BIJAN KUMAR BARMAN Vs. BHASKAR CHANDRA BARMAN

JUDGEMENT

(1.) The substantive question of law involved in this appeal is whether the first appellate Court while reversing the judgment of the trial Court was justified in holding that the Nirupan Patra executed by Dhukhishyam Barman in favour of the appellant No. 1 was a collusive and sham transaction despite the fact that the plaintiff himself derived benefit therefrom.

(2.) The respondent No. 1 herein and his two sisters filed Title Suit No. 66 of 1985 in the trial court alleging that the appellant No. 1 along with other appellants had been threatening them with dispossession on the basis of a Nirupanpatra purportedly executed by his father, Dukhishyam Barman, dt. 5-4-1972 although such a deed was vitiated by fraud and undue influence as Dukhishyam was aged about 95 years and had been suffering from physical infirmities which rendered him incapable of understanding about the nature of the transaction. The aforesaid Nirupanpatra which seeks to devise and distribute the immovable properties among two sons and wife of Dhukhishyam is dispropertionate shares to the exclusion of the daughters of the executant is not binding upon the plaintiffs. The learned trial Judge dismissed the title suit holding that Nirupanatra was a valid and genuine document.

(3.) Reversing the said decision of the trial Court the first appellate court dereed the suit by holding that Nirupanpatra was a sham transaction and execution of such deed was result of collusion between the defendant No. 1 (appellant No. 1 herein) and the witnesses to the deed.