NIRMAL CHANDRA MODAK Vs. KSHETRA MOHAN MODAK

JUDGEMENT

(1.) This appeal by the plaintiffs arises out of a suit for a declaration that indenture, of sale dated the 2nd September, 1936, executed by Indra Bhusan Modak, husband of plaintiff No. 2, and father of plaintiff No. 1, was benami, without consideration, not acted upon and null and void. The plaintiffs further made a prayer for declaration of their title as owners of the properties described in schedules 1 and 2 of the plaint, for confirmation of possession and in the alternative for recovery of possession. The following genealogy can be had from the evidence of Lalbihari Modak (P. W. 1).

(2.) One Nagarbasi Modak had five sons, namely, Radha Charan, Haricharan, Rebati, Kshetro Mohan and Chandra Mohan. Giribala Modak (defendant No. 11) is the widow of Radha Charan whereas Nihar Ranjan Modak and Promode Ranjan Modak (defendants 9 and 10) are sons of Radha Charan Modak. Radha Charan Modak had another son, namely, Rashbihari Modak and he is the husband of Binapani Modak (defendant No. 8) and father of Ranjit Kumar Modak (defendant No. 7). Rebati Mohan Modak had two wives, named, Hiran Bala Modak and Brinda Rani Modak (defendant Nos. 3 and 4), besides two sons, namely, Chitta Ranjan Modak and Saroda Ranjan Modak (defendant Nos. 5 and 6). Hari Charan Modak had two sons, namely, Lalbihari Modak (P. W. 1) and Indra Bhusan Modak. Chandra Mohan Modak, 5th son of Nagarbasi Modak, is defendant No. 2.

(3.) The plaintiffs' case was that Indra Bhusan Modak was indebted and there were several decrees against him. Accordingly, he executed a mortgage bond (benami) in respect of the 'Modak Lodge', a house situated in the town of Deoghar, in favour of Manshapada Kundu at the instance of his uncles Rebati Mohan Modak, Kshetra Mohan Modak, Chandra Mohan Mo3ak and his cousin Rashbihari Modak, in order to save his properties from the hands of the creditors. This mortgage bond was dated the 29th September, 1934. Subsequently, Indra Bhusan Modak executed a deed of sale on the 2nd September, 1936, in favour of Rebati Mohan Modak, Kshetra Mohan Modak (defendant No. 1) Chandra Mohan Modak (defendant No. 2) and Rashbihari Modak5 but that deed as well was benami and no consideration passed. The object of that deed as well was to save the properties from the hands of the creditors. That sale deed was made over to Kshetra Mohan Modak (defendant No. 1) for safe Custody, inasmuch as Indra Bhusan Modak did not possess an iron safe. Promode Ranjan Modak (defendant No. 10) was entrusted with the duty of paying municipal tax and rent out of the income derived from the 'Modak Lodge' and the pro forma defendants Nos. 9 to 11 occasionally lived there as licensees under the plaintiffs. Indra Bhusan Modak died in 1942, leaving behind the two plaintiffs as his heirs. The plaintiffs later on asked the defendants to execute a deed of surrender in their favour by October 1947, and the latter agreed to do so but later on they failed to execute such a document in favour of the plaintiffs. Pro forma defendants Nos. 9 to 11 were temporarily residing in the Modak Lodge as licensees with the permission of the plaintiffs. In these circumstances the plaintiffs instituted the suit in forma pauperis for the reliefs already indicated.