HEMLAT BAKSHI Vs. SEKHAR NATH BAKSHI

JUDGEMENT

(1.) I have gone through the draft judgment of my learned Brother. I agree with the conclusion arrived at by his Lordship. However, I wish to add words to the same. This appeal was originally preferred by one Hemlata Bakshi, the appellant abovenamed, against the judgment and decree dated 14th June, 1995 passed by the learned Assistant District Judge, 2nd Court, Contai. By the decree impugned the suit filed by the original appellant was dismissed. Original appellant filed this suit for declaration that she had title in respect of (ka) schedule properties acquired by the deed of family settlement and the defendant No. 1 has no title in respect of the same and that the ex parte judgment and decree passed on 10th April, 1972 and 20th April, 1972 respectively in Title Suit No. 124/71 in the 1st Court of Munsif at Contai filed by the plaintiffs husband late Kalipada Bakshi against the plaintiff are mala fide, fraudulent, purposive, illegal and vitiated by fraud and the same is not binding on the plaintiff and alternatively for decree for cancellation of the same.

(2.) The sum and substance of the case made out in the plaint is stated herein : The plaintiffs husband one Kalipada Bakshi was a renowned local Lawyer and acquired considerable wealth which includes large property in the town of Contai during his lifetime. The said Kalipada Bakshi in order to distribute and settle his properties amongst his wife and sons by and under a registered deed of family settlement dated 21st September, 1956 gave away amongst other his dewlling house in mouza Hatabari within the town of Contai along with other properties to the plaintiff and the defendants. The description of the said properties given to them are mentioned in (ka) schedule of the plaint. According to the plaintiff since the date of registration of the said family settlement the plaintiff and the defendants of the instant suit have been enjoying and possessing the same. The said family settlement was acted upon in all respects by incorporating names of the persons in the settlement record under the appropriate provision of the law. Similarly in the municipal records the said family settlement was placed for taking follow-up action and accordingly the names of the persons who are beneficiaries were mutated in the municipal records. In fact the said properties were also mortgaged for obtaining loan from the Co-operative Bank, Contai Branch. After repayment of the loan when the original deed of settlement was sought to be taken back the plaintiff came to know that the said deed was taken back earlier by the first defendant and kept in his custody. The plaintiff has been realizing rents from the tenants of the dwelling house situated in the town of Contai acquired by the deed of family settlement. When the plaintiff wanted to execute a registered deed of family settlement in respect of the bastu land possessed by the defendant by a verbal settlement and called the defendant for sitting on 12th December, 1991 she for the first time came to know from the first defendant that she had no right to make settlement of the properties. It was represented by the first defendant that it was declared and held by the Court long ago that the said earlier deed of family settlement was acted upon and as such it was cancelled in a suit filed by the plaintiffs husband late Kalipada Bakshi and thereafter the said Kalipada gifted the properties to the first defendant. The said decree was passed on 12th December, 1991 exparte in the Title Suit No. 124/1971 filed by the late husband of the plaintiff amongst other against the plaintiff and other persons who are beneficiaries of the family settlement which includes the defendant No. 5 herein. Thereafter, the plaintiff duly obtained the certified copy of the judgment and decree of the earlier suit as well as the copy of the plaint on or about 21st December, 1991. She came to know for the first time that her husband filed collusive suit making her party to the said suit. It is alleged that the plaintiff was not informed about the said suit and writ of summons of the said suit was not served on her. The said Kalipada since deceased being a Lawyer of the local Court in collusion with the first defendant who was and still is an Advocate of the same Court, could bring the peon under their control and caused him to write a false report to the effect that the writ of summons of the said suit was served. Thereafter ex parte decree was obtained by suppressing the fact that the said deed of family settlement was acted upon. Thus the Court passed ex parte judgment and decree on 10th April, 1972 and 20th April, 1972. It is further alleged that upon misrepresentation being made and fraud being practised the plaintiffs husband could have managed to keep the entire proceedings of the said suit secret, so much so the plaintiff remains unaware of the same, and had an exparte decree passed. The factum of the said family settlement being acted upon by the husband was suppressed and after 2 years the said family settlement was sought to be cancelled. It will appear from the plaint of the earlier suit that the suit was barred by limitation. The plaintiffs husband and the defendant No. 1 in collusion with each other influenced the process server and thereby procured a report of the refusal of service of writ of summons by the plaintiff. There was no occasion for the plaintiff to refuse to accept any summons as it was never attempted to be served. Moreover at the time of the fling of the suit and further passing of the decree defendant No. 5 S.N. Bakshi was minor and it was falsely represented before the Court as being a major making him party to the suit, and he was not represented by the independent person as guardian.

(3.) The instant suit was contested by filing written statement by the first defendant, Sekhar, no other defendant had come forward to file any written statement. The defence taken in the written statement is that the suit is not maintainable and, is hopelessly barred by limitation. The plaintiff has neither cause of action nor the same has been disclosed at all. It is alleged further in the written statement that the plaintiff was all along aware of filing of the suit and also the ex parte decree passed in Title Suit No. 124/1971 and such fact of knowledge will be apparent from the fact that the said late Kalipada filed a mutation case relying on the said decree and the plaintiff filed objection against the same through the learned Lawyer. Thereafter, she too filed mutation case with the help of the same Advocate wherein she stated that she had no title in other properties left by Kalipada. She consented to mutation being effected on the application of Kalipada. The plaintiff is informed of this mutation, now she is estopped from making any submission contrary to the same. That apart plaintiff had no title or ownership in the properties left by late Kalipada Bakshi by reason of the fact that after the said deed of settlement having been declared cancelled, the plaintiffs husband and defendants father late Kalipada Bakshi by a registered Will executed on 30th December, 1975 bequeathed the properties in question along with other properties to the plaintiff and their five sons the defendant Nos. 1 to 5 separately by separate schedule. In terms of the said registered Will the defendant Nos. 2 to 4 before receiving the property applied for mutation in their names in the records of Contai Municipality and thereby separate holdings were created. Afterwards the plaintiff also applied for mutation of her name in the Municipality of Contai and the same is pending for disposal as Mutation Case No. 49/1990-91. However, late Kalipada Bakshi revoked the said Will for part of earlier disposition, by registered deed of gift partly, and by a deed of gift executed on 2nd August, 1977 he transferred suit properties along with some other properties in favour of the first defendant and became fully divested of the same and delivered possession in favour of the first defendant. Thus the first defendant is the absolute owner and has been possessing the same by mutating his name in the Municipality of Contai and paying rates and taxes. The suit is also barred by limitation.