BASUDEB BISWAS Vs. RADHANATH MAITY

JUDGEMENT

(1.) THIS appeal at the instance of the plaintiffs arises out of a suit for declaration of the plaintiff's title in the suit property and confirmation of possession therein and for injunction. The case of the plaintiffs was that the suit land formerly belonged to one Dhararsidher Maity and he gave away the same to his second wife, pusparani, by a registered deed of Nirupan patra. Pusparani's name was duly recorded in the R. S. Khatian. Pusparani sold the suit land by registered Kobala on 11-5-61. 2129 2129 the suit plot no. 2499 and 2580 were previously Khas end both the plots have been converted into said lands by filling up with earth. The plot no. 2128 was also a doba and converted into said land. The defendants no. 1 to 6 are the step-sons of pusparani. It is alleged that the said defendants nos. 1 to 6 became angry as Pusparani executed Kobala in favour of the plaintiffs and the defendants were trying to thereaten to dispossess the plaintiffs from the suit lands. Hence the suit was filed. The defendants nos. 1, 2, 4, and 5 contested the suit by filing a joint written statement. It is alleged that the plaintiffs have got no title in respect of the suit land. The story of Dharani Maity's transfer of the suit property to Pusparani by a registered deed and the story of Pusparani's possession in the suit property are all false. The sale by pusparani to the plaintiffs was also denied to be false. It is stated that the said Kobala is fraudulent, collusive, without consideration and a mere paper transaction. It is alleged that Pusparani had no title or possession in the suit land at the time of execution of the said Kobala. Hence the plaintiffs did not acquire any title or possession by such Kobala. It is stated that the suit land along with other lands, belonged to the father of the defendants, late Dharanidhar Maity. He gave away his other property to defendants nos. 1 to 6 absolutely and the suit property was specified for the maintenance of Pushparani. In the said deed, there was a term that, Pushparani would enjoy the suit property living in her husband's house and after her death, the suit property would devolve on the defendants nos. 1 to 6 absolutely. There was also a term that, if Pushparani left her husband's house and began to live in some other place, her limited interest in the suit land would at once be extinguished. The defendant's father died in the year 1360 B. S. and thereafter in the year 1363 B. S. Pushparani left her husband's house and as such her limited interest was extinguished and the defendants nos. 1 to 6 were possessing the said land since then.

(2.) BEFORE notice the arguments advanced by both the parties, it is convenient for me to consider the deed of Nirupan Patra, admittedly executed by the father of the defendants nos. 1 to 6 and the husband of the plaintiff's vendor. In the said Nirupan patra in has been provided as follows : -<IMG>28_(1982)_1. jpg</IMG> In so far as Pushparani was concerned it has also been provided as follows :-<IMG>28_(1982)_2. jpg</IMG> <IMG>28 (1982)_3. jpg</IMG>

(3.) THE Court of first instance held that by nirupan Patra, only the life interest was given and in view of section 14 (2) of the hindu Succession Act, the restriction contained therein was valid. The learned additional District Judge, however, did not go into the question under section 14 of the Hindu Succession Act but held agreeing with the learned Munsif that by leaving the husband's house the vendor of the plaintiff's stood divested of her right, title and interest given in the Ext. A, a portion of which has been quoted by me in my judgment. Being aggrieved by the said order, the plaintiffs preferred the present appeal.