KUMATI BALA ROY Vs. NIRMAL CHANDRA ROY

JUDGEMENT

(1.) THIS appeal is at the instance of the Plaintiffs and it arises out of a suit for setting aside a kobala dated September 7, 1959 executed by the mother of the plaintiffs sm, Pnsheswari Debi in favour of her brother's son who was the defendant no. 1 in the suit. By the said kobala Pusheswari sold about twenty three bighas of land for a consideration of Rs. 10,000. 00 (Rupees ten thousand)to her brother's son the defendant No. 1.

(2.) THE plaintiffs challenged the said kobala as vitiated by fraud and undue influence of the brother and brother's son of Pusheswari. The learned Subordinate Judge after considering the evidence found that the kobala in question was not obtained by fraud or undue influence and that the document was executed by pusheswari for the consideration mentioned therein. The lower appellate court on appeal by the plaintiffs affirmed the findings of the learned Subordinate judge and dismissed the appeal.

(3.) MR. Joy Gopal Ghosh, learned advocate appearing for the plaintiffs, stenuously urged before us that the lower appellate court did not properly consider the contention made on behalf of plaintiffs, namely, that the document was obtained by the defendants by practising undue influence on pusheswari Debi. Mr. Ghosh argued that the brother of Pusheswari was in a position to dominate the will of his sister pusheswari and that the document was executed as a result of the said position of the brother of Pusheswari. Further it was argued by Mr. Ghosh that Pusheewari did not get any independent advice which was essential before the kobala could be held to be a valid transaction.