Shri Anjan Kumar Pal vs Shri Ranjan Kumar Pal & Ors
2021 Latest Caselaw 1266 Tri

                     HIGH COURT OF TRIPURA
                           AGARTALA

                        RFA No. 15 of 2017

Shri Anjan Kumar Pal
                                                      ..........Appellant(s)
                               Versus

Shri Ranjan Kumar Pal & Ors.
                                                     ..........Respondent(s)

For Appellant(s) : Mr. S.M. Chakraborty, Sr. Adv.

Mr. H.K. Bhowmik, Adv.

For Respondent(s) : Mr. H. Laskar, Adv.

HON'BLE MR. JUSTICE S. TALAPATRA HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

Order

16/12/2021

Heard Mr. S.M. Chakraborty, learned senior counsel

assisted by Mr. H.K. Bhowmik, learned counsel appearing for the

appellant as well as Mr. H. Laskar, learned counsel appearing for the

respondents.

This appeal under section 96 of the CPC arises from the

judgment dated 21.03.2017 passed by the Civil Judge (Senior

Division), Court No.2, Agartala, West Tripura in T.S.(P) 6 of 2014. By

the said judgment, the suit instituted by the appellant has been

dismissed. While dismissing the suit, the Civil Judge has recorded the

following finding:

"7. * * * * The unregistered WILL, dated 02-10-2002 (exbt. A) is admissible as per Sec. 67 and 68 of the Indian Evidence Act, 1872 as the scribe (D.W.2) who had written the same wholly has proved to be his

handwriting during his examination-in-chief. Further D.Ws.1, 3 and 4 being the attesting witnesses also proved its execution. Hence, there is no impediment to say that the unregistered WILL (exbt.A) is proved as per Law of Evidence.

On perusal of the schedule-A of the WILL (exbt.A) it reveals that the land measuring 40 satak is the present suit land for partition, but in 6th line of page no.3 of that WILL the land measuring 40 satak was bequeathed in favour of present defendant nos.2 to 5 excluding the present plaintiff. Hence, entitlement of the plaintiff over the suit land is totally excluded by that unregistered WILL (exbt.A) which is remain valid as per law until and unless it is cancelled by any court of law having its jurisdiction. In this suit plaintiff did not challenge the unregistered WILL (exbt.A) in any manner. So, the suit land is the joint properties of defendant nos.2 to 5 and plaintiff has no quantum of share over the suit land. Also plaintiff is not entitled to get any decree as prayed for as well as no other relief. * * * *"

Mr. S.M. Chakraborty, learned senior counsel appearing

for the appellant in his usual fairness has submitted that the

appellant does not challenge the WILL in any manner and even the

appellant does not question the execution of the WILL, executed by

Nani Gopal Pal, predecessor of the parties, so far the suit property is

concerned.

By dint of the said WILL, the entire suit property was

bequeathed in favour of the defendants No.2 to 5 and no bequest

was made in favour of the plaintiff.

Having situated thus, we fail to persuade ourselves to

interfere with the impugned judgment and the consequential decree

inasmuch as, when the plaintiff does not have any right over the suit

property as he has been excluded by the said WILL, he cannot claim

the partition of the suit property. Consequently, this appeal is bound

to fail. Pre-requisite for institution of the suit for partition is that the

plaintiff must have the shared ownership of the suit property. Thus,

the above finding of the Civil Judge is affirmed by us.

Accordingly, the same is dismissed. Prepare the decree

accordingly.

Send down the LCR thereafter.

            JUDGE                                         JUDGE




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