SARAT SUNDARI DEBY Vs. RAM KINKAR RAI

JUDGEMENT

(1.) This appeal is in a suit for partition which was instituted by the plaintiff in the Court of the Subordinate Judge at Maldah on 13 August 1928. She claims 8 annas share in the properties, many in number described in three schedules annexed to the plaint, as heir of her deceased husband Tarun Ram Rai. Tarun Ram who was the eldest son of Bhaja Mohan died in November 1919, leaving him behind his widow, the plaintiff, and two married daughters, Ram Kumari and Ram Rupini. The defendant to the suit is Tarun Ram's younger brother Ram Kinkar. It is the common case of the parties that the properties in suit, except the Benares house, descended to Tarun Ram and Ram Kinkar on the death of their father Bhaja Mohan in 1897. Tarun Ram was a major then but Ram Kinkar who was younger to the former by about 13 years was at that time a minor. It is also the common case of the parties that Tarun Ram as karta managed the joint properties (called in these proceedings as the Harishchandrapur Estate, Barataraf) up to the year 1313 B.S. (1906-07). Whether Tarun was capable of managing or did manage thereafter is one of the important points in controversy. The Benares house was a gift to the two brothers from their paternal aunt Ananda Moyee.

(2.) On 12 Bysack 1320 (25 April 1913) four documents were executed and registered two days later. They are : (i) a patni patta executed by Tarun Ram in favour of Ram Kinkar (Ex. G II-93); (ii) a corresponding patni kabuliyat executed by the latter in favour of the former (Ex. G, not printed). By this transaction Tarun Ram purported to grant to his brother a lease in perpetuity of his undivided 8 annas share in all the zamindaries and in many lakhirajes, at a fixed annual rent of Rs. 16,473-5-7?. Deducting therefore the amount representing Government revenue and cesses the net munafa reserved in his favour was Rs. 12,000 a year. This was made payable in twelve equal monthly instalments. The salami was fixed at Rs. 25,000; (iii) a deed of gift by Tarun Ram in favour of his brother of his undivided 8 annas share in all the remaining properties, moveable and immovable, except the Benares house and the Debipur garden (Ex. H 11-101); (iv) a deed of release by Ram Kinkar in favour of Tarun Ram in respect of his undivided 8 annas share in the Benares house and in the Debipur garden (Ex. I, 11-107). The result of these transactions, if real and effectual, was that Ram Kinkar got all the properties, moveable and immovable, except the Benares house and the Debipur garden, subject to the obligation of paying annually a net sum of Rs. 12,000 to Tarun Ram and Tarun Ram got exclusively to himself the Benares house and the Debipur garden and the right to receive as patni munafa Rs. 12,000 annually, payable in equal monthly instalments of Rs. 1000; if these transactions be real and effective it is obvious that the plaintiff's suit for partition must fail. The plaintiff anticipated this apparent difficulty and so in her plaint she made the case that these transactions were void in law, as according to her, her husband was of unsound mind at the time, and that at any rate they represented paper transactions never intended to be acted upon. Seeing that after her husband's death she herself had taken proceedings to realize patni rent and had received from the defendant the said munafa on several occasions, she offers an explanation in several paragraphs of her plaint (paras. 7, 8, 9, 10, 16 and 19). The learned Subordinate Judge found that Tarun Ram was a man of eccentric habits but was never a lunatic and the transactions noted above were genuine ones, meant to be acted upon, and had in fact been acted upon. He accordingly dismissed the plaintiff's suit with costs.

(3.) In the appeal we have to consider two questions urged before us, namely (i) whether Tarun Ram was a lunatic at the material time, (ii) If not, are these transactions mere sham or benami ones? As the evidence bearing upon both the points is intermixed, we proceed to deal with them together.