SUMITA CHAKRABORTY Vs. SRI AMIT KUMAR BANERJEE

JUDGEMENT

(1.) THIS appeal is directed against judgment and decree dated 20th May, 2000 passed by learned Civil Judge (Senior Division), Additional Court, Hooghly in Title Appeal No.264 of 1996 affirming the judgment and decree dated 9th October, 1996 passed by learned Munsif, Additional Court, Hooghly in Title Suit No.5 of 1991.

(2.) THE appellant/plaintiffs case, in short, may be summarized as follows:- THE suit property which was a dwelling house originally belonged to the predecessor-in-interest of the parties namely Gobindo Gopal Banerjee who died on 15th July, 1974 leaving behind present plaintiffs and defendant No.3 as daughters and defendant Nos. 1 and 2 as son and widow respectively being his only heirs. On his death all the parties of the suit inherited said property each having 1/5 undivided share therein. At that time all said daughters of Gobindo Gopal Banerjee were unmarried, but deceased father left fixed deposit of maturity value of Rs.15,000/- in the joint name of plaintiff No.1 and defendant No.2 and also a fixed deposit of maturity value of Rs.70,000/- in the joint name of defendant No.2 and defendant No.3. After death of Gobindo Gopal Banerjee all the parties of the suit started to possess the suit dwelling house jointly in ejmal. Plaintiff No.1 and plaintiff No.2 were married on 2.05.1984 and 20.07.1980 respectively and after marriage they started to reside in their respective matrimonial house at Durgapur though they often visited their fathers house. On 19th of February, 1975 plaintiffs were induced to execute a power of attorney in favour of their mother defendant No.2 by empowering her to look after the suit property and other properties left away by their father for protecting the interest of plaintiff/daughters. Said power of attorney was obtained by perpetuating fraud and misrepresentation and by exercising undue influence by taking advantage of the confidence and good faith of the plaintiffs upon brother defendant No.1 and mother defendant No.2. During Durga Puja of 1984 when plaintiffs came to visit the suit property they were not accepted by defendant Nos. 1 and 2 in good grace. Plaintiffs became suspicious and on enquiry they learnt that defendant Nos. 1 and 2 were trying to create documents in respect of shares of plaintiffs in the suit property by virtue of said power of attorney of 1975. Plaintiffs on search in registry office came to learn on 12th of October, 1984 that the defendant Nos. 1 and 2 fraudulently incorporated a term in said power of attorney empowering defendant No.2 mother to make transfer of the paternal property of the plaintiffs, though plaintiffs never gave any such power to their mother by said power of attorney. THE plaintiffs after returning to Durgapur sent a letter under certificate of posting dated 15th of October, 1984 revoking the power of attorney which was received by defendant No.2 mother on 22.10.1984. THE plaintiffs in consultation with their lawyer executed a registered deed on 25th November, 1984 whereby the power of attorney dated 19th of February, 1975 was cancelled. But the plaintiffs came to know that defendant No.2 on the strength of said power of attorney which was already revoked, executed purported sale deeds relating to plaintiffs share in said dwelling house in favour of defendant No.1 though no consideration was passed.

(3.) THE defendant No.1, however, contested the suit by filing written statement denying material allegations of the plaint. He contended inter alia that the suit as it was framed was not maintainable, the suit was not properly valued and that it was barred under Section 34 of the Specific Relief Act. It was a further case that plaintiffs being married daughters had no right of residence in the suit dwelling house under Hindu Succession Act. According to defendant No.1 the power of attorney of 1975 was executed by the plaintiffs out of their own volition and knowing its contents and that on the strength of said power of attorney defendant No.2 mother sold plaintiffs shares of the suit property to defendant No.1 on receipt of consideration and the plaintiffs had no right to challenge the same. THE defendant No.1 made loan from the market for marriage of the plaintiffs. No revocation notice was sent to defendant No.2 and the plaintiffs managed to obtain a manufactured and back dated receipt.