of the plaintiff that on 21.04.1981, the amount of Rs.2178/- was paid by the plaintiff to the proforma defendant No.4 and the proforma defendant No.4 had delivered the possession to the plaintiff of the Schedule-B land by putting an endorsement on the body of the registered deed on 21.04.1981. It was the further case of the plaintiff that the plaintiff had paid Rs.2822/- to Late Binoy Krishna Banerjee sometime in the year 1981 and thereupon requested, Late Binoy Krishna Banerjee to execute the deed of sale. It is the further case of the plaintiff that the plaintiff on various occasions requested Late Binoy Krishna Banerjee to execute the deed of sale. But he did not execute the deed of sale and in the year 1989, he Page No.# 7/14

expired. Be that as it may, it is the further case of the plaintiff that defendant No.1 who is the son of Late Binoy Krishna Banerjee had executed a document on 11.12.1981, admitting and acknowledging the receipt of the consideration amount and admitting the delivery of possession of the land to the plaintiff with a promise to execute the sale deed. Even after the death of Late Binoy Krishna Banerjee as the defendant No.1 did not execute the sale deed, the plaintiff filed a suit seeking a decree directing the defendant Nos. 1, 2 and 3 to execute the registered deed of sale in respect to the Schedule- B land in favour of the plaintiff by accepting the price of the stamp with a specified time and if the defendant Nos. 1, 2 and 3 fail to execute the deed of sale after the passing of the decree, the Court should execute the decree in terms with the provisions of Order XXI Rule 34 of the Code.

9. In the said suit, the defendant No.1 filed his written statement wherein various pleas were taken as regards the non-maintainability of the suit. It was the specific case of the defendant that the father of the defendant No.1 took a loan of Rs.1500/- and mortgaged 4 Bighas of land to the proforma defendant No.4 by a registered mortgage deed and in the said mortgage deed, the conditions were duly described.

10. It was further mentioned that as per the mortgage deed, it was agreed that in return of the interest @ Rs.12.50% per annum of the total Rs.1500/-, a plot of land admeasuring 4 Bighas would be possessed and cultivated by the proforma defendant No.4 and for that, the possession is mortgaged by deducting Rs.6/- per annum from the principal of Rs.1500/-. It was further mentioned that apart from the deduction, on payment of the rest amount, the executants, would be able to get back the possession. It was also Page No.# 8/14

mentioned that on expiry of the term, if the land is not released, the possession will be continued as per the mortgage deed. The defendant No.1 denied any oral agreement entered into by and between the plaintiff and Late Binoy Krishna Banerjee and further stated that in reality, without the expiry of the limit of mortgage deed, the fact of executing such agreement was baseless. It was further stated that a registered deed cannot be nullified in the manner stated by the plaintiff. It was denied that the plaintiff had given Rs.2174/- to the defendant No.4 and further asserted that the plaintiff had no authority to give money to the proforma defendant No.4 and similarly the proforma defendant No.4 had also no right to give the possession back to the plaintiff and if such possession was handed over, it was contrary to law. It was also mentioned that when the mortgage was created by way of a registered document, the redemption to the said mortgage has to be done by executing another registered document on full payment of the money by the person concerned.

11. On the aspect pertaining to the document dated 11.12.1981, it was categorically stated that the plaintiff had fraudulently manufactured the false document. It was further stated that as there was no oral agreement entered into or any agreement which was entered into by and between the plaintiff and the defendant or his predecessors in interest, the question of the plaintiff asking the defendant to execute the deed of sale did not arise.

12. From the records, it reveals that the learned Trial Court framed as many as 4 (four) issues which are reproduced herein under:

"1) Whether the suit is barred by limitation?

2) Whether there is any contract between the plaintiff and the father of Page No.# 9/14

the defendant No.1, 2 and 3?

3) Whether the plaintiff is ready to execute his part and the defendant No.1, 2 and 3 are neglecting for executing the deed in favour of the plaintiff?

4) To what relief the plaintiff is entitled?"

13. On behalf of the plaintiff, two witnesses were examined and certain documents were exhibited. On behalf of the defendants, the plaintiff witnesses were cross-examined, but there was no evidence adduced. The learned Trial Court vide a judgment and decree dated 21.07.2001 decreed the suit in favour of the plaintiff. It is very relevant to take note of that while deciding the Issue No.1 which pertained to as to whether the suit was barred by limitation, the learned Trial Court observed that though the defendant had averred in the written statement that the suit is barred by limitation, but as the burden lies upon the defendant to substantiate the averments, the said issue was decided in favour of the plaintiff. The learned Trial Court observed that the plaintiff having requested the defendant repeatedly to execute the sale deed, but the defendant No.1 instead of executing the sale deed mutated his name in the chitha which was subsequently cancelled by the Circle Officer, Polashbari vide an order dated 24.01.1994, the learned Trial Court therefore opined that the conduct of the defendant No.1 therefore appeared to be refusal of the performance of the contract and in terms of the second part of Article 54 of the Schedule to the Limitation Act, 1963 (for short 'the Act of 1963'), the suit was instituted within the period of limitation.

14. In respect to the issue pertaining as to whether there was a contract Page No.# 10/14

between the plaintiff and the father of the defendant Nos. 1, 2 and 3, which was Issue No.2, the learned Trial Court observed that from the evidence on record as well as the oral evidence, it was crystal clear that there was a contract between the father of the defendant Nos. 1, 2 and 3 and the defendant No.1 and the plaintiff for execution of the sale deed in respect to the suit land.

15. On the issue pertaining to as to whether the plaintiff was ready to execute his part and the defendant Nos. 1, 2 and 3 were neglecting for executing the deed in favour of the plaintiff, which is Issue No.3, the learned Trial Court observed in the affirmative in favour of the plaintiff and accordingly the Issue No.4 was decided in favour of the plaintiff.

16. Being aggrieved, the defendant No.1 preferred an appeal before the Court of the learned Civil Judge (Senior Division) No.1, Kamrup at Guwahati which was registered as Title Appeal No.76/2001. The learned First Appellate Court reversed the findings of the learned Trial Court and came to an opinion that the redemption of the mortgage was not permissible at the instance of the plaintiff. The learned First Appellate Court opined that the proforma defendant No.4 after getting the loan amount, relinquished his claim over the mortgage property and delivered the possession in favour of the plaintiff without the consent of the mortgagor and as such the mortgagor's right of redemption still was subsisting inasmuch as the right to redemption would effectively extinguished either by the mortgagor or by a proper decree of the competent Court.

17. The learned First Appellate Court further observed that in terms with Section 6(a) of the Transfer of Property Act, 1882, the chance of a heir Page No.# 11/14

apparent succeeding to an estate cannot be transferred and as such held that Exhibit-2 was not enforceable in law inasmuch as the defendant No.1 did not have right over the said suit property as on 11.12.1981. On the question of limitation, the learned First Appellate Court observed that as a suit land was still under mortgage and the right to redeem is subsisting and there was no agreement for sale of the suit land between the plaintiff and the defendant. Under such circumstances, the question of limitation and part performance of the contract by the defendant did not arise. Being aggrieved, the present appeal has been filed.

18. In the backdrop of the above, this Court duly heard the learned counsels appearing on behalf of the parties and also perused the materials on record.

19. Now let this Court take into account as to whether the substantial questions of law so formulated are involved in the instant appeal. The first substantial question of law so formulated is as to whether the judgment that decree passed by the learned First Appellate Court is illegal for not considering the provision of Section 20 of the Act of 1963. It is relevant to take note that from the facts so narrated herein above, the pleadings of the parties, the issues so framed and the findings so arrived at by the Courts below, there is no foundational fact on the basis of which this substantial question of law arises at all. Accordingly, the first substantial question of law so formulated is not involved in the instant appeal.

20. The second substantial question of law pertains to as to whether the learned First Appellate Court committed illegality in misconstruing the provisions of Section 60 of the Transfer Property Act, 1882 regarding the Page No.# 12/14

mortgage of the immovable property. This Court had duly taken note of the judgment of the learned First Appellate Court. From the materials on record, it is seen that though there was a registered agreement of mortgage by and between Late Binoy Krishna Banerjee and the proforma defendant No.4 but the mortgage was sought to be redeemed by the plaintiff. Therefore the right to redemption of Late Binoy Krishna Banerjee continued even after his death in favour of his legal heirs. The learned First Appellate Court in the opinion of this Court have therefore correctly dealt with Section 60 of the Transfer of Property Act, 1882 and in coming to the finding that there was no redemption of the mortgage by the plaintiff on the basis of the proforma defendant No.4 handing over the possession and accepting the amount as there was no consent of the mortgagor. Further to that, being a finding of fact, this Court cannot interfere. Consequently, the second substantial question so formulated is not involved in the instant appeal.

21. The third substantial question of law pertains to as to whether Section 13 of the Act of 1963 ought to have been taken into consideration by the learned First Appellate Court as Exhibit-2 was duly proved. This Court has duly taken note of the contents of Exhibit-2. From the very contents of the said exhibit, it is not stipulated that the defendant No.1 would execute the deed of sale. What has been stated therein is that the defendant No.1 on behalf of his father duly acknowledged that his father entered into an agreement to sell the land but for reasons could not register the sale deed. It is also very apposite herein to take note of that Exhibit-2 is dated 11.12.1981. This was executed during the time when the father of the defendant No.1 was alive. It is also an admitted case that the father of the defendant No.1 had the right over the Schedule-B land till he expired in the Page No.# 13/14

year 1989.

22. At this stage, this Court finds it very relevant to take note of Section 13 of the Act of 1963 which stipulates that when a person contracts to sell or let certain immovable property having no title or only an imperfect title, the purchaser or the lessee, subject to other provisions of Chapter-II of the Act of 1963 has a right to compel the vendor after he acquires an interest in the property to make good the contract out of such interest. Taking into account that the defendant No.1 did not enter into any agreement for sale that he would execute a sale deed on his behalf in respect to the suit land, the question of application of Section 13 of the Act of 1963 does not arise.

23. Apart from the above, this Court finds it very pertinent to take note of that it is the very case of the plaintiff that in the year 1981, there was an oral agreement for execution of the sale deed in respect to the Schedule-B land and it is also the case of the plaintiff that in the year 1981 itself, the plaintiff had paid the remaining amount to the father of the defendants. Article 54 stipulates the period of limitation for a suit for specific performance to be three years from the date fixed for performance and if no such date is fixed when the plaintiff has notice that the performance is refused. The defendant No.1 had denied that there was any oral agreement or even the document being Exhibit-2. A perusal of the plaint do not disclose as to whether there was any time fixed for execution of the deed of sale.

24. Be that as it may, it is seen from a perusal of the very plaint that there was an oral agreement in the year 1981 as per the plaintiff, which was subsequently endorsed vide Exhibit-2 on 11.12.1981. The plaintiff himself states in his plaint that on various occasions he had approached Late Binoy Page No.# 14/14

Krishna Banerjee for execution of the sale deed but that was not done. After the oral agreement in the year 1981, Late Binoy Krishna Banerjee expired in the year 1989 and thereupon even after the defendant No.1 who became one of the co-sharers in respect to the suit land, the suit was filed in the year 1994. There is not a single mention as to when there was a refusal.

25. It is very relevant at this stage to take note of the provision of Order VII Rule 6 of the Code which mandates that there is a requirement to state in the plaint as to how the suit is within the period of limitation. There is no mention to that effect in the plaint and the plaintiff having waited for a period of more than 13 years for institution of the suit, in the opinion of this Court, the suit was also barred by limitation which the learned Courts did not take into consideration.

26. Accordingly, this Court does not find any merit in the instant appeal for which the appeal stands dismissed with cost quantified at Rs.11,000/-. In addition to that, the defendants shall be entitled to costs throughout the proceedings.

27. The Registry is forthwith directed to return the LCR to the learned Court below.

JUDGE

Comparing Assistant