BISWANATH KABASH Vs. PANCHULAL DAS MODAK

JUDGEMENT

(1.) The judgment and decree dated 28-11-1989 passed in Title Appeal No. 85 of 1986 by learned Additional District Judge, 12th Court, Alipore, 24- Parganas (South) affirming the judgment and decree dated 11-9-1986 and 4- 11-1986 respectively passed in Title Suit No. 145 of 1975 by learned Assistant District Judge, Alipore, 24-Parganas (South )for partition declaring that the plaintiffs have 4/9th share in the property is under challenge in this appeal at the instance of the defendants/appellants. Filtering out unnecessary details the fact of the case is that the suit property ,Bastu measuring 20 decimal appertaining to Plot No. 25 in Khatian No. 824, Nungi , P.O. Batanagar, P.S. Maheshtala, District-South 24- Parganas admittedly belonged to one Haradhan Kabash and on his death passed to his three sons Purna Chanda, Trailokyanath and Parimohan, Purna, Trailokyanath and Parimohan died leaving their sons Kalipada, Hiralal and Upendra respectively. Each of them succeeded 1/3rd share to the suit property and they used to possess the same by mutual partition. Hiralal sold his share to one Chintamoni Das Modak on 18-8-1927 by a registered kobala. Chintamoni adopted his nephew Bechuram Das Modak who inherited 1/3rd share of Chintamoni on his death. On the death of Bechuram Das Modak, the plaintiffs i.e. Panchulal and others inherited his share. On the death of Upendra sometime in 1937 his widow Durgabala inherited her husband's share as Upendra and Durgabala had no issue. Durgabala sold her interest to her brother Jibon by a kobala dated 2-4-1952 , thereafter Jibon sold his interest to the plaintiff Panchulal Das Modak by a registered kobala dated 14.3.1969. Thus the plaintiff by purchase and inheritance acquired 2/3rd share in the suit property and were in joint possession with the defendant Nos. 1 to 8, the heirs of Kalipada who had 1/3rd share. The plaintiffs demanded partition of the joint property which was refused by the defendants. So the suit.

(2.) The defendant Nos. 1 to 5 contested the suit by filing written statement and contended, inter alia , that Hiralal never sold his share to Chintamoni and Durgabala had no authority to sale her husband's share to Jibon by kobala dated 2.4.1952. They have asserted that they have 2/3rdshare in the suit property which was originally belonged to Kalipada and Upendra and that Chintamoni died leaving behind Phoni, Gobinda and Jagannath as his brothers besides his nephew Bechuram. Bechuram had no authority in the property and as such the plaintiffs could not succeed to the said 1/3rd share of Chintamoni. The record of rights in respect of share of Upendra is erroneous. The possession of the plaintiff in the suit property is denied.

(3.) Undisputed Background- Learned Assistant District Judge arrived at a finding that Durgabala had really felt actual necessity for essential and obligatory purposes and had authority to transfer her limited interest of the suit property to Jibon. She transferred it and the said transfer was valid.