BISWANATH BANERJEE Vs. BALAI LAL MUKHOPADHAYA

JUDGEMENT

(1.) This appeal is preferred by the plaintiffs-appellants against judgment and decree of the trial Court in a suit for partition briefly in the circumstances as follows: One Saraswati Devi, since deceased, a daughter of one Joy Kishan Mukherjee of Uttarpara, it is alleged, got absolutely under his Will a dwelling house with connected lands and tanks amongst other properties at Uttarpara which devolved after her death upon her three sons Gnanendra Nath Banerjee. Amarendra Nath Baneriee and Sachindra Nath Banerjee in equal share, who during their lifetime were in possession thereof as the members of the Dayabhaga Hindu Joint family. Of these three brothers Gnanendra died first in or about 1314 B. S. leaving his only son Parbati as his heir. A bus service business started by Amarendra Nath along with Sachindra as joint family business though proved to be a profitable concern at the early stage 'became ultimately a losing concern resulting in involvement of debts. In order to avoid the clutches of creditors end to protect the dwelling house of the family, it is alleged Sachindra on his own initiative had a deed of sale executed and registered on 14-12-37 by Amarendra in respect of 1/3rd share of the above property and since kept him as benamidar of Amarendra during his lifetime and after latter's death the plaintiffs Nos. 1 to 8 being his sons and No. 9 being his widow had been and are still in possession thereof together with Sachindra during his lifetime as members of the undivided Hindu joint family. On or about 23-6-39, Parbati executed and registered a deed of conveyance in favour of one Lokenath Mukheriee in respect of his 1/3rd share. On or about 5-12-43. Sachindra as Karta of the joint family. Amarendra having died in the meantime sometime in 1938, re-purchased by a registered document of conveyance the share of Parbati from Lokenath with the money obtained from sale of portion of the joint family properties and joint family capital and since then the plaintiffs had been in joint enioyment and possession of the entire dwelling house with lands and tanks.

(2.) Sachindra. however, had no male issue and his only daughter, it is alleged became unchaste and left him. He could not maintain the burden of joint family expenses with his small salary as a school teacher from school and his health broke down and he suffered from mental derangement. Taking advantage of his weak state of health and mental unsoundness some of the defendants alleged to be members of the Managing Committee of the "Uttarpara Junior High School" got a deed of gift executed and registered in favour of the school in respect of the dwelling house of the Parties which, it is alleged, is "invalid inoperative and a sham document" and could not create any title in favour of the school. The plaintiffs in these circumstances claimed partition of their 1/3rd share in respect of the above property by metes and bounds.

(3.) The suit was contested by a group of stranger purchasers of certain portion of the dwelling house lands, defendants-respondents Nos. 10 to 16, by the members of the school committee defendants-respondents Nos. 1 to 8 and by defendant-respondent No. 9. daughter of Sachindra putting in three sets of separate written statements. Apart from the general denial of all material allegations of the plaint the case set up by all the defendants in their written statements substantially was that the conveyance executed by Amarendra was not a benami document, but Sachindra purchased his share on payment of the entire consideration money and since then he became the exclusive owner of 2/3rd share of the entire dwelling house property. He permitted Amarendra and after his death his widow and sons, the plaintiffs, to continue to stay in the property out of human consideration who had no right, title interest or possession in the disputed property as members of the Hindu joint family or otherwise after the sale was effected by Amarendra in respect of his 1/3rd share. Sachindra also purchased the share of Parbati on his own account from Lokenath and thus became the absolute owner of the entire dwelling house property. He executed a deed of gift in favour of the school out of his own free will and in perfect state of health and thus the plaintiffs had no right to claim partition. The stranger-purchasers defendants 10 to 16 acquired valid title by their respective purchases from Lokenath.