BIMAN ROY Vs. SMT. USHARANI MITRA

JUDGEMENT

(1.) This appeal is directed against the appellate decree affirming the decree passed by the learned Subordinate Judge, 4th Court Alipore in Title Suit No. 65 of 1979 of the said court. The facts of the case lie in a short compass.

(2.) One Amulya Chandra Chowdhury, father of the plaintiff Usharani and husband of Nirmal Nalini, since deceased, by his last will dated 3rd December 1923 ext. A bequeathed to his wife cash, security and two houses-one at Sewan and the other at Calcutta. So far as the Calcutta property is concerned which was situated at 27/3, Russa Road and since renumbered as 34 Ashutosh Mukherjee Road, Nirmal Nalini was given only a life interest. After the death of her husband in Dec. 1923. Nirmal Nalini, who was appointed the sole executrix by the will, took out the probate and enjoyed the legacies till her death on 3rd Nov., 1971. Before her death she had executed and registered a Deed of Settlement on 31st Jan., 1969 Ext. 1 appointing herself and the plaintiff as the joint trustees. In July 1979 the plaintiff filed a suit against the defendant Biman Roy and prayed for recovery of khas possession and damages on the allegations inter alia that the defendant was a trespasser and that he was in wrongful occupation of the suit premises since May 1979.

(3.) The defendant resisted the plaintiffs prayer for eviction on the grounds that under the terms of the will Nirmal Nalini got only life interest in the disputed property , that upon her death her son Bejoy Krishna became the absolute owner of the said property and that the defendant, while in possession of the suit property, entered into an agreement for sale with Bejoy relating to the said property by a document dated 3rd July 1978 exTB.