KULSON MALLICK Vs. MANOWARA MALLICK

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated 31st August, 1991 passed by the learned Assistant District Judge, ninth Court, Alipore, District South 24-Parganas in Title Suit No. 77 of 1984 whereby the learned Assistant District Judge has dismissed the suit.

(2.) THE short facts leading to the filing of the appeal are that defendant no. 1/respondent No. 1 herein became the owner of the suit property as described in the schedule of the plaint by way of a decree of partition. The plaintiff No. 1/appellant No. 1 herein is the wife of the defendant No. 1 and they were issueless. They adopted the plaintiff No. 2, nephew of the defendant No. 1, as their son when the plaintiff No. 2 was three/four days of age. The plaintiff No. 2 was brought up by them. There was a partnership firm between the plaintiff No. 2 and the defendant No. 1 under the name and style of National Brick Works and a partnership deed was created to the effect that the plaintiff No. 1 would get 25%, the plaintiff No. 2 would get 50% and the defendant No. 1 would get 25%. On 25. 07. 1983 the defendant No. 1 made an oral gift in respect of the suit property in favour of the plaintiffs and subsequently a deed of gift was made. Thus, the plaintiffs became the absolute owners of the suit property. The defendant no. 1 mixed with girls of ill-reputation and the plaintiff No. 1 protested in vain. Thereafter, the defendant No. 1 left the plaintiffs and begun to reside with one girl named Manowara Khatun. Thereafter in 1984, the plaintiffs were surprised by a notice in the Statesman Patrika to the effect that the suit property would be sold by the defendant No. 1 and so advertisement was made to receive protest, if any, within 10 days from the date of publication of the advertisement. Thus, the plaintiffs came to know that the defendant No. 1 was going to sell the suit property and so they have filed the suit for declaration of their right, title and interest in the suit property as well as permanent injunction restraining the defendants from interfering with the possession of the plaintiffs in respect of the suit property.

(3.) ON the other hand, the defendant No. 1, (since deceased) contended inter alia that he was the absolute owner of the suit property and that he was the sole proprietor of the brick field business. The plaintiff No. 1 is his wife; but they had no issue. They did not adopt the plaintiff No. 2 as their son. The partnership deed in respect of the said brick field was done under coercion, undue influence exercised by the plaintiffs upon him. He did not make any gift of the suit property in favour of the plaintiffs. Nor did he execute any Hiba deed as alleged by the plaintiffs. He collected rents from the tenants and he inducted tenants in the suit premises. He also filed suits for eviction against three tenants and these three tenants were paying rents to him. He married Musst. Manowara Khatun in 1981 and one child was born out of such second marriage in 1982. The defendant No. 1 and his second wife lived in the fourth floor of the suit premises. He also gave talak to the plaintiff no. 1. The plaintiff No. 1, in collusion with the plaintiff No. 2, threatened the defendant No. 1 with dire consequences unless he executed a deed of partnership in respect of the brick field and so a deed of partnership was prepared. The plaintiff No. 2 was brought up by the defendant No. 1 out of mercy since his father had no sufficient means to maintain his children. The story of adoption is totally false. Adoption is not permissible under the mahomedan Law. Upon consideration of evidence of both the sides, learned trial Judge has dismissed the suit. Being aggrieved, the plaintiffs/appellants have preferred this appeal.