The Appellant as Plaintiff filed a Suit for Partition, Declaration, Recovery of Possession, and other Consequential Reliefs. The Learned District Court dismissed the case and the aggrieved appellant moved to High Court. After considering the facts and decision of the District Court, the High Court also dismissed the case. The Hon’ble High Court of Sikkim before Mrs. Justice Meenakshi Madan Rai held such in the matter of Ram Naresh Giri vs. Krishnawati Devi & Ors.[ RFA No.02 of 2019].
The facts of that case were the aggrieved party moved to the High Court after his suit was dismissed by the learned District Judge, Special Division-I, Sikkim at Gangtok. The Appellant’s father had three sons and the appellant was the second son. The husband of Respondent No.1 who is the eldest son is untraceable since 1996. Respondents No. 2 & 3 are the children of Respondent No. 1. Respondent No. 4 was the third son and suffered mental illness from 2000 to 2005. Appellant constructed a 4 storey RCC building on the plot which was allotted to his father by Sikkim Government in 1998. All the finance was done by the appellant himself. The dispute is between the inequitable distribution of the first floor where Respondent No. 2 and 3 have 2 shops. Appellant wasn’t given a portion despite having one-third share in it. The alternate was to compensate him monetarily for his investments in the property.
The Learned Trial Court contended,” 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.” The Appellant claimed that they had constructed the building under schedule A and produced the required shreds of evidence as well and plead to set aside the Judgment given by the learned trial Court.
In the current trial, the Respondents denied and disputed the claims made by the appellant and claimed that the property wasn’t under Schedule A and was self-acquired. Also, the Appellant had no evidence to claim that he financed the construction.
The court found that the shreds of evidence produced by the Appellant were of 2006 which is after 2 years of construction and didn’t support the case. The court decided that since the floors were divided by the father they are irrevocable as per Section 52 of the Indian Easements Act, 1882, and hence, the Appellant has no right over the 1st floor of the property.
The Hon’ble High Court held,” 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 as he desires.” The court referred to the decision of the Hon’ble Supreme Court in C.N. Arunachala Mudaliar vs. C.A. Muruganatha Mudaliar and Another[AIR 1953 SC 495] and Govindbhai Chhotabhai Patel and Others vs. Patel Ramanbhai Mathurbhai[(2020) 16 SCC 255] and said,”.. 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.”
The Hon’ble High Court of Sikkim in the light of the facts and circumstances found that the judgment of the Learned Trial Court brooks no interference and gave no orders as to cost. The appeal failed and was dismissed by the Court.
Judgment Reviewed By Nimisha Dublish