PANNALAL BISWAS Vs. DILIP KUMAR MONDAL

JUDGEMENT

(1.) This Second Appeal is by the plaintiff and it arises out of a suit for declaration of the plaintiff's title to the properties described in the schedule to the plaint. The plaintiff's case in short is as follows :-- One Upendra Nath Biswas, the father of the plaintiff and defendants Nos. 3 and 4, was the owner of the disputed premises No. 22, Madan Paul Lane, Bhowanipore. Upendra died in 1340 B. S. leaving his widow Sinddhubala, a son, the plaintiff and two daughters, defendants Nos. 3 and 4. Sinddhubala is now dead. The plaintiff was a minor at the time of his father's death. Sinddhubala brought her brother, Prafulla Kumar Mondal to help her in the management and protection of the property on behalf of the minors after Sinddhubala lost her husband. Prafulla used to manage the property of the plaintiff. After the death of Sinddhubala, Prafulla was in sole charge of the family affairs of the plaintiff. Prafulla died sometime in the month of Bhadra, 1373 B. S. leaving the defendants Nos. 1, 2, 5 and 6 who are his heirs. In August, 1967 the defendant No. 2 gave out that the defendants have become the owners of the disputed property and the plaintiff thus became suspicious of the conduct of the defendant No. 2. Thereafter the plaintiff instructed one of the relatives to make a search in the Registration Office at Alipur and on 6-9-1967 he got a certified copy of the Deed of Settlement purported to have been executed by him in favour of Prafulla and one Khodanmani Dasi on 9-10-1945. The plaintiff was surprised to come to know the contents of the Deed that in order to give effect the last wish of the plaintiff's deceased father he created the Deed of Settlement. It was alleged that sometime in 1945 when the plaintiff was still a minor he sold some paternal property for the purpose of raising money in order to meet the marriage expenses of his sister the defendant No. 4. Taking advantage of the minority of the plaintiff Prafulla the maternal uncle obtained the Deed of Settlement. It was a fraudulent document obtained by mis-representation. It was further alleged that the said maternal uncle Prafulla was really a trustee for the plaintiff and as a trustee and guardian he used to manage the property and used to live in the plaintiff's family with the leave and licence of the latter. The plaintiff never intended to execute the Deed of Settlement which was never acted upon. On these allegations the plaintiff filed the suit for a declaration that the Deed of Settlement dated 9th October, 1945 is void and the defendants Nos. 1, 2, 5 and 6 had acquired no right, title and interest in the disputed property by virtue of the said Deed. The plaintiff also prayed for declaration of his title to the disputed property.

(2.) The suit was contested by the defendants Nos. 1, 2, 5 and 6. They filed a joint written statement alleging that the suit is barred by limitation. It was denied that the plaintiff was a minor at the time when the Deed of Settlement was executed. According to the defendants Upendra Nath Biswas brought his brother-in-law Prafulla when he was 6/7 years old. Prafulla was brought by Upendra as his son. Prafulla contributed a considerable sum of money towards the purchase price of the disputed property and for the marriage of his sister. He used to maintain the family of the plaintiff and to look after the litigation of the said property. Having regard to the services rendered by Prafulla the plaintiff's father during his lifetime expressed his intention for making some permanent settlement for Prafulla and his sister Khodanmani in respect of the property. The plaintiff's father died prematurely and he could not give effect to his last will but he left instruction for fulfilling his last desire. It was alleged that in pursuance of the last wish of Upendra the plaintiff executed the Deed of Settlement out of his will at a time when the was a major. It was alleged that the plaintiff was all along aware of the Deed since its registration. It was denied that the plaintiff continued in possession of the disputed property in spite of Deed of Settlement. It was alleged that the plaintiff not having asked for recovery of possession the suit is hit by Section 34 of the Specific Relief Act.

(3.) The trial court found that the possession of the disputed property is with the plaintiff and, therefore he was not required to pray for recovery of possession. Upon that view the trial court held that the suit was not hit by Section 34 of the Specific Relief Act. After considering the evidence adduced in the case the trial court came to the conclusion that the plaintiff was not a minor on 9th October, 1945 when he executed the impugned Deed of Settlement The trial court further found that the plaintiff did not intend to execute the Deed of Settlement and that he was not aware of the contents of the said document. The trial court, therefore, held that the document was not binding upon him. On the question whether prafulla contributed any money towards the running of the plaintiff's household the trial court found that the money earned by Prafulla from the shop which belonged to Upendra did not represent his income but it was the income from Upendra's shop. The trial court further held upon an interpretation of the disputed Deed of Settlement, Exhibit A that it was a Will and the plaintiff by instituting the suit had revoked the will. The trial court accordingly passed a decree in favour of the plaintiff. Against the decree of the trial court an appeal was taken to the lower appellate court by the defendants Nos. 1, 2, 5 and 6. The lower appellate court affirmed the finding of the trial court that the plaintiff was not a minor at the date of execution of the Deed of Settlement but differed with the other findings of the trial court. The lower appellate court found that the execution of the Deed of Settlement was not merely the plaintiff's physical act of execution but it was his mental act. The lower appellate court also took the view that the Deed of Settlement was a document inter vivoa and it was not a Will. The lower appellate court accordingly allowed the appeal and dismissed the suit. Against the said decision of the lower appellate court the present second appeal has been filed by the plaintiff.