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NON-REPORTABLE  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO(s).     4110     OF     2006   

UMA SASHI DEVI (DEAD) THROUGH LRS.               Appellant (s)

                VERSUS

DIBAKAR BANERJEE AND OTHERS                       Respondent(s)

    JUDGMENT

1. It is, indeed, unfortunate that siblings are fighting for  

right of ownership over properties left behind by their  

mother, Smt. Mrinalini Devi.

2. Dispute with regard to properties described in Schedules  

A,C and D and B and E appended to the Plaint, between real  

sister, deceased Uma Shashi Devi and her brother  

Sudhangshu Kumar Banerjee, has come to this Court for  

deciding as to  whether  properties as mentioned  

hereinabove in the Schedules have fallen exclusively to  

the share of brother or part of it has fallen to the share  

of sister.  

    Facts shorn of unnecessary details are mentioned  

hereinbelow:

Original plaintiff – (sister) Uma Sashi Devi (since dead)

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filed a suit for declaration of a Title to the properties  

described in Schedule A, C and D and for partition of  

other properties described in schedule B and E, left  

behind by their mother Smt. Mrinalini Devi (against her  

real brother) Defendant Sudhangshu  (also dead).  During  

the pendency of the matter, as described hereinabove,  

sister and brother both have died but for the sake of  

convenience, they would be described as Plaintiff (sister)  

and Defendant (brother).  Even though original parties to  

the Suit are dead but no peace could be made with the  

legal representatives.  Original deceased parties are now  

being represented by their legal representatives.

3. Plaintiff filed a Title Suit No. 26 of 1973 in the 1st  

Court the Subordinate Judge, Hooghly, against Defendant,  

mentioning therein that all the disputed properties  

originally belonged to Smt. Mrinalini Devi, their mother.  

Thus, the Plaintiff would also have a share in the same.  

Smt Mrinalini Devi died on 5.5.1971 at Chandernagore in  

the District of Hooghly.  According to the Plaintiff,  

during her life time, she settled some of the properties  

described in Schedules A,C and D appended to the plaint,  

with the plaintiff by executing two registered Deeds of  

Settlement on 22.02.1961. Properties described in

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Schedules B and E remained as her personal properties. On  

her death, these properties were inherited jointly by  

plaintiff and defendant as her legal heirs.   According to  

plaintiff, after the death of her mother on 5.5.1971, she  

became absolute owner of properties shown in Schedule A,C  

and D but with regard to properties shown in Schedule B  

and E, she was entitled to claim 50 percent of the same  

along with her brother Sudhangshu, Defendant to the Suit.  

4. Since defendant refused partition of properties as  

demanded by plaintiff, she was constrained to file the  

aforesaid suit for declaration of her title to the  

properties described in schedule A, C and D and for  

partition of the other properties left behind by her  

mother.

5. Defendant  admitted that  mother Mrinalini Devi was the  

exclusive owner of the properties shown in Schedule  

A,B,C,D and E but contended that she had executed  a  

‘Will’  before the Notary Public at Chandernagore on  

19.9.1932 bequeathing properties to Defendant only.  By  

virtue of the said ‘Will’  executed in his favour by  

Mrinalini Devi, he has become absolute owner of the entire  

property that belonged to their mother.   Defendant

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further averred that mother had no right to execute Deeds  

of Settlement in favour of the plaintiff after execution  

of the ‘Will’  in favour of the Defendant.  He further  

alleged that in any case, the Deeds of Settlement were  

obtained by practising fraud, coercion and mis-

representation and thus, were not binding.  Their mother  

had become completely blind and   hard of hearing.  She  

had also lost her mental balance since 1956.   Looking to  

her mental and physical condition, it was not possible for  

her to understand the import of the Deeds of Settlement  

and without understanding the same, she had put her thumb  

impression.   Even though thumb impressions have been  

obtained on the Deeds, the same had been procured only by  

mis-representation or fraud.   Thus, the Deeds would not  

convey any right, title or interest to the Plaintiff.  

6. On the pleadings of the parties, Trial Court framed  

several issues.   Parties went to trial and led evidence  

to prove their respective cases.    In respect of the  

certified copies of the two Settlement Deeds executed in  

favour of plaintiff, marked as Exh. I and I A, the writer  

of those Deeds was examined in the Trial Court by the  

plaintiff. On appreciation of evidence available on  

record, the trial court dismissed the suit.

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7. Trial Court recorded a finding that at the time of  

execution of the ‘Will’, Indian Succession Act, 1925 for  

short “Succession Act” was not applicable in Chandernagore  

which was governed by French Laws as it was a part of  

French Colony. Therefore, after execution of the Will in  

favour of the Defendant, she had no right, title or  

interest to execute the Deeds of Agreement.    

8. Being aggrieved by the judgment and decree of the Trial  

Court, Plaintiff preferred an appeal under Section 96 of  

the C.P.C. before 1st Court of Additional District Judge,  

Hooghly  registered as Title Appeal No. 183 of 1981.  The  

lower appellate Court vide its judgment and decree dated  

25.09.1982 remanded it to Trial Court for disposal in  

terms of the directions in the said order.  This order of  

remand was challenged by the Defendant by filing an appeal  

in the High Court of Calcutta.   The Division Bench of the  

High Court of Calcutta allowed the appeal of the defendant  

and sent it to the lower Appellate Court to decide it on  

merits, in accordance with law.

9. The following directions were given by the Division Bench  

of the High Court, reproduced hereinbelow:   

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“It appears that the deeds were admitted in  evidence by the learned trial judge.   If the  appellate court thought that these deeds could not  be admitted in evidence on the fact of the  particular case it ought to have decided that  question in appeal and if that is decided, there  cannot be any further question for decision as to  the nature and character of the documents  themselves and if the documents have been properly  admitted in evidence, the documents were available  in the records and the appeal court is quite  competent to determine the nature and character of  the documents themselves.  The appellate court had  all the materials before it for determining the  nature and character of the documents.  Without  deciding that question, the appellate court was  wrong in remanding the matter back to the trial  court for decision on that point.  The question  whether these documents witnesses a testamentary  disposition is also not relevant as the plaintiff  herself never claimed it to be so.  In this view of  the matter, we find no justification for remanding  the suit back for trial according to the direction  given by the impugned order.

The appeal is accordingly allowed without any order  as to costs.   The impugned order is set aside, and  the appeal will go back to the appellate court  below which will decide the same in accordance with  law.  We make it clear that we have not entered  into the merits of the case of respective parties.  No formal decree need be drawn up.”

10.  In the light of the aforesaid directions, the  

Appellate Court was once again seized of the appeal filed  

by the plaintiff, but it proceeded to dismiss the same on  

merits.

11.  Thus, the plaintiff was constrained to file Second  

Appeal No. 178 of 1997 against the judgment and decree of

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Appellate Court, confirming the judgment and decree of  

Trial Court, before learned Single Judge of the High  

Court.  

12.  Plaintiff’s Second Appeal was admitted on the  

following substantial questions of law:

i. Whether the defendant is entitled to claim his  right, title and interest in the suit properties  unless a probate is granted of the Will (Ext.A) by  a court of competent jurisdiction. ii.  Whether the deeds of settlement (Exh. 1 and  1A) are valid in the eye of law or in other words  the plaintiff has been able to prove due execution  and registration of the same s as to create right,  title and interest in favour of the plaintiff in  respect of the properties mentioned therein.

13.  Learned Single Judge of the High Court vide impugned  

Judgment and decree dated 21.5.2004 dismissed the second  

appeal of the plaintiff.   Hence this appeal.

14. In the Second Appeal, High Court recorded a finding  

that plaintiff has not been able to make out a case for  

loss or destruction of original documents Exh. A and A1,  

Deeds of Settlement in her favour.   Thus, no case was  

made out for leading secondary evidence as the loss of the  

originals was not established.    In view of this,  

findings as recorded by the Appellate Court that  

Settlement Deeds Exh. 1 and 1A, have not been proved in

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accordance with law, was confirmed by High Court.  

15.  Consequently, it held that plaintiff is not entitled  

for any declaration of her right, title or interest with  

regard to the property shown in  Schedule A,C and D. Thus,  

substantial question of law No. (ii) as mentioned  

hereinabove was decided against the plaintiff.

16.  As regards question No. (i), it was held by learned  

Single Judge that indisputably, properties involved in the  

‘Will’  Exh. A were situated  within French Chandernagore  

and the said Will having been executed within  the said  

territory, testatrix  Smt. Mrinalini Devi had all rights  

of its disposition by ‘Will’  executed on 19.9.1932 in  

favour of the defendant.

17.  Referring to Section 213 of the Succession Act, it  

came to the conclusion that there was no need for the  

‘Will’ to be probated as it would fall within sub section  

2 of Section 213 of the said Act.

18.  Learned counsel for the Appellants submitted that  

Exh. A  and A1 were duly proved in accordance with law.  

Thus, properties shown in Schedules A, C and D would fall

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to the exclusive share of Plaintiff only.  As the original  

register containing the same were brought by PW – 2, who  

had proved that the certified copies filed thereof are the  

true and correct copies of Exh. A and A1 as per the  

register maintained by the Registrar.  It was also  

contended that admittedly testatrix  of the ‘Will’  dated  

19.9.1932 was an illiterate lady and therefore, as per  

French Civil Code, the ‘Will’ could have been proved by an  

affidavit, duly sworn by another witness mentioning  

therein that this is the copy of the ‘Will’ said to have  

been executed by testatrix as she was unable to sign.  It  

was also contended that when there is Division of estate  

amongst Class I heir, then Class I legal heir cannot be  

given more than half the portion in the estate of the  

deceased.   

19.  Learned Senior counsel Mr. Arvind Varma, appearing  

for the Plaintiff submitted that since Mrinalini Devi had  

executed the ‘Will’  in the year 1932, when Chandernagore  

was a French Colony, then the French Civil Code  and  

French laws alone would apply to the Will.   Irrespective  

of the date of death of the testatrix, which took place on  

5.5.1971, learned counsel for the appellant also submitted  

that Chandernagore Act 1954 as Chandernagore (Assimilation

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of Laws) Act, 1955 would be required to be considered in  

extenso in this appeal.

20.  On the other hand, learned Senior Counsel Mr.  

Bhaskar P. Gupta, assisted by Mr. Partha Sil, appearing  

for the Respondents, submitted that following proposition  

of law would be required to be addressed by this Court in  

this appeal.     

   “1) The validity of execution of the Will of 1932  will be judged by the law governing the execution of  Wills on the actual date of execution.  Such  execution was a concluded event, on the date of the  merger of the Chandernagore with India.   The instant  Will, being a Will made by public act, conforms to  all the requirements under the French Code.

    2) The validity and legality of the  disposition under the Will of 1932, will have to be  judged by the law prevailing and governing the  testatrix at the time of the death of the testatrix  i.e. 1971 when the Will spoke and not by the law  obtaining on the date of the execution of the Will.  This Will was not required to be probated under the  Indian Succession Act.

3) The French law as administered in the  colonies recognized Hindu Wills and uncodified  Hindu law as they were matters of personal law.

4)   The Deeds are not settlement in law as  settlement can only be made in presenti.  Further,  the foundation of leading secondary evidence not  laid,   the Deed Writer’s Evidence does not  establish the connection between Uma Sashi and the  Deed.”

21.  In the light of the aforesaid submissions advanced by

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learned senior counsel appearing for the parties, we have  

heard them at length and perused the records.  

22.  After giving our thoughtful consideration to the  

whole matter, we thought it appropriate to give a chance  

to parties to settle the matter amicably.  We are of the  

considered opinion that after all parties are closely  

related to each other.  Thus, it is a fit case to get it  

settled mutually instead of deciding it by this Court.  We  

accordingly requested the learned Senior Counsel appearing  

for the parties to explore the possibility of a  

settlement, but nothing concrete came out, even though  

several proposals and counter proposals were exchanged.

23.  We have examined the details of the proposals floated  

by Appellants in the light of various Schedules annexed to  

the Plaint showing details of the disputed properties and  

have worked out tentative market value thereof since  

Respondents were not ready and willing to part away with  

the properties and to give any thing out of it to the  

Appellants, except for meagre monetary amount worked out  

by them.  The amount offered by them was so little that we  

do not even feel proper to reflect it in the order.

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24.  We have, therefore, given our serious thought to the  

whole  matter and suggested learned senior counsel  

appearing for the Respondents that they should pay in all  

a sum of Rs.5,00,000/- (Rupees Five Lacs) to the  

Appellants, so that all disputes and litigation may come  

to an end.   

25.  One of the Respondents, namely Dibakar Banerjee, was  

also present in the Court. Learned senior counsel took  

instruction from him.  Initially, he was not ready and  

willing to pay the aforesaid amount on the ground that it  

is not possible for him to arrange this amount.  We then  

asked him to give proportionate land of the aforesaid  

value to the Appellants.  But this suggestion was also not  

acceptable.  Later Respondents agreed that they would pay  

the aforesaid amount of Rs.5,00,000/- (Rupees Five Lacs)  

in all to the Appellants, but it can only be paid in  

installments spreading over a period of 18 months.  

According to us, this was a reasonable suggestion given by  

the Respondents.  The Appellants agreed for this mode of  

payment.  We accordingly pass the following order.

26.  Respondents are directed to pay an initial amount of  

Rs.1,00,000/- to the Appellants on or before 14th of

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August, 2012.  Remaining amount of Rs.4,00,000/- would be  

paid by the Respondents in five quarterly installments of  

Rs.80,000/- each, until the balance is paid.  In case  

Respondents fail to make the aforesaid payment of  

Rs.5,00,000/- in total period of 18 months from today,  

then they would also be liable to pay interest on delayed  

payment at the rate of 9 per cent per annum from the date  

the payments have become due.  

27.  The interim order passed by this Court on 8.9.2006  

hereby stands vacated.  However, till the aforesaid  

payment of Rs.5,00,000/- is not made, property shown in  

Schedule A of the Plaint shall not be disposed of or  

encumbered in any manner, and no third party rights would  

be created thereon.  

28.  With the aforesaid directions, admittedly all  

disputes between the parties have come to an end and the  

appellants would not claim any right, title and interest  

in the Schedule properties shown in Schedules A, B, C, D  

and E appended to the Plaint.

29.  We, indeed, highly appreciate the efforts made by  

learned Senior Counsel Mr. Arvind Verma appearing with Mr.

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Vikramjeet, Advocate, for the Appellants and learned  

Senior Counsel Mr. Bhaskar P. Gupta appearing with Mr.  

Partha Sil, Advocate, for the Respondents. But for their  

persuasion and perseverance with their respective parties,  

it would not have been possible to arrive at this amicable  

settlement.  

30.  This appeal accordingly stands disposed of with a  

direction to the Registry to send back Original Record  

forthwith.  Parties to bear their respective costs.

................................J. (DEEPAK VERMA)                     

................................J. (K.S. RADHAKRISHNAN)               

NEW DELHI, JULY 11, 2012.