MOUMITA MITRA Vs. RABINDRA NATH BASU

JUDGEMENT

(1.) This revisional application is directed against an order of the Assistant District Judge, fifth court, Alipore by which he ordered the striking out of certain properties from the schedule to the plaint of a partition suit. The facts of the case may be succinctly stated as follows.

(2.) The original plaintiff one Paresh Nath Basu instituted a partition suit against his brother Naresh Chandra Basu, Naresh's son and wife Ramendra Nath Basu and Amala Basu and the plaintiff's mother Sarojini Basu for partition of their undivided properties mentioned in the different schedules to the plaint. The suit was decreed in part by the lower court in the preliminary form. On appeal the first Appellate Court allowed the appear in part and decreed the suit in a preliminary form. The plaintiff got a decree For partition in respect of 5/12th share in the 'Ka', a.nd 'Ja' schedule properties and half share in respect of 'Kha', 'Ga', 'Gha', 'Uma' and 'Catha' schedule properties. The plaintiff's claim for partition in respect of 'Cha' schedule properties was disallowed. On a second appeal being preferred before the High Court, the said court dismissed the appeal and endorsed the decree of the first Appellate Court.

(3.) The main contention in regard to the share in the properties was, however, in respect of 'Kha', 'Ga', and 'Gha' schedule properties. These properties were purchased in the name of Sarojini, the mother of the plaintiff and the defendant No. 1 Naresh. The plaintiff's case is that the parties descended from a common ancestor, namely, late Kshetra Mahon Basu who died leaving two sons, Manmatha and Haren. Manmatha married but became insane and died in 1932 leaving his wife Sarojini and two sons Naresh and Paresh. It is stated that certain properties were purchased in the name of Sarojini out of the nucleus of the joint family fund contributed by Haren and Paresh (Naresh having no income at the relevant time). The said properties were purchased in the name of Sarojini between the period from the 9th April, 1937 and the 12th September, 1946. It is the case of the plaintiff that after the death of Manmatha, Haren became the Karta of the joint family and out of compassion towards Sarojini whose husband died an insane, he purchased the properties in her name out of the joint family funds. It has been further alleged that the defendant No. 1 Naresh with a view to grabbing the properties obtained two deeds - one fictitious sale deed in favour of his wife Amala and another fictitious deed of gift in favour of his minor son Ramendra, executed by his mother Sarojini. The plaintiff claims that the properties in question were purchased in the benami of Sarojini out of the joint family funds and that the same belong to the joint family in which the plaintiff and his brother had equal shares. The first Appellate Court accepted the plaintiff's case of purchasing the property in the benami of Sarojini and decreed the suit accordingly. As regards the sale deed and the deed of gift executed by Sarojini in favour of defendant Nos. 2 and 3 the first Appellate Court held that those deeds were sham and colourable ones. The said Court, therefore, decreed the suit in respect of the properties held in the benami of Sarojini taking the same as belonging to the joint family and being inherited by Naresh and Paresh. In the High Court the finding of the lower Appellate Court regarding the benami nature of the properties purchased in the name of Sarojini was confirmed. As regards the subsequent documents created by Sarojini in favour of defendants Nos. 2 and 3, the High Court endorsed the views expressed by the first Appellate Court that they were sham and colourable transactions. The suit was accordingly decreed in the preliminary form in confirmation of the decree of the first Appellate Court.