KAMINI DASEE Vs. KRISHNA CHANDRA MUKERJEE

JUDGEMENT

(1.) This is a suit brought by a Hindu purdanashin lady to set aside a voluntary deed of gift in respect of 13 Mullanga Lane, which she had executed on the 15th July 1908 in favour of the defendant. The case made by her in the plaint is that the defendant "taking advantage of her age and infirmity and helpless condition, obtained from her this deed of gift which she executed without any independent advice, being fully dominated by the defendant and in violation of the trust and confidence reposed in him."

(2.) The defendant is the son of her husband s priest, and he has also been her priest since his father s death. The defendant accepted the position that the onus lay upon him to show the entire bond fides of the transaction, it being conceded by him that there was fiduciary relationship between himself and the plaintiff. The plaintiff s husband, Durga Charan Soor, died in June or July 1906. This property did not come to her through her husband, but it had been given to her by her father s sister from her own moneys, the property being purchased in the plaintiff s name. This house was, therefore, her stridhan property, and she held it in her own right. There is no question that she had a right of gift, if she chose to exercise it. Her husband had left him surviving some nephews, brother s sons who did not live in Calcutta, except one of them who stayed in the house of the plaintiff and another. Who used to come there from time to time. These persons were not her heirs. There has been a suggestion that the husband had desired the plaintiff to provide that after her death the property should go to the nephews, but that the plaintiff had declined to make any such provision. She however says that she intended to make this property debutter, and her husband s nephews were to be shebaits after her death and she was to be the "shebait or malik" daring her life time.

(3.) At the time of her husband s death, her mother was alive. The mother lived with the plaintiff, and it is said that it was her wish that the plaintiff should make a gift of the house to the defendant. The defendant says that lie had been told by the plaintiff that her mother had taken her to the Jagganath Temple at Puri and made her swear in the temple that, the property was to be made a gift of to the defendant. This story, however, the plaintiff denies. Her version is that he had on one occasion after the death of her husband, and also some little time before the execution of the deed, taken her to a room in her own house in Mullanga Lane where she used to keepl a Lachmi Thakurani and made her swear that this property was to be given to the defendant. There is direct contradiction with regard to this matter, and it is difficult to decide which of the two versions, or if either of them, is true. It may however be inferred from what has been said by them that she considered it would be a meritorious or religious act to give the property to her priest. She had been so told by the witness Khettra Mohan Bhattacherjee, to whom I shall have to refer later.