INDU BHUSHAN MITRA Vs. SUDHAKAR CHOUDHURY

JUDGEMENT

(1.) This second appeal by the plaintiff arises from a suit instituted by him for confirmation of his possession in the disputed homestead measuring 6 kattas 12 chattaks with a pucca structure thereon which admittedly formed the ancestral dwelling house of the family or in the alternative for recovery of joint possession on declaration of his 1/6th share in the same and in case it transpired that the defendants 2 and 3 had purchased the property, for a declaration that they were mere trustees for him regarding the said share and for re-opening the decree passed in Title Suit it No. 179 of 1938 and for passing a new decree granting the plaintiff easy instalments for payment of the decretal amount Under the new decree to be passed.

(2.) The disputed homestead was the ancestral homestead of the family. Bholanath Mitra, the father of the plaintiff, had 6 sons, Bireswar, defendant No. 4, Pashupati, defendant No. 5, Sudhir, defendant No. 3, Bankim, defendant No. 2, Indu Bhusan, plaintiff, and Surya, defendant No. 6. Defendant No. 1 Sudhakar is the brother or the wife of Bankim, defendant No. 2. Bholanath executed as far back as the 1st of December 1930, a mortgage, Ex. 3 in favour of Pravash Chandra Ghosh to secure the payment of a loan of Rs. 400/- only. Pravash assigned this mortgage to Sudhakar, defendant No. 1 on 24-11-1937. Sudhakar as the assignee of the mortgage filed against Bholanah a mortgage suit and this suit was numbered as Mortgage Suit No. 179 of 1938. Interest was claimed at 12 per cent. per annum and the whole claim was laid at Rs. 722/-. Although Bholanath filed a written statement he did not ultimately contest the suit and on 5-5-1939 it was decreed ex parte in a preliminary form, This decree was made final on 15-6-1939 and the execution case, viz., 343 of 1939 followed and the 'homestead in question was put up to sale in execution of the mortgage decree and purchased by the decree-holder Sudhakar on 22-11-1939. This mortgage sale was confirmed on 19-12-1941. On 22-12-1941, that is, only 3 days after the confirmation of the mortgage sale Bholanath died. On 24-7-1942 the sale certificate was granted to Sudhakar and on 6-8-3942 Sudhakar applied for substituting the 6 sons of Bholanath in the execution case and giving delivery as against all of them. This application is Ex. 16A. On 25-6-1S43, Sudhakar, the decree-holder auction-purchaser and defendant No. 1 took delivery of possession of the property and the report of the peon giving delivery of possession Ex. 8. On 24-2-1.544 Sudhakar executed, a kobala Ex. 4a in favour of defendants 2 and 3 in respect of the disputed property and there is a recital in this deed that he was transferring the property according to the previous compromise. After Bholanath's death all his sons were added in the execution proceedings so that before the delivery of possession was taken all the sons of Bholanath including the present plaintiff were on the record as representatives of the judgment-debtor.

(3.) Before however, the mortgage suit was instituted in 1938 Bholanath executed a deed o settlement Ex. 5 on 30-11-1937. By this deed of settlement, he gave the disputed house to all his eons except defendant No. 2 Bankim. Scarcely three months had elapsed from the execution of this deed of settlement when Bholanath himself Instituted a suit against the sons in whose favour he had executed the deed of settlement for setting aside this deed of settlement. This suit was instituted on 5-12-1937 and is Suit No. 256 of 1937. On 16-1-1939 there was an amicable settlement; between Bholanath on the one hand and those of his sons who were defendants in Suit No. 256 of 1937, that is, all the sons except defendant No. 2 Bankim. This amicable settlement is Ex. 12 and Clause It was filed on 16-1-1939. For the purpose of this litigation only two of its terms are relevant. The first is that if the plaintiff deposits in Court within 7 days of the solenama, that is, by 23-1-1939 a sum of Rs. 600/- then the deed of settlement executed by the plaintiff Bholanath on 30-S-1937 will stand cancelled and the title acquired by defendants Nos. 1, 2, 3, 4 that is, Bireswar, Sudhir, indubhusan and Surya would be destroyed. In default of payment, the deed of settlement in question would stand and the suit would be dismissed with costs. The second is that if Indubhusan, defendant No, 3, takes away his goods from the disputed house within 3 months from the date of the solenama he will be entitled to withdraw Rs. 600/- deposited by his father. The father deposited the money on 23-1-1939. and the suit was decreed in terms of the solenama on 23-1-1939, the decree itself being Ex. 1GP. Before however, this decree was passed a second deed of settlement was executed by Bholanath on 22-1-1939. This is Ex. D. In this deed of settlement the disputed house was given in equal shares to defendants 2 and 3 Bankim and Sudhir. There was another term in this second deed of settlement, namely, that Bholanath would be entitled to live till his death in a new room on the Northern side of the building on the ground floor and after his death that room will go to defendants 2 and 3 in whose favour the deed of settlement was made and if there was a partition as between them this room would go to that one of those two sons to whom this adjoining portion of the house might be allotted on partition. In 1941, the plaintiff filed Suit No. 49 of 1941 for setting aside the solenama Ex. 12 but that suit failed.