Kokan Chander Mandal v. Badal Mondal And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** SAT/9/2023 Kokan Chander Mandal Vs.

Badal Mondal and others Mr. KMB Jayapal ... for the appellant November 17, 2023 [SR] Item No.2 1.

The concurrent finding of facts with regard to the maintainability of the partition suit has now been assailed in the second appeal. The second appeal can be admitted provided it involves substantial question of law. 2.

Briefly stated, one Santi Ram Mondal is the owner of the property in question. It appears that Santi Ram Mondal, during his life time, married for the second time after expiry of his first wife. He had transferred the property in favour of the children from the second wife. The appellant is the son from the first wife.

3.

During the life time of his father, namely Santi Ram Mondal, Kokan Chander Mondal filed a partition suit claiming 50% share in the property in question which his father was holding on the basis of the rehabilitation and colonization scheme of 1960 for the family members and by a reason of the provision of the said scheme notwithstanding any provision of law of inheritance, Santi Ram Mondal would be considered to be a co-owner along with his family which would include his wife and children.

4.

Mr. K. M. B. Jayapal has strenuously argued that both the courts on a misconstruction of the said scheme had arrived at a finding which is patently perverse on the ground that the second appeal is required to be admitted. 5.

We have not been able to find any provision of the scheme which overrides the personal law governing the Succession Act. The parties are governed by the Dayabhaga School of Law and not Mitakshara law. The concept of coparcenary is not applicable in the instant case. Moreover, as rightly observed by both the courts, the suit for partition is premature as Kokan Chander Mondal would have a claim to the share in the property only on the death of his father and not otherwise.

6.

Both the courts have taken into consideration the revenue records and other relevant documents to arrive at a finding that even otherwise the said scheme is not applicable to the acquisition of the property or a claim to ownership of the property by Santi Ram Mondal.

7.

The plaintiff has also failed to produce any documents to show that the property was allotted to Santi Ram Mondal under the scheme of 1960.

8.

On such consideration, we do not find any reason to interfere with the concurrent findings of the facts based on cogent evidence.

9.

At this stage, Mr. Jayapal submits that the plaintiff's father had died during the pendency of the first appeal and now that the succession has opened, he may be allowed to continue with the pending proceeding.

10.

It appears from the order of the first appellate court that Santi Ram Mondal handed over the property to the children of his second wife, who is claimed to be a concubine, by dint of a deed.

11.

The said deed was not challenged in the first appeal. While we dismiss the second appeal, at the admission stage, we observe that this order shall not prevent the appellant to pursue his remedies in accordance with law.

12.

The appeal being SAT/9/2023 is dismissed.

13.

Urgent photostat copy of this order, if applied for, be supplied to the parties upon compliance of usual formalities ( Soumen Sen, J. ) ( Siddhartha Roy Chowdhury, J. )