HARENDRA NATH MUKHERJI Vs. HARI PADA MUKHERJI

JUDGEMENT

(1.) One Khagendra Nath Mukherjee, a Hindu, governed by the Dabhayaga School of Hindu law, was the owner of premises Nos. 3 and 12 Mal Road, Dum-Dum, which are the subject- matter of dispute in these two appeals. He was also the owner of certain other properties. He died leaving him surviving a widow Bidhu Mukhi Debi, who will be referred to as "the widow" and a daughter Hem Lata Debi. Hem Lata died during the lifetime of her mother leaving three daughters Nantu Bala, Abir Bala and Amiya Bala. Nantu Bala was married to one Haripada Mukherjee (herein called "defendant"). Harendra Nath Mukherjee, Harihar Mukherjee, and Amarendra Nath Mukherjee are the three grandsons (son's sons) of the brother of Khagendra. They are the reversionary heirs of Khagendra and will be hereafter referred to as the reversioners. On 16 April 1921, the widow executed a Kobala (Ex. 1) in favour of Haripada purporting to sell premises No. 3 Mal Road to him for a consideration of Rs. 7000. On 25th April 1921. the widow executed another Kobala (Ex, 1-a) in favour of Haripada purporting to sell premises No. 12 Mal Road for a consideration of Rs. 5000.

(2.) On 1 March 1930, Harihar and Amarendra instituted a suit in the Court of the Subordinate Judge of 24-Parganas for a declaration that the said two Kobalas were not binding on them impleading the widow, Haripada and Harendra as defendants in the suit. They alleged inter alia (a) that the monthly income of the estate left by Khagendra was at least Rs. 500 and that after meeting all the necessary expenses of the widow there was always a sufficient surplus; (b) that Harendra was their stepbrother and that they were on bad terms with him; (c) that Harendra on account of this bad feeling induced the widow to sell the disputed properties; (d) that the necessities mentioned in the two Kobalas for the sale of the disputed properties were fictitious; (e) that before the sale of premises No. 12 Mal Road, the widow in collusion with Harendra secured the signature of Harihar on a letter full of false statements; (f) that at that time the widow informed Harihar that out of the sale proceeds of premises No. 12, only Rs. 1000 would be paid towards the satisfaction of a debt and the balance would be invested in G.P. Notes (g) that the widow at that time did not disclose that she was going to sell the premises No. 3 Mal Road also; (h) that there was no legal necessity for sale of the two houses. The widow filed a written statement on 24 April 1930. Her defence was that she was not induced by Harendra to sell the properties. She also alleged that Haripada on account of his misunderstanding with his father was driven out by him from the ancestral dwelling house and as he had no other place of residence, he came to reside with her in her house at 10, Hem Chandra Street, Kidderpore and that he had been living there with his family per. manently from 1917 as member of her family and that he was looking after her estate as her agent. She further stated that Haripada induced her to execute the said two Kobalas by making certain false representations and that the consideration money mentioned in the two Kobalas did not pass at all.

(3.) The defence of Haripada, the purchaser, to this suit in substance is as follows: Premises Nos. 3 and 12 Mal Road and the widow's dwelling house at 10, Hem Chandra Street were in a very dilapidated condition for want of repairs for a long time. The Cantonment authorities at Dum-Dum passed orders to the effect that unless the two houses were properly repaired they would be demolished. The two houses at Dum-Dum remained vacant for the most part of the year and the taxes and other dues in the Cantonment had to be paid regularly. Income from the said two houses after meeting all the expenses was not more than Rs. 3000 or Rs. 4000 per year. The widow therefore was compelled to have the two houses at Dum-Dum as well as the residential house at Kidderpore repaired by a contractor named Ganesh Chandra Chatterjee. The bills of this contractor amounted to Rs. 10,040. Before these repairs the widow had premises No. 3 Mal Road repaired to some extent by another contractor named Upendra Nath Sen. His bill not having been paid a suit was brought by him against the widow and a decree for Rs. 2250 was obtained by him against the widow. He threatened to attach the dwelling house at Kidderpore in execution of this decree. The income of the properties left by her husband being insufficient to pay off these debts the reversioners advised her to sell the disputed properties. The reversioners were aware of the existence of the legal necessity and gave their consent to the sale of these two houses out of their own free will. The defendant was induced by their consent and conduct to purchase the two houses in dispute for valuable con. sideration. In that suit Harendra filed a written statement denying the allegations made against him by the plaintiffs in that suit. He supported the other allegations of the plaintiffs.