SHYAM SUNDAR BHARTIA Vs. GOURISHANKAR BHARTIA

JUDGEMENT

(1.) THIS suit has been instituted by one Sitaram and Shyam Sun -dar Bhartia as joint owners inter alia for possession of 18 rooms in premises Number 75, Cotton Street, Calcutta more fully described in the plaint, mesne profits from July 24, 1959, until delivery of possession, an enquiry into damages if necessary, interest and costs.

(2.) THE case of the plaintiffs in the plaint in short is that one Omkarmal Bhartia the father of Gourishankar, Hari -shankar and Shivshankar Bhartia the present defendants Nos. 1, 11, and 13 had an undivided half share in the said premises. Upon his death in July 1951, the said property devolved or passed by survivorship to his widow Jaydeyi Bhartia one of the original defendants since deceased, and his said three sons and several grandsons by his eldest son Gourishankar. On or about July 14, 1952, the defendant No. 1 for self and as Karta of a joint Hindu family consisting of himself, his sons, his brothers Hari -shankar, Shivshankar and his mother Jaydeyi Bhartia, for valuable consideration and for legal necessity and benefit of the joint family sold their undivided half share in the said premises to Messrs. Lionel Edwards Private Ltd., hereinafter referred to as the defendant company. It is further alleged that the defendant company on April 22nd, 1953, caused a suit being suit No. 1195 of 1953 to be instituted for partition of the said premises (Lionel Edwards Pvt. Ltd, v. Sitaram Bhartia and Ors.) and a preliminary decree was passed therein. The Commissioner of Partition having found the premises incapable of being partitioned by metes and bounds in accordance with the shares declared, by a conveyance dated September 25, 1958, the defendant company conveyed its said share in the said premises to Sitaram Bhartia the original plaintiff No. 1 herein, for valuable consideration. Sitaram Bhartia, died intestate on February 25, 1964, and cm his death his heirs and legal representatives along with the plaintiff No. 2 became the joint owners of the said premises. It is alleged that the defendant No. 1 for self and as Karta of his branch and the other defendants except Shivshankar Bhartia and the defendant company are in wrongful occupation of 18 rooms in the said premises and in spite of demands have not vacated the same. No relief is claimed against Shivshankar and the defendant company who have been, made pro forma parties to the proceedings.

(3.) JAYDEYI the widow of Omkarmal Bhartia filed a separate written statement as well as an additional written statement. She denied that the sale of the share of the said premises to the defendant Company was for proper or adequate consideration and alleged that the debts of the defendant No. 1 were immoral and of an illegal nature and that there was no legal necessity for the sale. It is alleged further that she was compelled to execute the said conveyance without receiving any consideration therefor under the undue influence and duress on the part of her three sons who had incurred heavy debts in speculative transactions in their business and that the father -in -law of her youngest son viz., Gopi Kishen Khemka was in a position to dominate her will. It is further alleged that the defendant No. 1 threatened to commit suicide if she did not execute the conveyance. The said conveyance was never intended to be acted upon nor was in fact acted upon. It is alleged that the conveyance is invalid, inoperative and unenforceable against her. It is alleged further that Sitaram acquired nothing under the conveyance dated September 25, 1958.