M.G.Mukherji, J. - (1.) The defendant Nos. 1(a) and 1(c) who are the son and widow of one Bejoy Krishna Ghosh, deceased, impugned in the present appeal the judgment and decree dated 23rd August, 1979 in Title Suit No. 127 of 1975 passed by the learned Judge, 12th Bench, City Civil Court Calcutta. By the said judgment and decree the suit for declaration of title and recovery of possession as filed by the plaintiffs Balailal Adak and Dr. Probhakar Chandra Mondal stood decreed against the present appellants and the respondent Nos. 3, 4 and 5, the heirs and legal representatives of the original defendant Bejoy Krishna Ghosh who died during the pendency of the suit. The suit property originally belonged to one Surendra Nath Ghosh. The said Surendra Nath Ghosh became the sole owner of the property situate at 27, Abinash Ghosh Lane by virtue of a deed of Partition effected amicably between his co-sharers and himself. On 13th January, 1929 the said Surendra Nath Ghosh executed a Will whereby he bequeathed the suit property of his wife Smt. Sukumari Dassi giving her a life estate in respect of the same but clearly giving out that on the death of his wife his only son Bejoy Krishna Ghosh Poali would be getting the said property in absolute right. It is an admitted fact that in 1931 the said Surendra Nath Ghosh died leaving behind him surviving his wife, Smt. Sukumari Dassi and his only son Bejoy Krishna Ghosh. On l0th of April, 1965 Bejoy Krishna Ghosh entered into an agreement to effect sale of the suit property in favour of Balailal Adak and took rupees five thousand (Rs. 5000) as a part of the consideration money. The agreement was a registered one (Ext. 2). On 9th June 1965 there was a further agreement between Bejoy Krishna Ghosh and Balailal Adak fu respect of the self same premises No. 27, Abinash Ghosh Lane (Ext. 2(a)) and a sum of rupees six thousand (Rs. 6000) was received by Bejoy Krishna at the time of agreement. This was also a registered document. On 20th July 1965 a registered deed of conveyance was executed by Bejoy Krishna Ghosh in favour of Balailal Adak and Dr. Probhakar Chandra Mondal for consideration of rupees twenty five thousand (Rs. 25000) and in the memo of consideration it was specifically given out that the vendor received towards earnest money on 10.4.65 a sum of rupees five thousand (Rs. 5000) and received another rupees six thousand (Rs. 6000) on 9.6.65 as part payment of the balance amount of consideration and there was a payment of the dues of one Anil Kumar Maity on account of the mortgage of the property which was effected by Bejoy on deposit of title deeds for which a sum of rupees five thousand one hundred and fifty (Rs. 5150) was paid. The memo of consideration further brought it out that a cash payment of rupees eight thousand eight hundred and fifty (Rs. 8850) was effected by the purchasers of Bejoy Krishna in 88 pieces of hundred rupees notes and 5 pieces of ten rupee notes. This registered deed of conveyance is Ext. 1 in the case. Ext. 1(a) is a draft copy of the selfsame deed of conveyance (Ext. 1) which was duly approved by Bejoy Krishna Ghosh. In the Deed (Ext. 1.); there was a stipulation regarding delivery of possession to the purchasers within one month from the date of execution of the document failing which the purchasers were given the liberty to take legal steps and proceedings against the vendor for getting vacant possession of the premises or any part thereof. In the said deed the existence of the Will was suppressed by Bejoy Krishna Ghosh and on the other hand, he gave out inter alia that his father Surendra Nath Ghosh died intestate in the year 1931 leaving him surviving as his only son and he was the sole heir and successor-in-interest to inherit the said premises No.27, Abinash Ghosh Lane. On 22nd November, 1965 Bejoy's mother Smt. Sukumari Dassi filed a suit for declaration in the original side of this Hon'ble Court that she was entitled to life estate of the suit premises by virtue of the Will. Bejoy Krishna Ghosh was made the defendant No.1 in the suit and the present plaintiffs Balailal Adak and Dr. Probhakar Chandra Mondal were the other defendants. The suit after a contested hearing was decreed on the 21st May, 1973 and it was ordered and decreed that the plaintiff was entitled to premises No. 27, Abinash Ghosh Lane for her life and she would be entitled to reside and enjoy the said property in an uninterrupted manner during her life time till her death and such enjoyment shall not in any way be interfered with by the defendants Balailal Adak and Dr. Probhakar Chandra Mondal. She will be entitled to realise rents, issues and profits from the suit property during her life time. It was further ordered and decreed that the court did not think it fit to make any order as against the defendant Bejoy Krishna Ghosh. On 11th of February 974 Bejoy Krishna filed Title Suit No.189 of 1974 in the City Civil Court at Calcutta for a declaration of his title and for permanent injunction. On 26th November 1974 Sukumari the mother of Bejoy Krishna Ghosh, died on 11 28th January 1975 the plaintiffs filed the present suit initially making a layer for delivery of possession by the defendant in respect of the suit premises, but subsequently amending the plaint the plaintiffs claimed declaration of title to the effect that the plaintiffs were the absolute owners of the suit premises under the conveyance dated 20th July, 1965 and also prayed for recovery of possession of the suit premises in Title Suit No. 127 of 1975 in the City Court at Calcutta. But on 2nd May 1975 Bejoy Krishna Ghosh died and the present appellants as also the respondents Nos. 3, 4 and 5 got themselves substituted as heirs and legal representatives of the deceased Bejoy Krishna Ghosh.
(2.) The defence inter alia of Bejoy Krishna was to the effect that the deed of conveyance in question was without consideration and it was an outcome of misrepresentation, coercion and fraud. The alleged conveyance was actually intended to be a power of attorney and since he was illiterate and a man of weak intellect and did not have any independent legal advice, the plaintiffs fraudulently represented to him that since he was given nothing by his father and everything was given to his mother and since his mother expressed her desire to effect a sale of the disputed property and to go out on a pilgrimage, he would be left with nothing. He was accordingly induced by the plaintiffs to a execute a power of attorney so as to enable them to fight out litigation on his behalf so that he might not lose the property. It is in that way the deed of conveyance was fraudulently obtained from him. The property was worth more than rupees two lakhs and it could not have been sold out for a sum of rupees twenty five thousand. The inadequacy of consideration itself was sufficient to prove that there was a fraud practised on him. The substituted defendants also filed a separate written statement supporting practically the averments in the original written statement filed by Bejoy Krishna Ghosh.
(3.) The plaintiff No.1 Balailal Adak examined himself as P.W. 1 in the case and proved the material averments in the plaint. He also proved the payment of consideration money on different dates. P.W. 2 was one Akshoy Kumar Mukherjee who was a practising Advocate. He testified to the effect that he drafted the deed of conveyance at the instance of Bejoy Krishna Ghosh in favour of the present plaintiffs. He also proved the facts and circumstances under which the draft was approved by Bejoy Krishna. He was also present at the time of registration of the conveyance (Ext. 1) to which he was a witness. Murari Mohan Ghosh, the son of Bejoy Krishna Ghosh, was alone witness examined on behalf of the defendants. His version was that his father used to reside at 19, Goabagan Street, Calcutta, with a concubine and he always used to be in a drunken state and did not have any capacity to execute any sale deed in respect of the disputed property. He estimated the valuation of the property to be about rupees seven lakhs and even at the relevant time of the transaction its value was about Rs. 2 to Rs. 2 1/2 lakhs. His evidence, however, was in the nature of hearsay when he testified to the effect that he heard from his father about the nature of the transaction. He was only aware that his father filed a suit for cancellation of the deed of conveyance and that suit was filed after the death of his paternal grandmother. Though after the death of his further, his heirs were substituted in his place in the said suit, they later on withdrew the same. He was not aware whether his father ever mortgaged the property to Anil Maity by depositing the title deeds.;