The Calcutta High Court has held that if the parties with their eyes wide open had accepted a state of things to be correct and should exist and continue to exist and thereby inducing a belief in others as to its permanence then their successor cannot turn around, upend and challenge any right that may have accrued to the other party by reason of such non-denial.

Finding that all the parties have acted on the basis of the final decree of 1931 and deed of gift of 1943 which is now attempted to be overturned by the grandchildren of Biman, the Division Bench of Justice Soumen Sen and Justice Uday Kumar observed that once Biman and Bilas have not challenged the deed of gift and have conducted themselves in a manner which gives a clear impression that they have accepted the male line of succession mentioned in the deed of gift as sacrosanct and final, then their legal heirs are bound by such conduct.

"The plaintiffs have themselves accepted the existence of the Will, partition decree and the deed of gift and cannot blow hot and cold at the same time", added the Bench.

Advocates Debnath Ganguly & Basab Shaw appeared for Appellants and Advocate Souradipta Banerjee appeared for the Respondents.

Going by the background of the case, one Bonku Behari Shaw @ Saha was the common ancestor of the parties and owned several properties. Even though Saha has two wives, his Will only recognized male line of succession on the death of his sons, who would be entitled to enjoy the properties absolutely with the right of alienation. One gift deed was executed, which provides that the sons of the donees shall acquire absolute right, title and interest in the property and allotment of their respective fathers would go to their male legal heirs absolutely and forever and if any of such sons do not have any male legal heirs, the same would go to the male legal heirs of the other lot. The plaintiff Bratin is the son of Bimal Behari, who was one of the sons of Bonobehari and by virtue of the deed of gift became the owner of the suit property.

The plaintiff filed the suit inter alia, for eviction and recovery of Khas possession on the ground that the defendants have no right, title interest in respect of suit property. The suit property devolved upon the plaintiff by way of inheritance, and he became the sole and absolute owner of the said premises. During the period when he was minor and thereafter when he became major in 1997 the plaintiff demanded possession and ultimately issued a legal notice calling upon the defendants/appellants to hand over possession of the suit premises.

The appellants/defendants opposed the same by alleging that the father of the plaintiff was a minor at the time of the execution of the deed of gift and as a minor, he could not have accepted the deed of gift. The defendants are is possession of the suit premises based on their own right which were never extinguished. On the basis of pleadings, the Trial Court arrived at a finding that the plaintiff is the owner of the suit property and decreed the suit accordingly.

After considering the submissions, the High Court noted that the essential question is the legality and validity of the Will of Banku Behari and Deed of gift executed by Bonobehari only to the extent it is restricted to the male line of succession.

If the said Deed is held to be invalid and unenforceable then the appellants may get a share in the suit property in which case they shall be treated as co-sharer and not trespassers, added the Court.

The Division Bench noted that when the predecessors of the appellants were estopped by conduct in challenging the recitals in the Will or the deed of gift, the plaintiffs cannot in an oblique manner raise any dispute with regard to the validity of the said instruments, and all the parties generation after generation have conducted themselves in accordance with the final decree of partition and the deed of gift of Bonobehari.

The appellants also cannot succeed as there is a clear acquiescence even if it is assumed that the restriction imposed in the deed of gift with regard to succession is invalid. Biman and Bilas having a right to challenge the gift deed stood by and witnessed the four brothers and their branches succeeding to the estate and deal with the respective portions allotted to them in a manner inconsistent with their right while the act was in progress and after their hope is completely shattered and after the violation is completed. This conduct would clearly reflected their ascent and accord. They did not complain when they were alive and their legal heirs cannot afterwards complain with a view to unsettle and upend things that have attained finality and acted upon by all. Moreover, the appellants cannot contend that the Will of Bonku Behari or the deed of gift is partly valid and partly invalid as they themselves have taken benefit under the said two documents. The preliminary decree in the partition suit following the Will is the source of right through which all the parties have derived interest”, added the Bench.

Highlighting that a statutory right may also be waived by implied conduct, and a right, if it is assumed to exist, when not exercised for a long time makes it non-existent, the High Court observed that when the predecessors of the parties have acted on the Will, partition decree and the deed of gift of 1943 and they have completely abandoned their rights if any, the same implies an intentional act not to challenge the said instruments.

The High Court therefore, affirmed the order of Trial Court, and added that the appellants also cannot succeed as there is a clear acquiescence even if it is assumed that the restriction imposed in the deed of gift with regard to succession is invalid.

Cause Title: Kalpana Shaw @ Saha & Ors. v. Bratin Saha

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