SAILENDRA KUMAR NEOGI Vs. SANTOSH KUMAR NEOGI

JUDGEMENT

(1.) In a suit for partition against the defendant, the plaintiffs, who are the successors-in-interest of Late Sidhheswar Neogi, urged that both the 'A' and 'B' Schedule properties belonged to Sidhheswar. The plaintiffs 1 and 2 are the sons of Sidhheswar. The plaintiff No.3 is the widow of Sidhheswar. The defendant is also a son of Sidhheswar. With reference to the 'B' Schedule properties, the plaintiff averred that Sidhheswar acquired the same properties in 1936 by obtaining a mortgage from one Sailendra Kumar Neogi. However, it was pointed out that as Sidhheswar Neogi was a railway employee and as there was prohibition against the mortgage transactions between the railway employees, the mortgage was taken in the name of the defendant. But Sidhheswar was paying rents, taxes, etc., all along, as claimed by the plaintiffs. Even after the father's death, the parties were living in joint mess. It is not disputed that the plaintiffs 1 and 2 and the defendant had another brother, Sachin, who died unmarried. On the basis of the case that both the 'A' and 'B' Schedule properties were the self acquired properties of Sidhheswar, the plaintiffs claimed 3/4th share and asked for partition according to their share.

(2.) The defendant did not dispute that the 'A' Schedule properties were acquired by Sidhheswar. So, the plaintiffs' claim in respect of the 'A' Schedule properties was not challenged. With regard to the 'B' Schedule properties, the defendant raised a serious controversy. Defendant asserted that the 'B' Schedule properties were acquired by him. As a narration how the defendant acquired the 'B' Schedule properties, it was stated that one Radha Kanta Neogi had mortgaged the 'B' Schedule properties to one Satish Chandra Nandi, who auction purchased it. Further, during the pendency of the litigation, Radha Kanta mortgaged the properties in favour of Late Sidhheswar Neogi, suppressing the facts. Radha Kanta approached Satish Nandi for resale and the latter agreed. Then, as per account of the defendant, Radha Kanta approached Sidhheswar Neogi, but the latter refused to advance money as he was deceived once by the said Radha Kanta. Then, the maternal aunt of the defendant suggested that she would ask her maternal uncle to advance the money to the defendant, because marriage negotiation between the defendant and the daughter of the maternal uncle of the maternal aunt of the defendant was going on. Under that arrangement, Satish resold on 5.9.36 to Radha Kanta and Radha Kanta executed mortgage deed in favour of the defendant. Ultimately, the defendant purchased the suit property on 8.12.42 in court sale, on the basis of the mortgage. In paragraph 7 of the written statement, the motive alleged by the plaintiff for acquisition of the property benami is denied. In paragraph 10 of the written statement, it is categorically denied that the 'B' Schedule properties were acquired with the money of Sidhheswar for his own benefit. In short, the defendant claimed that the 'B' Schedule properties belonged to him exclusively and he had self acquired the same.

(3.) The parties went to trial on the basis of these pleadings.