THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
DATED : 9th August, 2021
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SINGLE BENCH: THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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RFA No.02 of 2019
Appellant : Ram Naresh Giri
versus
Respondents : Krishnawati Devi and Others
Appeal under Order XLI, Rules 1 and 2
of the Code of Civil Procedure, 1908
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Appearance
Mr. Jorgay Namka, Legal Aid Counsel for the Appellant.
Mr. Udai P. Sharma, Legal Aid Counsel for the Respondents.
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JUDGMENT
Meenakshi Madan Rai, J.
1. 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.02 of 2019 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.02 of 2019 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.
(ii) 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.
3. 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 Gomti (betel shop) RFA No.02 of 2019 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 incurred financial expenditure in the
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
dismissal.
4. The submissions advanced by Learned Counsel for the
parties were heard at length and duly considered. The pleadings, RFA No.02 of 2019 5 Ram Naresh Giri vs. Krishnawati Devi & Ors.
all evidence, documents on record and the impugned Judgment
have also been perused.
5. 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 in respect of proportionate share i.e. 1/3 on the first floor (Shop rooms) 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 account of the 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..........................."
6. The Respondents denied and disputed the claims of the
Appellant and claimed that the Schedule "A" property being self- RFA No.02 of 2019 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.
7. The Learned Trial Court settled the following issues for
determination:
"(1) Whether the suit is maintainable? (OPP) (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 the Defendants)? (OPP) (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? (OPP) (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)? (OPD)"
8. The Appellant filed his Evidence-on-Affidavit as PW1
and that of his seven witnesses viz. PW2 Parsuram Giri, PW3
Prabhunath Giri, PW4 Dhan Kumar Kami, PW5 Dawa Tamang, PW6
Ram Shankar, PW7 Sambhu Giri and PW8 Basisth Singh. The
Respondents filed the Evidence-on-Affidavit of Respondent No.3 as
DW1 and their witnesses DW2 Gayatri Devi, DW3 Nanda Kishore
Prasad and DW4 Basanti Giri.
9.(i) 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 (Exhibit 4 to
Exhibit 18) 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.02 of 2019 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.02 of 2019 8
Ram Naresh Giri vs. Krishnawati Devi & Ors.
(ii) 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.
10. 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 Schedule "A" building by investing financially to the exclusion of his father and brothers?
11. 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.02 of 2019 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 Another 1, 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 than the 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 in regard to the 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 of 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 says:
"The grandson has a right of prohibition if his unseparated father is making a donation or sale of effects inherited from the 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.02 of 2019 10 Ram Naresh Giri vs. Krishnawati Devi & Ors.
..........................................................The question came pointedly for consideration before the Judicial Committee in the case of Rao Balwant v. Rani Kishori [25 IA 54] and 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 embodied rules of positive law. The latter 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 without the concurrence of his sons [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 [Vide Sital v. Madho, ILR 1 All 394] ; and he can make even an unequal distribution amongst his heirs [Vide Bawa v. Rajah, 10 WR 287]. ..................................................................................................
11. In view of the settled law that a Mitakshara father has right of disposition over his self-acquired property to which no exception can be taken by his male descendants, it is in our opinion not possible to hold that such property bequeathed or gifted to a son must necessarily, and under all circumstances, rank as ancestral property in the hands of the donee in which his sons would acquire co-ordinate interest. .................................The other ground put forward is that the definition of "self- acquisition" as given by Mitakshara does not and cannot comprehend a gift of this character and consequently such gift cannot but be partible property as between the donee and his sons."
(Emphasis supplied)
12. More recently in Govindbhai Chhotabhai Patel and Others
vs. Patel Ramanbhai Mathurbhai2, the Hon‟ble Supreme Court,
observed inter alia thus;
"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 (for short "the Evidence Act"). It is also held that the suit property is not ancestral property. The property was purchased by Ashabhai Patel, father of the donor and it is by virtue of will executed by Ashabhai Patel, property came to be owned by the donor in the year 1952-1953. The High Court, thus, held that the donor was competent to execute the gift deed dated
2 (2020) 16 SCC 255 RFA No.02 of 2019 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:
"........................................................................
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 Hindu law, as it stands today, clearly 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 in his individual capacity and not as 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.
13.(i) 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.02 of 2019 12
Ram Naresh Giri vs. Krishnawati Devi & Ors.
(ii) PW3 runs a stationery business and claimed to have
loaned Rs.45,208/- (Rupees forty five thousand, two hundred and
eight) 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/- (Rupees eight thousand)
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.02 of 2019 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.02 of 2019 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.
14. 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
business.
15. 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.
16. Appeal fails and is dismissed.
17. RFA disposed of accordingly, as also I.A. No.01 of
2019.
18. No order as to costs.
19. Copy of the Judgment be sent to the Learned Trial
Court for information, along with its records.
( Meenakshi Madan Rai ) Judge 09.08.2021
ml Approved for reporting : Yes
