ASESH KUMAR SETH Vs. ASHIM KUMAR SETH

JUDGEMENT

(1.) This second appeal is directed against judgment and decree dated 29th January, 2000 passed in O. C. Appeal No. 49 of 1997 by learned Additional District Judge, Malda reversing the judgment and decree dated 30th April, 1997 passed by learned Assistant District Judge, Malda in O. C. suit No. 167 of 1993.

(2.) The respondent as plaintiff filed said suit for declaration of a deed of gift relating to 'ka' schedule property as void with an alternative prayer for partition. His case, in short, is that 'ka' schedule property originally belonged to one Pran Mohan Das, father of Brajabala who was grand mother of the parties of the suit. It is further case that on death of Pran Mohan Das suit property devolved upon his heirs namely Balaram and Kanai whose names were recorded in C. S. R. O. R. As per last wish of Pran Mohan Das they gifted the suit property to Brajabala as a dowry in her marriage. Brajabala died while his son Brojesh, the father of the parties, was only one year old and thereafter Brojesh was brought up in his maternal uncle's house.

(3.) Brojesh was the owner of the 'ka' schedule property as only heir of Brajabal. After death of Brojesh in 1981 the suit property devolved upon his three sons namely Asesh (defendant No. 1), Asim (plaintiff), Adhir (defendant No. 2), daughter Ashoka (defendant No. 3) and wife Bimala each having 1/5th share therein. At the time of drawing up a family settlement in 1981 it came out that the suit property was wrongly recorded in R. S. R. O. R. in the name of their mother Bimalabala. Taking advantage of said wrong entry in the record of right Bimalabala executed one deed of gift being No. 7127 in favour of Adhir (defendant No. 2) on 20.07.1993. Said deed was also vitiated by fraud and undue influence. At the relevant time Bimalabala was not also physically and mentally fit to execute said deed of gift. Bimalabala had only 1/5th share in said suit property being one of the legal heirs of her husband Brojesh. It is further case that no partition was effected in between the co-sharers and hence the plaintiff is entitled to get a decree for declaration that the aforesaid deed of gift was void and not binding upon him and in the alternative a decree of partition.