MANI DAS Vs. BHAGIRATHI DAS

JUDGEMENT

(1.) THIS second appeal has been preferred under section 100 of the Code of Civil Procedure by the defendants 1, 3 and 5 in T. S. No. 70 of 1991 against a confirming judgment. The aforesaid suit was filed by the respondents as plaintiffs seeking a decree for partition of the schedule 'A' properties claiming half share therein. By the time, the suit was filed, the defendant no. 2 Bhagirathi Das was a minor aged about 12 years and wasrepresented by his father guardian, defendant no.1. The factsadmitted by the parties are that the suit schedule 'A' properties isancestral properties of the family of the parties.

(2.) THE plaintiffs' case is that as per the genealogygiven in the consolidated plaint, Akura was the common ancestor,who had two sons, namely, Panu and Mani. Defendants 2, 3 and 4are the sons of Mani and defendant no. 5 is his widow. THEplaintiffs are three married daughters of Panu. THE plaintiffsclaimed that the schedule 'A' property measuring Ac.13.23decimals comprises the joint family ancestral properties leftbehind by Akura including some properties acquired by Panu andMani from the joint family nucleus throw into common hotchpotch. THEre has been no partition of the property by metes andbound between Panu and Mani. Panu had a son, who died at avery young age and, therefore, after marriage of the plaintiffs, Panuwas living with Mani, who with the intention to grab the entirejoint family properties, on the guise of mutating the purchasedproperties in their names, brought Panu to Khandapara andobtained a registered deed of adoption in favour of his eldest sonKubera - defendant no. 4. THE recital of the said document wasnever read over and explained to Panu and it was not scribed asper his instruction. Kubera - defendant no. 4 left the village in the year 1972 and his whereabouts were not known for more thanseven years for which he met a civil death. Panu lost his mentalbalance due to old age and taking advantage of the same, Maniwanted to grab the properties of Panu for which the plaintiffs madea publication in the local daily, "THE Samaja" on 27.8.1962regarding the same, cautioning that any one entering into anytransaction with Panu relating to their properties, the plaintiffs willnot be responsible for the same. Immediately thereafter, Panu wasbrought by Mani to Khandapara for execution of a registered deedof partition and on 6.10.1982 obtained the signature of Panu onthe registered deed of partition without disclosing the recitals tohim. In the said deed only Ac. 1.02 decimals of land were allottedto the share of Panu whereas Ac. 7.00 was allotted to Mani.According to the plaintiffs, such unequal distribution of propertiesmanifests perpetration of fraud. On the same day, Mani alsoobtained a registered deed of adoption-cum-gift in favour of his sonBhagirathi - defendant no.2, though defendant no. 2 was neveradopted by Panu nor was there any occasion for Panu to adoptBhagirathi when the earlier alleged adoption of Kubera - defendantno. 4, by Panu was subsisting. THEre was no giving and takingceremony as alleged to have been made on the 'Akhaya Trutiya'day of 1980. On the same day, Mani also obtained a registereddeed of cancellation of adoption of Kubera - defendant no.4, by Panu though there was no occasion for execution of such acancellation deed, as by that time Kubera had already met civildeath and no body had known his whereabouts for more thanseven years. Again on 15.5.1991, Mani brought Panu toKhandapara and in the guise of execution of a registered deed ofcorrection of earlier documents obtained a registered sale deed inrespect of the remaining property of Panu in favour of Bhagirathithough the same is a homestead land having a two storiedresidential house where Panu was residing and had no legalnecessity to alienate the same. Plaintiffs pleaded that the said saledeed is a sham and void document and there was no passing ofconsideration. During the settlement operation, Mani managed torecord his name in the settlement records. Hence, the suit forpartition.