SM KARUNAMOYEE DEBI Vs. SMMAYA MOYI DEBI

JUDGEMENT

(1.) This appeal arises out of a suit brought by the appellant, Karunamoyee Debi to obtain a declaration that a deed of surrender executed by her and by her sister Mayamoyee Debi, defendant 2, on 2nd Baisakh 1343 B.S., corresponding to 15 4-1936, in favour of her son Mahadeb (defendant 1) and defendants 3 to 6 the sons of defendant 2, should be set aside, and that the estate left by her father, the late Bhabadeb Chatterjee, should be partitioned between her and her sister Mayamoyee. There was an alternative prayer that if the deed of surrender could not be set aside or the estate partitioned the plaintiff might be given maintenance at the rate of Rs. 100 per month charged on all the properties left by her father. By a subsequent application, a claim for right of residence in the residential house of Bhabadeb Chatterjee at Burdwan was included in the plaint.

(2.) The main facts of the case are not disputed and are as follows: Bhabadeb Chatterjee, father of the plaintiff, died on 14-8-1935, leaving the plaintiff Karunamoyee and defendant 2 Mayamoyee as his only heirs under the Hindu law. Prior to his death, he executed certain documents all of which were unregistered. The first was a will of the year 1923, the second a deed of gift dated 20-7-1935 in favour of Karunamoyee, the third will dated 22-7-1935, the fourth a deed of gift dated 24-7-1935, in favour of Mayamoyee, and the fifth a deed of trust dated 6-8-1935, appointing Dr. Debendra Nath Mukherjee, the husband of Mayamoyee, and certain other gentlemen as trustees. After his death, the plaintiff applied for probate of the wills, but probate was refused of the first because some pages were missing. No effect could be given to the deeds of gift or to the deed of trust as they were not registered. After Bhabadeb's death his property was looked after by Mahadeb, the plaintiff's son, and by Dr. Debendra Nath Mukherjee, the husband of defendant 2, and later an ammuktearnama was executed by both the sisters on 22-9-1935, in favour of Mahadeb for management of the entire estate. As Karunamoyee had been ill after her father's death she went to Puri for a change sometime in October 1935, and whilst there she had certain correspondence with her sister Mayamoyee and Mayamoyee's husband, Dr. Debendra Nath Mukherjee. It transpired that Mahadeb's management of the estate wag proving unsatisfactory. Karunamoyee returned to Calcutta about 19-3-1936, and on or about 22 a March, following, the ammuktearnama executed in favour of Mahadeb was cancelled. Thereafter, there was certain discussion with regard to the management of the property and eventually on 15 April 1936, Karunamoyee and Mayamoyee executed the deed of surrender, which forms the basis of this suit, whereby they surrendered the entire property left by their father in favour of their sons, defendant 1, and defendants 3 to 6 respectively. The property which was surrendered was included in a schedule and valued at Rs. 12, 718/-but there was a further provision that if any property had been omitted it would also be covered by the deed. By the surrender, Karunamoyee and Mayamoyee divested themselves of all their father's property, without any provision for maintenance. On the same day a deed of partition was executed by and between Mahadeb and defendants 3 to 6, the four sons of Mayamoyee, which purported to divide the property between them in proportion of one-fifth and four-fifths respectively. The properties which each would get were specified in schedules attached to the deed. The value of Mahadeb's share was stated to be Rs. 15,956 out of the total property which was valued at Rs. 80,115/-annas odd, the balance being the value of the property allotted to defendants 3 to 6.

(3.) It is the ease for the plaintiff that she signed the alleged deed of surrender without understanding or appreciating its contents, that the deed was neither read over nor explained to her and she had no independent advice in the matter. It is said that the plaintiff had absolute confidence in Dr. Debendra Nath Mukherjee, her sister's husband, and the latter having got the plaintiff's son Mahadeb over to his side, had the deed of relinquishment executed by the plaintiff representing to her that the document was absolutely necessary, to save the estate of her father from ruin. Following the deed of surrender the defendants, it is said, in collusion with each other created certain deeds of transfer and mortgage, and defendant 1, purported to transfer by way of sale or mortgage almost all the properties which he obtained on the basis of the deed of partition. Besides defendants 1 to 6 who were parties to the deed of surrender, the plaintiff impleaded as parties-defendants the subsequent purchasers or mortgagees of different item3 of property from Mahadeb and they are defendants 7 to 15 in the suit.