NIRMALA SUNDARI DASSI Vs. DEVA NARAYAN DAS CHOUDHURI

JUDGEMENT

(1.) This is an appeal from a decision of the learned Subordinate Judge of Sylhet, dated the 30 June 1924, reversing a decision of the Munsif, Habigunj, dated the 29 May 1923. The plaintiffs, who are now the respondents, commenced the present suit to set aside a deed of gift executed by a lady of the name of Baisakha in respect of property which the plaintiffs alleges, was acquired by her with the surplus-income of her deceased son's estate. The plaintiffs claim as the reversionary heirs of Krishna Chandra Das Choudhuri, son of Baisakha, who inherited her son's estate after his death. The present suit was commenced about five years after Baisakha's death. The defence of the defendant to the suit is that she obtained this property by a deed of gift which was executed by Bisakha a short time before her death which took place in the year 1917. The property in question was purchased in the Dame of one Krishna Gobinda by Baisakha. The date of acquisition of this property does not appear from the record of the suit, but the fact that Baisakha purchased it in the name of Krishna Gobinda is relied on behalf of the defendant, who is the appellant before us, as showing the intention of Baisakha to keep it separate from the estate of her son,

(2.) The Court of first instance gave effect to the defence that the gift had been made by Baisakha and that although the property was purchased out of the surplus income of Baisakha's son's estate she treated it as her separate property and consequently she was in a position to make a gift of it. The Court of first instance accordingly dismissed the plaintiffs suit.

(3.) An appeal was carried to the Subordinate Judge of Slyest by the plaintiffs and the learned Subordinate Judge has thrown the burden on the defendant of showing that the property in dispute was property which Baisakha was entitled under the Hindu law to make a gift of. The learned Subordinate Judge states, and the passage is to be found at page 7 of the paper-book, that the defendant was doubly bound to prove the due execution of a document by a pardana-shin lady and also as a donee from a Hindu widow who had only life interest in the properties left by her husband and son, though the learned pleader for the respondent says that the burdent of proof is on the plaintiff.