BIKASH KUMAR MUKHERJEE Vs. NANDA RANI MUKHERJEE

JUDGEMENT

(1.) This is an appeal against the judgment and decree passed by Shri S. K. Ghosh, Judge, 7th Bench, City Civil Court, Calcutta dated 28th Jan. 1976, in Title Suit No. 91 of 1971. The plaintiffs are the appellants in this Court.

(2.) The plaintiffs brought a suit for recovery of khas possession upon declaration of title and for other reliefs. The dispute is in respect of two properties, namely, premises No. 36, Nabin Sarkar Lane, and 45, Baghbazar Street, Calcutta. The former is a two storeyed pucca building and the latter is a thika tenancy consisting of about 10 rooms of which some are in the occupation of tenants. It is the plaintiffs' case that both the suit properties originally belonged to one Benoy Mukherjee who died in 1946 leaving his two sons Bijoy and Basanta as his sole heirs. Basanta died unmarried in Aug. 1969 leaving his brother Bijoy as his sole heir. On Bijoy's death in 1970 his sons Bikash and Bivash, plaintiffs Nos. 1 and 2 and the children and widow of Bijoy's predeceased son Biman inherited his properties. They are plaintiffs Nos. 3 to 5. All the plaintiffs are in khas possession of the entire premises No. 36 Nabin Sarkar Lane. Defendant No. 1 Sm. Nandarani Mukherjee is the mother and guardian of the minor childern (defendants 2 to 5.) She was a concubine of Basanta Mukherjee and lived with him and her children at 45, Baghbazar Street, Calcutta, till Basanta's death. They have no right, title and interest whatever in any of the suit properties. But defendant No. 1 fraudulently obtained a certificate of guardianship in respect of person and properties of defendants Nos. 2 to 5 under Section 10 of the Guardians and Wards Act from the City Civil Court. Calcutta on 12-12-69 in Act VIII Case No. 28 of 1969 falsely claiming that the minors are heirs of Basanta Mukherjee. The plaintiffs, in the circumstances, prayed for a declaration of their 16 annas titles in both the suit properties upon a finding that the above guardianship certificate granted to defendant No. 1 is null and void and not binding upon the plaintiffs. They also prayed for recovery of khas possession of premises No. 45, Baghbazar Street, Calcutta.

(3.) The defendants contested the suit and denied all the material allegations of the plaint. The defence is that premises No. 45, Baghbazar Street belonged to Basanta exclusively and not to his father Benoy, that defendant No. 1 Nandarani is the legally married wife of Basanta and that defendants Nos. 2 to 5 are their legitimate children, that Bijoy never inherited Basanta's property. The defendants inherited the entire premises No. 45, Baghbazar Street from Basanta and undivided half share of premises No. 45, Nabin Sarkar Lane and that the guardianship certificate in Case No. 28 of 1969 had been obtained by the defendant No. 1 with due notice to the plaintiffs and without practising any fraud or misrepresentation as alleged by the plaintiffs and that the said certificate is binding on the plaintiffs. The learned Judge found on evidence that the defendant No. 1 Smt. Nandarani Mukherjee is the legally married wife of Basanta and their children are all legitimate ones. Consequently, the defendants are Basanta's heirs and that the plaintiffs' predecessor Bijoy did not inherit any property of Basanta. The learned Judge consequently found that the plaintiffs have no right, title and interest in the premises No. 45, Baghbazar Street. It was also found that they did not inherit any interest in the undivided half share of the property, namely, 36, Nabin Sarkar Lane which originally belonged to Basanta. It was further found that the defendants are sole and exclusive owners of half share of 36, Nabin Sarkar Lane and are owners of full share of 45, Baghbazar Street. It was also found by the learned Judge that the guardianship certificate obtained by defendant No. 1 could not be held to be illegal or void in any way. In the result, the suit was decreed in part. It was declared that the defendants are co-sharers of the plaintiffs in respect of the disputed premises No. 36, Nabin Sarkar Lane to the extent of undivided half share only. The plaintiffs' other claims were 'dismissed. It was ordered that the defendants would get full cost of the suit from the plaintiffs. Being aggrieved, the plaintiffs have come up in appeal.