Joytosh Banerjee, J. - (1.) This appeal from appellate decree is directed against the judgment dated 12.6.90 passed by the Additional District Judge, 12th Court, Alipore, 24-Parganas(S), by which the learned appellate Court below allowed the appeal, set aside the judgment and decree passed by the Assistant District Judge, 8th Court, Alipore in T.S. 9/78 and dismissed the said suit.
(2.) The facts giving rise to the present appeal are as follows: The plaintiff/appellants filed the suit alleging, inter alia, that the suit property was purchased by all the 5 brothers, namely, Surendra Nath Mukherjee, Narendra Nath Mukherjee, Rajendra Nath Mukherjee, Debendra Nath Mukherjee and Jitendra Nath Mukherjee, who were the predecessor-in-interest of the parties of the suit. All of them contributes towards purchase and development of the suit property. The purchase was made in the name of one of the brothers late Rajendra Nath Mukerjee and tax bills also stood in his name. Later on, the said Rajendra Nath Mukherjee executed a deed declaring that of the aforesaid brothers had ⅕th share each in the said property. Although the suit property was a joint property, the defendants alone were realising the rent of the suit property from the tenants. In this background, the plaintiff/appellants were constrained to file the suit for partition and accounts. The defendants Nos. 1 to 4 (respondents) in the written statement denied the material allegations raised in the plaint and contended that the suit property was purchased by their predecessor late Rajendra Nath Mukherjee alone from his personal fund and during his lifetime rents and taxes were paid by the said Rajendra Nath Mukherjee. The alleged deed of declaration was never acted upon and was all along within the custody of the defendants and the same was made in order to avoid income tax hazards. Furthermore, the said Rajendra Nath Mukherjee before his death executed a Will on 11.6.69 and bequeathed the suit property to his wife for life.
(3.) The learned trial Court decreed the suit and declared respective shares of the parties. In doing so, the learned trial Court heavily relied on the deed of declaration Ext. N, which was admittedly executed by the alleged sole owner Rajendra Nath Mukherjee. The learned trial Court pointed out that the execution of the said document was not denied by the defendants, the successor-in-interest of the said Rajendra Nath Mukherjee. They only contended that the document was not acted upon and the same was prepared for the purpose of avoiding hazards of income tax, but the learned trial Court refused to accept that the document was prepared for avoiding hazards of income tax. On going through the recitals of the deed, namely, Ext. N wherein it was clearly stated that the property had been acquired by joint account of all the five brothers and admitted 1 /5th interest of each of the five brothers. In appeal, learned appellate Court found that there was no oral or documentary evidence to support the declaration that the suit property had been constructed by joint contributions of all the brothers. The learned appellate Court also pointed out that atleast one of the brothers who was alive at the time of trial of the suit and who was a witness (P.W. 1) admitted in his evidence that he was a student at the relevant point time when the suit property had acquired. Therefore, he found from such admission from P.W. 1 that there could not be any contribution from one of the brothers, namely, P.W. 1. He also pointed out that there was no evidence to show that taxes for the property were paid by the contribution from all the brothers. On the other hand, Rajendra Nath Mukherjee in whose name, the suit property was admittedly had an employment of a Sr. Charge-man in the Railways and a man of affluence. The learned appellate Court below further found that prior to the execution of the deed of declaration Ext. N there were some notices in respect of the suit premises served upon Rajendra Nath Mukherjee for payment of taxes. He also pointed out to certain exhibits showing that Rajendra Nath Mukherjee applied for House Building advance from office of the District Electrical Engineer, Kancharapara prior to the construction of the house. That apart, the learned appellate Court below relied on certain other document to come to an ultimate conclusion that it was not sufficiently proved that the deed of declaration on which the trial Court much relied in coming to a conclusion in favour of the plaintiff/appellant, was actually acted upon. After reaching at such a conclusion, the learned appellate Court below allowed the appeal and dismissed the suit as has been noted above.;