MAHABIR SAHA Vs. HARIPADA SAHA

JUDGEMENT

(1.) The plaintiffs allege that the disputed property originally belonged to one Abdul Sobhan Khan and after his death that property was acquired by many persons. Gopal Chandra Saha was the father of defendant No. 1, Maha-bir, and grandfather of plaintiff No. 1. In 1928, Gopal expired leaving Mahabir, Haralal (son) and one Milan Bala, defendant No. 2, who is the widow of his predeceased son, Krishnalal Saha. Haralal died in 1354 B.S. leaving his widow and son (plaintiff No. 1), Haripada Saha, Gopal Chandra was the owner of premises No. 55, Subal Das Road, 35, Nawabgunj Road, 50/1, Subal Das Road and 47, Nawabgunj Das Road within the Dacca Municipality. Since Milan Bala was not an heir of Gopal Chandra, he made provision for her maintenance by making a gift of 2 rooms of his residential house for her and also providing for a sum of Rs. 6 per month for her maintenance. After partition of Bengal the plaintiffs, defendant No. 1 and defendant No. 2 migrated to West Bengal. Defendant No. 1 was the Karta of the Hindu joint family. An arrangement was made with the heirs of Abdul Sovan Khan that an exchange would be made. The valuation of the Dacca property was assessed at Rs. 17,000 and of the Dum Dum property in Calcutta at Rs. 22,000. Powers of Attorney were executed. The plaintiffs and defendant No. 1 executed a power of Attorney in favour of the Muslim co-owners. The latter also executed a power of Attorney in favour of defendant No. 1 because the plaintiff No. 1' was a minor and plaintiff No. 2 an illiterate woman. In September, 1950, the parties delivered possession of the respective properties in terms of the power of Attorney. Then defendant No. 1 realised the rents of the disputed property on his behalf and on behalf of the plaintiffs. Then on the 26th Nov. 1956, a document of lease was executed regarding the disputed property at 23/1/B, Dum Dum Road, Calcutta. Since the plaintiff No. 1 was then a minor and his mother an illiterate pardanasin woman, they had to depend entirely on Mahabir in the matter of execution of the lease The said plaintiff and defendant No. 1 had moiety share in the Dacca property and consequently they acquired 1/2 share each in the Calcutta property on the footing of the document of such lease. It appears that taking advantage of tha minority of the plaintiff No. 1 and illiteracy of the plaintiff No. 2, Haripada committed fraud and it was recited in the Deed of Lease that the plaintiffs had only l/3rd share and Mahabir had 2/3rd share therein and sum of Rs. 5000 had been paid by him from his own fund. In fact, Mahabir had no much money. That sum was paid by him from the profits of the joint property. The plaintiffs experienced difficulty and they asked for partition. But Mahabir did not comply with the demand. Hence the suit for partition on the allegation that the plaintiffs had 8 annas share in the property in question.

(2.) Defendant No. 2 Milan Bala filed a written statement supporting the plaintiff's assertions.

(3.) Defendant No. 1 filed a written statement denying the plaintiffs' allegations. His case is that after the death of Gopal Chandra, Haralal sold his undivided 1/2 share in the premises No. 50, Subal Das Road to a stranger. Haralal also mortgaged premises No. 55, Subal Das Road for Rs. 1000. Defendant No. 1 paid that debt and obtained the deed of mortgage from the mortgagee. Hence Haralal had the liability to pay this dues. After that arrangement for exchange was made, defendant No. 1 spent more than Rupees 4000 from his personal fund. He also paid Rs. 5000 in cash to the Muslim co-owners when the aforesaid deed of lease was finally executed.