ANIL BARAN BHATTACHARJEE Vs. SUNIL BARAN BHATTACHARJEE

JUDGEMENT

(1.) This First Appeal is directed against the preliminary decree passed by the Learned Assistant District Judge, 3rd Court at Midnapore on 14th July, 1987 in the partition suit being Title Suit No. 24 of 1983, filed by the plaintiff/respondent No.1 herein. Originally the said suit which was filed before Learned Assistant District Judge 1st Court, Midnapore was registered as T.S No. 8 of 1982 and subsequently on transfer of the same to the Court of the Learned Assistant District Judge, 3rd Court, Midnapore for disposal, it was renumbered as T.S. No 24/ 1983.

(2.) The parties are closely related to each other. The plaintiff, namely, Sunil Baran Bhattacharjee is the son of defendant No. 2, namely, Smt. Khemankari Devi. Anil Baran Bhattacharjee is the other son Smt. Khemankari Devi. The Defendant No. 5, namely, Shri Sitaram Chakraborty is the husband of the predeceased daughter of Smt. Khemankari Devi, namely Krishna. Defendant Nos. 3 and 4, namely, Shri Tapas Kumar Chakraborty and Kumari Rinku Chakraborty respectively, are the son and daughter of the predeceased daughter of Smt. Khemankari Devi, namely, Krishna. The plaintiff filed the suit claiming his 1/4th share in respect of the suit properties. The plaintiff's claim of his 1/4th share in the suit property in schedule 'Ga' to 'Una' which he inherited through his father on his death is not disputed as admittedly, those properties belonged to the father of the plaintiff.

(3.) Dispute was with regard to 'Ka' schedule and 'Kha' schedule properties. The plaintiff asserted that Amulya Ratan Bhattacharjee, the father of the plaintiff was a Pandit of a Tole run under the name & style 'Sibakali Chatuspathi'. He also used to practice Ayurvedic medicine and was also a professional priest and had immovable properties. He, thus, used to earn considerable amount from the above sources. The plaintiff claims that the property described in the schedule 'Ka', as referred to above was purchased by his father but in the name of his mother Khemankari Devi and this was done by the plaintiff's father for avoiding future complications with plaintiff's uncle so that he cannot claim any interest in the said property by treating the same as property belonging to the joint family (consisting of grand father and uncle of the plaintiff). The plaintiff thus claims that the defendant No. 2, namely, Khemankari Devi was the ostensible owner or benamder of her husband, namely, Amulya Ratan Bhattacharjee in respect of 'Ka' schedule property. It is further alleged by the plaintiff that his father paid rent & municipal taxes in respect of the said property during his life time even though the said property was mutated in the name of the defendent no. 2, Khemankari Devi. It was further alleged by the plaintiff that the defendant no. 2, Khemankari Devi, did not have any independent source of income nor she had stridhana like gold ornaments for purchasing the schedule 'Ka' property, rather she was fully dependent on her husband's income. The Plaintiff further claims that Amulya Ratan, the father of the plaintiff sold some properties at Hirasagar, Kantapukuria and Gopalpur and purchased the 'Ka' schedule property having a dilapidated structure with tin shed, kitchen etc, therein. It was further alleged by the plaintiff that apart from the said property, Amulya Ratan used to possess the 'Kha' schedule property, hostile to the title of the real owner and acquired title by adverse possession. The plaintiff further claims that the defendant No.1 or 2 never contributed to the construction of their dwelling house rather the father of the plaintiff contributed the entire fund for construction of the house on the said 'Ka' schedule property. The defendant No. 2, Khemankari Devi was affectionate to her eldest son, the defendant No. 1. Amal Bhattacharjee, the youngest son of Khemankari Devi, predeceased his father and after the death of Amal , (who died on July 10, 1974), his mother, namely Khemankari Devi, lost her mental balance and taking advantage of such helplessness, the eldest son of Khemankari Devi along with his sister, Krishna, since deceased, managed to execute a deed of gift from Khemankari Devi, in respect of the 'Ka' schedule land with a view to defraud the plaintiff as the plaintiff was absent at his residence at 'Ka' schedule land as at the relevant time he had to stay at his in- law's house to look after his pregnant wife. The defendant no. 1, never contributed any fund for the purpose of construction of his ancestral dwelling house. At the material time Amulya Ratan was staying at Entally, Kolkata and he was not aware of the factum of execution of any such deed of gift by Khemankari Devi in favour of Anil Baran Bhattacharjee, the defendant no. 1 & his sister Krishna. It is alleged that Khemankari Devi did not have any right to execute any deed of gift in favour of her eldest son Anil and her daughter Krishna. Amulya Ratan used to possess the entire land described in the schedule 'Ka' and 'Kha' of the plaint and after his death, interest in the disputed properties devolved upon his legal heirs. The plaintiff having undivided share in the disputed property claimed his share therein but the contesting parties refused to give him any share in the 'Ka' and 'Kha' schedule property on the plea that the defendant no. 2, Khemankari Devi executed the deed of gift in their favour and they forced the appellant to take recourse of the law for seeking redress.