ISWAR RADHA KANTA JEW THAKUR Vs. GOPINATH DAS

JUDGEMENT

(1.) This is a suit to challenge the alienation of a defaulter property. The debutter was created by one Mokshadamoyee Desi by two Arpannamas. She appointed herself as the first shebait and certain named persons as subsequent shebaits. Thereafter, the shebaity was to devolve on the nephew of the settlor one Sital Chandra Das and his heirs. The shebaity devolved on Sital sometime in or about 1944, During the life time of Sital's shebaity, the debutter property was sold. Sital died in or about February 1956. His only daughter Molina Hazra as Sital's heir became the next shebait. This suit has been instituted by her for self and as the next friend and shebait of the deity. The parties impleaded are a number of persons who dealt with the debutter property.

(2.) The plaint sets out all facts leading ultimately to the sale of debutter property. Sital as shebait created a lease in favour of the defendant Gopinath Das on a monthly rent ot Rs. 5/-. The lease records the payment of Rs. 2,500/- as selami. Gopinath subsequently assigned the lease to the defendant Nemai Chand. The defendant Rajen Sen purporting to act as the next friend of the deity instituted a suit against Sital for framing a scheme of management of the debutter property and of carrying on the Debseva. In that suit a consent decree was passed whereby a trustee was appointed with authority to create a mortgage of the debutter property. The defendant Phanilal as such trustee created a mortgage in favour of the defendant Nimai Chand. Ultimately in a suit inter alia to enforce the mortgage, the property was sold and the defendant Upendra purchased the premises. It is alleged in the plaint that the lease and the mortgage was fraudulent and Without consideration and the deity was not benefited either by the lease or by the mortgage, that the suit instituted by Rajendra wag fraudulent, that Rajendra was not entitled to act as the next friend of the deity and that the decree was not binding on the deity, that the suit originally instituted by the Calcutta Corporation to enforce a statutory charge in which the defendant Nimai Chand was subsequently transposed as a plaintiff, was also fraudulent, that the deity was not properly represented and its interest not properly protected in this suit and that as such the decree was not binding on the deity. The defendant Upendra is alleged to have purchased with full knowledge of the above facts, A number of declarations has been claimed as to the invalidity of each of the above acts and there are prayers for setting them aside. There are prayers for injunctions and damages as well.

(3.) The defendant Rajen Sen did not file any written statement. The defendant Phani Lal and Nemai filed a joint written statement and the defendant Gopinath and Upendra filed separately their own written statements. Gopinath in his written statement has denied all allegations of fraud and conspiracy alleged against him. He has further denied having obtained any lease from Sital or effected any assignment of the said lease in favour of the defendant Nemai. He denies that the signature in the lease and assignment are his signature. He has further denied to have paid any consideration for the lease or to have received any consideration for effecting the assignment. In paragraph 23 it is pleaded that Gopinath "never had anything to do with the subject matter of the suit and that he has been unnecessarily brought in this suit with ulterior motive."