KAMALA BALA GHOSH Vs. KANCHAN BALA GHOSH

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree passed by learned Civil Judge (Senior Division), 1st Court, Burdwan in Title Appeal no. 103 of 2000 affirming, thereby the judgment and decree passed by learned Civil Judge (Junior Division), 1st Court, Burdwan in T. S. No. 104 of 1997. The suit was instituted for declaration of plaintiffs title in the suit property as described in Schedule 'a', permanent injunction and for a further declaration that the deed described in Schedule 'b' was void, inoperative, an outcome of misrepresentation and fraud.

(2.) THE case of the plaintiff/appellant, in short, is that the property described in 'a' schedule of the plaint, originally, belonged to Madan Mohan ghosh and Kenaram Ghosh each having moiety share along with some other properties. Subsequently, amongst the heirs there was a partition deed and the plaintiff has 5/24th share in the suit property. Swapan Kumar ghosh, the son of the plaintiff died leaving a widow i. e. defendant No. 1. The defendant No. 1 became a widow at her younger age. The defendant no. 1 by her apparent good conduct and behaviour picked up great reliance of the plaintiff. The plaintiff is an illiterate aged woman having no worldly knowledge and, as such, had to depend on the advice of the defendant no. 1. The defendant No. 1 taking advantage of the plaintiff's helpless condition, in collusion with defendant No. 2, asked the plaintiff to execute a registered power of attorney on the plea of looking after the properties of the plaintiff. Thus the defendant No. 1 in collusion with defendant No. 2 got a deed of 'nirupan Patra' scribed by her own men and got it executed by the plaintiff stating that it was a power of attorney. The plaintiff on good faith put her L. T. I. on the said deed and the plaintiff was also tutored to admit her execution of the deed before the Sub-Registrar. The contents of the deed were not read over and explained before the plaintiff. Subsequently, the defendant No. 1 married one Lakshmi Narayan Ghosh for the second time and left the plaintiff's house and started residing with her husband in the same village. On and from 10. 12. 1997 the defendant threatened the plaintiff with dispossession from 'a' scheduled properties on the plea that those properties did not belong to the plaintiff. On an enquiry, the plaintiff came to learn that instead of a power of attorney one 'nirupan Patra' was managed to have been executed by the plaintiff on 18. 5. 1989 in favour of the defendant No. 1 in respect of 'a' scheduled properties. The plaintiff never intended to execute any 'nirupan Patra' in favour of defendant No. 1. The deed was vitiated by undue influence and misrepresentation. The contents of the impugned deed were never read over and explained to the plaintiff. For the said reasons, the suit was instituted by the plaintiff in the learned Court below.

(3.) THE defendant No. 1 contested the suit by filling written statement. The defendant No. 2, the son of the plaintiff also filed another written statement supporting the case of the defendant No. 1.