SARBAMOHAN BANERJEE Vs. MONOMOHAN BANERJEE

JUDGEMENT

(1.) In this appeal which the plaintiff has preferred from a decree and a decision by which the Additional Subordinate Judge of Dacca has almost entirely dismissed his suit, two questions have been raised. The plaintiff is the eldest son of one Hara Mohan Banerjee by his predeceased wife. The defendants Nos. 1 to 3 are Hara Mohan's sons by Kulakamini (second wife) who is defendant No. 4. The plaintiff prayed for partition of certain immovable properties, to wit, two houses and some movables of the value of Rs. 5,695. The Subordinate Judge held that the two houses had been made a gift of by Hara Mohan in favour of his wife, defendant No. 4 and that as regards the movables the plaintiff had failed to make out his case. He accordingly dismissed the suit for partition and gave a decree to the plaintiff for Rs. 10-8 only on the defendants admission that there was an old iron safe a of the value or Rs. 42 in existence as the only item of joint family movable property. The two questions raised relate to its the validity of the gift and 2nd the existence of the movables.

(2.) The gift is evidenced by a deed written in its entirety by Hara Mohan himself and he personally took it to the registration office and had it registered there. The validity of the deed has been questioned-upon several grounds, with which we now propose to deal.

(3.) The first ground urged is that Hara Mohan was not of sufficient mental capacity or a Any rate was subject to undue influence. Hara Mohan was a teacher by occupation. The plaintiff put down his age at 85 or 88 years, he himself, being as he says, 50 years of age. Though this may be absolutely correct Hara Mohan undoubtedly was an old man. The evidence nevertheless is that, he was working as a private tutor in certain families. The deed was executed on the 14 January, 1924, and was registered on the next day. The post cards Ex. A series were admittedly written by Hara Mohan in December, 1923-February, 1924, and they clearly show that he was in a normal state of mind even after more than a month of the transaction. He died on the 25 March, 1924. The oral evidence about the state of his mental capacity at and about the time of the transaction is clear and positive, A final attempt has been made by the plaintiff through his witness P.W. No. 2 Prafulla to make out that Hara Mohan had lost his memory, but temporary forgetful-ness of the mind of the kind spoken to by that witness is not sufficiently indicative of want of mental capacity. So far as undue influence is concerned there is no suggestion in the evidence, far less any proof, excepting a story which P.W. No. 2. Prafulla has given, but which we cannot accept as true.