UMARANI SAHOO Vs. RAJANI KANTO PAL

JUDGEMENT

(1.) One Akshaya Kumar Pal, since deceased (hereinafter referred to as the deceased or Akshaya), was the original Plaintiff in this suit. Akshaya by his first wife had a daughter of the name of Umarani who happens to be the present Plaintiff in the suit. After the death of his first wife Akshaya married one Parulbala, who was the second wife of Akshaya and who had no issue. Premises No. 100 Tarak Pramanik Road (hereinafter referred to as the said premises) forms the subject matter of the dispute in the present suit. The said premises, it appears, had been originally purchased in January 1944 in the names of Rajani Kanta Pal, Kamala Kahta Pal and Birendra Kanta Pal, the Defendants Nos. 1, 2 and 3, who conveyed and transferred the said property by a registered deed of gift dated July 6, 1946, to Parulbala, wife of Akshaya. The Defendants Nos. 1, 2 and 3 happen to be the brothers of Parulbala and also of Dalimbala, the Defendant No. 4 herein, and Dalimbala Dasi is a sister of Parulbala. Parulbala appears to have executed a deed of settlement on December 26, 1952, and by and under the said deed of settlement Parulbala appointed herself and her sister Dalmibala as the trustees and conveyed the said premises No. 100 Tarak Pramanik Road in trust for the objects mentioned in the said deed of settlement. The main provisions of the said deed of settlement appear to be that Parulbala and her sister Dalimbala would be the trustees under the said trust and Parulbala and Akshaya would have life interest in the property and after the death of Parulbala the property, namely the said premises No. 100 Tarak Pramanik Road, would go to Dalimbala absolutely. Parulbala died on December 18, 1953. The present suit was instituted by Akshaya on December 6, 1954.

(2.) Akshaya instituted the present suit for a declaration that Akshaya was the real owner of premises No. 100 Tarak Pramanik Road and the Defendants Nos. 1, 2 and 3 and Parulbala, the wife of Akshaya, were the benamders of Akshaya, for a declaration that the purported deed of settlement dated December 26, 1952, executed by Parulbala, is invalid, inoperative and of no effect, for cancellation and delivery up of the said deed of settlement and for other relief 's. The materials averments in the plaint on the basis of which Akshaya filed this suit may be indicated. In para. 1 of the plaint Akshaya describes the nature of relationship between the parties. In para. 2 Akshaya states that he being a person of very extravagant nature intended to purchase a house property in the benami name of his wife Parulbala, the idea being to preserve such property in the benami name of his said wife. In paras. 3, 4 and 5 of the plaint it is alleged that Akshaya was an illiterate person and instructed the Defendants Nos. 1, 2 and 3 who were the brothers -in -law of Akshaya and in whom Akshaya had implicit faith and confidence to purchase the premises No. 100 Tarak Pramanik Road in the benami name of his wife Parulbala and he made over to his wife Parulbala and the Defendants Nos. 1, 2 and 3 a total sum of about Rs - 11,000 by January 3, 1944, to cover the costs and consideration money for the purchase of the said premises No. 100 Tarak Pramanik Road. It is stated in para. 6 of the plaint that the Defendants Nos. 1, 2 and 3 represented to Akshaya that the said premises No. 100 Tarak Pramanik Road had been purchased in the benami name of his wife Parulbala Pal, and in para. 7 of the plaint it is alleged that in or about the middle of the year 1946 Akshaya discovered that the said premises was purchased in the joint names of the Defendants Nos. 1, 2 and 3 in breach of the aforesaid instructions and/or request of Akshaya. It is averred in paras. 8, 9 and 10 of the plaint that thereafter Akshaya asked the said Defendants Nos. 1, 2 and 3 to re -convey the said property to the said Parulbala Pal and threatened the said Defendants that, unless such transfer was effected, he would take appropriate proceedings against the said Defendants and thereupon the said Defendants Nos. 1, 2 and 3 entreated the said Akshaya not to take any proceedings against them and promised to re -convey the said premises to the said Parulbala Pal and the said Defendants on or about July 6, 1946, purported to execute a deed of gift in favour of Parulbala Pal in respect of the said premises No. 100 Tarak Pramanik Road. It is further alleged that Akshaya Pal being an illiterate person could not and did not understand the contents of the said deed of gift and not being versed in legal technicalities agreed to that course in good faith and under the bona fide belief that such transfer would sufficiently protect his right, title and interest in respect of the said premises No. 100 Tarak Pramanik Road. In para. 11 of the plaint it is alleged that the said Akshaya Pal at all material times and until his death was in possession and enjoyment of the said premises No. 100 Tarak Pramanik Road as owner thereof and the said premises was purchased with Akshaya's money and the same stood in the benami name of Parulbala, wife of Akshaya. In paras. 12 and 13 of the plaint it has been alleged that Parulbala died intestate on or about December 18, 1953, leaving Akshaya, her husband, as her heir under the Dayabhaga School of Hindu Law, and since the death of Parulbala, Akshaya had been enjoying the said premises No. 100 Tarak Pramanik Road as before until his death on May 18, 1957. In paras. 14, 15 and 16 it has been stated that immediately after the death of Parulbala, Dalimbala, the Defendant No. 4, has been alleging that she is a trustee under a deed of settlement dated December 26, 1952, purported to have been executed by Parulbala and, as such, the said Defendant No. 4 is setting up a title to the said premises and the rents thereof. After December 18, 1953, Akshaya had made enquiries and had come to know for the first time that the Defendants in collusion and conspiracy with each other had made various false and untrue allegations in the said deed of gift dated July 5, 1946, made by the Defendants Nos. 1, 2 and 3 in favour of Parulbala and following particulars of the alleged false and untrue statements are mentioned in para. 15:

(3.) Akshaya died in the year 1957 when the suit was pending in this Court. After the death of Akshaya, Umarani, his married daughter and only child, substituted herself in place of Akshaya as Akshaya's only heir and legal representative in the suit with consequential amendments in the plaint and the records of the present proceeding. Umarani, as the present Plaintiff, is prosecuting this suit which though instituted in the year 1954 has come up for disposal in the year 1969.