NEMAI BASAK Vs. KALYANI RAKSHIT

JUDGEMENT

(1.) This is a suit for declaration and for injunction. The plaint case in brief is that the premises No. 9A Ram Chand Ghose Lane, Calcutta originally belonged to one Mahadeb Chandra Basak (hereinafter referred to as "Mahadeb" only) who died in the year 1941 leaving behind his widow Mahamaya Basak, only son Ramesh Chandra Basak (hereinafter referred to as "Ramesh" only) and six daughters. During his lifetime Mahadeb inducted a tenant in one portion of that property. After the death of Mahadeb in the month of December, 1941 Mahamaya and Ramesh became the exclusive owners of the property left by Mahadeb in moiety according to the provisions of Dayabhaga School of Hindu Law. Ramesh being the eldest son and the only male member of the family used to look after the entire family affairs. Ramesh became ill in the year 1986 and at that time he disclosed to the plaintiff Nos. 1 and 2 who are Smt. Kamala Basak and Shri Nemai Basak, widow and son respectively of deceased Ramesh that in or about 1960 he took loan of Rs. 6,000/- from his tenant Ram Sankar Dutta (hereinafter referred to as "Ram Sankar"only) in order to arrange the marriage of his sister Smt. Reba Basak, Ram Shankar advanced the said sum of Rs. 6,000/- in the name of his wife and Ramesh mortgaged his share in the property on condition that the interest that would be payable on the said amount of loan will be adjusted from the rent payable by "Ram Sankar" for the said tenancy held by him. Ramesh was taken to the lawyer of Ram Sankar for preparation of necessary deed of mortgage. Ramesh during his lifetime went on paying rates and taxes to the Calcutta Municipal Corporation and used to realise rents of the said premises from the other tenants. Mahamaya died in the year 1982 leaving behind Ramesh, her only son and her six daughters to inherit her share in the property. At the time of his death Ramesh disclosed the names of persons before the said loan transaction was made. Ramesh died on 10th Nomember, 1986. After the death of Ramesh the plaintiffs became doubtful about the dealings of the defendant which prompted the plaintiffs to search at Registration Office. From the Registration Office they came to know that the defendant had procured a deed of sale on 13th December, 1960 in respect of the half share of the premises in question. Ram Sankar was the tenant in respect of the property and the agreement for lease in writing was executed on 1st March, 1960. The said agreement for lease was for 30 years in respect of the western portion of the suit premises. The said agreement for lease was executed by Ramesh only and Mahamaya was not a party to that agreement for lease. After search of the registry office the plaintiffs understood that Ram Sankar duped Ramesh by procuring a sale deed from Ramesh such sale deed was obtained by practising fraud upon Ramesh. It is also stated that although in the said purported deed of sale the consideration money was shown as Rs. 6.000/-, actually market value of that property will not be less than Rs. 1 lakh. In this background the present suit was filed.

(2.) The suit is contested by the defendant, Smt. Mahamaya Dutta, wife of Ram Sankar Dutta by filing a written statement in which all the material allegations are denied and it is inter alia stated that after the death of Mahadeb Basak in December, 1941, his only son Ramesh executed and registered a deed of lease in favour of Ram Sankar dated 8th March, 1960 in respect of the same property as described in the suit. Before that one agreement for lease was made between the parties on 1st March, 1960. In terms of that deed of lease Ram Sankar along with the members of his family came to the possession of the said property. Thereafter Ramesh approached Ram Sankar for selling his superior interest to the lessee and Ram Sankar agreed to purchase the said house property for valuable consideration. Thus, Ram Sankar purchased the suit property in the name of his wife, Smt. Mahamaya Dutta on 13-12-1960 and had been in peaceful possession of the same by paying municipal rates and taxes for both the owner's and occupier's share and also the defendant got her name mutated instead and place of her vendor, Ramesh. The defendant also exercised her right and ownership by constructing new roof, one asbestos sheded room on the first floor, and one bed room by altering the staircase and store room. The defendant also brought electricity connection in the suit premises and fixed new wooden staircase to her portion.

(3.) It is also stated that in the year 1941 when Mahadeb died the Hindu Succession Act did not come into force and so Mahamaya Basak, being the widow of Mahadeb could not inherit the property of her husband. Of course after the introduction of Hindu Succession Act in June 1956, the life interest of Mahamaya Basak was converted into absolute ownership according to Hindu Succession Act. It is further stated that Ramesh wanted to secure money for running his own business of a stationery-shop at Bagbazar in the name and style of "Kamala Stores" and with that purpose he sold his own interest in the suit property for a valuable consideration of Rs. 6,000/- which is the identical amount of the consideration money for the entire house property at 9A, Ram Chand Ghose Lane, Calcutta in the year 1933.