SHRIMATI KHETRABALA GHOSH Vs. AMBUS BALA BASURI

JUDGEMENT

(1.) This is a defendants' appeal against a judgment of reversal in a suit for declaration of title and for permanent injunction.

(2.) Title Suit No. 67 of 1976 was instituted in the Court of the learned Munsif, First Court at Bolpur by Bholanath Basuri, inter alia, for declaration of his title in respect of suit property and for, further, declaration that the deed of gift dated March 4, 1959 executed by Umasundari Basuri in favour of the defendant No. 1, Shrimati Khetrabala Ghosh, is invalid, illegal and void and, also, for permanent injunction. It is contended in the plaint of the said Title Suit No. 67 of 1976 that lands, described in schedule 'ka' to the plaint formally belong to the uncle of the plaintiff, Narendranath Basuri. The plaintiff's father, Radharaman, had two brothers, namely, Narendranath and Radhabinod. Radhabinod was the eldest brother. Among the brothers Narendranath died first about 52/53 years prior to the filing of the suit and 2 to 4 years thereafter the plaintiff's father died and 3 to 4 years thereafter Radhabinod died. On the death of Narendranath the suit property devolved upon his widow, Umasundari and on the death of Umasundari, the suit property was inherited by the plaintiff. Since after the death of Umasundari, the plaintiff has been in peaceful possession of the property, but in Aghrayan 1380 B.S. the defendants tried to cut away paddy from the suit land, but they were prevented from doing so. On enquiry it revealed to the plaintiff that Umasundari had made a gift of her properties to the defendant No. 1, Shrimati Kheterabala Ghosh, who is the daughter of the said Umasundari's brother. Shrimati Khetrabala Ghosh, by another deed of gift dated August 2, 1965 gifted the said properties in favour of defendants Nos. 2 and 3. It is alleged that Umasundari used to live in her matrimonial home at village Chela, but while she was staying for some days in the house of her brother Thaka Krishna Ghosh, the father of the defendant No.1, the said Thaka Krishna Ghosh took Umasundari to the Sub-Registry Office at Bolpur and the deed of gift was executed by her in favour of Thaka Krishna's daughter Shrimati Khetrabala Ghosh on March 4, 1959. It is contended that the deed was obtained by fraud, misrepresentation and undue influence upon Umasundari. Umasundari had no intention to execute the deed of gift in favour of defendant No. 1. The deed of gift executed by Umasundari was never acted upon. The deed was never read over or explained to her and she executed the deed without knowing the contents thereof. She did not get any independent advice at the time of execution of the deed of gift. By the deed of gift the defendant No. 1 acquired no title in the suit property and, therefore, by the subsequent deed of gift executed by Khetrabala, the defendant No. 1, in favour of the defendants Nos. 2 and 3, no title was conveyed to the defendants Nos. 2 and 3. The defendants, therefore, have no right, title, interest and possession in the suit property.

(3.) The defendants contested the suit by filing a joint written statement wherein they have denied the materials allegation made in the plaint. It was, however, specifically contended on behalf of the defendants that Umasundari admittedly had no children, but she brought up the defendant No. 1, Shrimati Khetrabala Ghosh. Umasundari gave Khetrabala in marriage and kept her in her house. Being pleased with her care and nursing Umasundari executed the deed of gift in favour of Khetrabala out of her own free will. The deed of gift was a valid one. The defendant No. 1 while in possession of the suit property executed the deed of gift in favour of her daughter and the son-in-law, the defendants Nos. 2 and 3, on August 2, 1965. Umasundari having gifted away the suit property before her death, the plaintiff did not acquire any interest therein by inheritance from Umasundari.