KAMALINI GHOSE CHOUDHURANI Vs. HIMANGSHU BHUSHAN GHOSE

JUDGEMENT

(1.) Six brothers Manmatha Nath Ghose, Promotha Nath Ghose, Sitikantha Ghose, Sudhangsu Bhusan Ghose, Himangshu Bhusan Ghose and Haridas Ghose owned in equal shares, each having an undivided one-sixth, several properties (including their residential house) at Barnia. In course of time, Pramatha, Sitikantha, Manmatha and Sudhangsu died, leaving respectively widow Charubala, widow Mrinalini, son Kaliprasanna and widow Unmadini and sons Biswanath, Debabrata, Subrata and Satinath, as their heirs and legal representatives, who, along with the two surviving co-sharers, Himangshu & Haridas, became entitled to the said properties, each branch having an undivided one-sixth share.

(2.) On 18th Sraban 1351 B.S., corresponding to 3-8-1944 the abovenamed heirs of Pramatha, Sitikantha, Manmatha and Sudhangshu sold their undivided one-sixth shares, totalling four-sixths or two-thirds, in the several properties, described in Schedule (Ka) of the present plaint and belonging to the above family, to the present defendants 1 and 2, Sm. Kamalini Ghosh Chowdhurani and Sm. Bani Ghosh Chowdhurani, for a total price of Rs. 7,999/. The sale purported to be an absolute sale and, therefore, the surviving original co-sharers, Himangshu and Haridas, who were at the time the immediate presumptive reversioners, brought the present suit on 13-9-1944, for 'inter alia' a declaration that the above sale of the disputed properties by Charubala and Mrinalini (who were defendants 3 and 4 in the suit) to Kamalini and Bani (defendants 1 and 2) was void after the lifetime of the said vendors (defendants 3 and 4). In the suit, the other vendors, namely, the heirs of Manmatha and Sudhangsu, whose names have been given above, were made 'Pro forma' defendants 5 to 10 and there was also a prayer in the plaint for a declaration that, save and except the life interest of the two ladies Charubala and Mrinalini (defendants 3 and 4), no other or additional interest had passed to the vendees (defendants 1 and 2) under the above Kobala. It appears, however, on a reading of the entire plaint, that the said prayer, though couched in very wide language, was really limited to a declaration as regards the shares of the two ladies (defendants 3 and 4) only and did not embrace a challenge as regards the other shares sold. That was the scope of the suit, as understood by the parties both here and in the Court below, and, by the above lines, we have merely clarified matters to prevent any possible misunderstanding. The second plaintiff Haridas died while the suit was pending in the trial Court and his name was expunged by the Court's order, dated 2-1-1945, and the names of his substituted heirs also were subsequently expunged by order, dated 9-2-1945. This was, apparently, upon the view that the suit was a representative suit on behalf of all the reversioners and the presence of plaintiff 1 Himangshu alone was sufficient for its purpose.

(3.) The plaintiff's case was that Charubala and Mrinalini had no more than 'widow's estates' in the suit properties and the disputed sales had not the necessary supporting legal necessity or 'bona fide' enquiry, as required by the relevant Hindu Law to make them effective beyond the lives of the two widows. There were also allegations of fraud and undue influence against the first vendee's husband Harinarayan Ghosh Choudhury and the recitals of legal necessity and the like in the disputed Kobala were characterised as false.