KUNJA BEHARI BASU Vs. RASIK LAL SEN

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff for declaration of his title to 4 annas share in the lands of Dag No. 836 and to 8 annas share in the lands of Dags Nos. 161, 1-75, 283 and 316 of the settlement map of Mouza Basur Dhuljuri and for joint possession of the first plot with defendants 3 and 4, and of the other plots with defendant 3 who according to him are respectively the owners of the remaining shares. The plaintiff's case is that 8 annas share of the first plot and 4 annas share of the remaining plots belonged to one Parbati Charan Roy who died in 1327 B.S. intestate, leaving behind him surviving his widow Sukhada Sundari and two daughters Pramada and Giribala. On his death his widow Sukhada Sundari inherited his properties and possessed the same till her death which occurred in the year 1334. On Sukhada Sundari's death Promada and Giribala inherited the properties and on 22nd November 1929 sold the same to him for legal necessity by the Kobala Ex. 3. Giribala executed the kobala both on her own behalf and also on behalf of her minor son Haripada Dutt and Narendra, the son of Promada, also joined in the document. In the said conveyance a property at Goalanda owned by Narendra was also included, but this fact is no longer of importance, because the question of the validity of the registration of Ex. 3 at Goalundo which was mooted in the lower Courts is not ultimately pressed before me.

(2.) In the plaint the plaintiff admits that Sukhada Sundari had executed a conveyance (Ex. A) in respect of the lands in suit in favour of defendants 1 and 2 on 23 January 1924, but the plaintiff challenged the same as being without consideration and further stated that in any event, the said sale was not for legal necessity, and therefore not binding on his vendors. Defendants 1 and 2 who are the contesting defendants stated inter alia in their written statement that the conveyance Ex. A (which was taken in the name of defendant 1 for the benefit of both of them) was for consideration and for legal necessity, that Promada and Giribala were brought to their mother's place by Narendra and had at the time of execution of Ex. A consented to the sale. They maintained that in any view of the matter the plaintiff who has derived his title from the said ladies cannot maintain his suit against them. On Ex. A, there is an endorsement in these words: I, Sm. Promada Sundari Das Roy, and I, Sm. Giribala Dutta both having consented to this sale, become witness to the deed. Writer of the Consent Narendra Nath Das Roy. Promada Sundari Das Roy of Ratandia, (Finger mark) Giribala Dutta of Balichar, Written by Narendra Nath Das Roy.

(3.) The learned Munsif in an elaborate judgment doubted the payment of consideration and found that there was no legal necessity for the sale by Sukhada Sundari to defendant 1. He also found that Pramada Sundari and Giribala did not come over to the house of Sukhada at the time of execution of Ex. A, did not consent to the said sale, and that the contesting defendants had failed to prove that the signature and thumb impression on the Kobala Ex. A purporting to be of Promada Sundari and Giribala respectively were not theirs. He also found that Narendra was barely 14 years old at the time and could not have taken the part assigned to him by the defendants. At p. 7 of his judgment the Munsif however makes a remark that the Kobala Ex. A would not be binding on the daughters of Parbati unless it was proved that they consented to the sale. I notice this observation because it gives an indication of the defendants case as made in the Munsifs Court. Their case is based on two grounds namely; (i) that the plaintiff cannot recover possession from them as the sale to them by Sukhada was for legal necessity; (ii) assuming that no legal necessity was established for the said sale, the sale was voidable at the instance of the daughters who cannot avoid it as they had consented to it. The plaintiff, they say, having a derivative title from the daughters, stands on the same plane as the said daughters. On the basis of the findings which I have indicated above the learned Munsif decreed the plaintiff's suit. Defendants 1 and 2 preferred an appeal which was heard by the Subordinate Judge of Jessore. The said Judge after summarising the case of the respective parties and the material findings of the learned Munsif proposed to himself the points that ho had to decide. The first is formulated by him in these words: (1) Did Promada Sundari Das Roy and Girikala Dutt give their written consent to the sale by Sukhada Sundari to defendant 1? If so are they estopped to raise the question of legal necessity for the sale by Sukhada Sundari and to question the validity of the sale? If the case of consent be true whether Promada Sundari and Giribala had any right to sell the same properties again to the plaintiff and whether the plaintiff has got any right in the disputed land.