- (1.) This appeal arises out of a suit for declaration by the plaintiff, Gita Rani Debi of her title to the suit land and that the kobala dated 27th Kartik 1351 B.S. executed by Bhanumati Debi in favour of defendant no. 1 Kartik Guha is without legal necessity and not binding on the plaintiff. The trial Court dismissed the suit. The appeal court having reversed, the defendant preferred the second appeal.
(2.) The case made out in the plaint is that the subject-matter of the land in suit are 1.10 acres land out of 1.45 acres of land in Dag No. 126 of Khatian No. 241 and the entire 43 decimals of land in Dag no. 60 of Khatian No. 243 of Mouja Jhiknara. The plaintiff's case is that the lands in suit belonged to plaintiff's father, Radhagobinda Sau. After his death these lands were inherited and possessed by his wife Bhanumati, an illeterate and pardanashin woman and her property was looked after by her brother, Kartik Guha, defendant no. 1. Bhanumati died in Agra-hayan 1355 BS. Thereafter the plaintiff inherited all the properties left by her father as the only heir. She attained majority and filed the present suit. It was alleged that the plaintiff inherited all the properties left by her father and the defendant no. 1 by exerting influence upon Bhanumati had got a kobala without consideration Executed by Bhanumati in his favour. It is further alleged that there was no legal necessity for the Kobala. The plaintiff's case is that the defendant no. 1 concealed the whole matter during the life time of Bhanumati who continued to possess the disputed lands but after Bhanumati's death when the plaintiff was in possession of the said lands he had executed a kobala without consideration in favour of defendant no. 2 Kumudbala. The defendant no. 2 was aware of the plaintiff's possession and the character of Bhan-umati's kobala in favour of Kartik. It is alleged that the revisional record of rights had incorrectly mentioned the defendant no. 2 as having title in the suit land and had mentioned plaintiff as having forcible possession in the same. The case, therefore, clouded the plaintiff's title and hence the plaintiff filed the present suit. It is further alleged that there was no legal necessity for the transfer as the plaintiff's marriage took place long after her mother's kobala in favour of Kartik and two other kobalas on the same date were untrue. The defendant no. 2 filed a written statement opposing the plaintiff's claim and her defence, inter alia, was that the suit was not maintainable and the suit was barred by limitation under the proviso to section 42 of the Specific Relief Act. It was further denied that Bhanumati was an illiterate and pardanashin woman and that her property was looked after by her brother Kartik for guidance and that Kartik exerted influence upon Bhanumati in getting the disputed kobala executed. It is stated that the sale was for legal necessity and the plaintiff's marriage occurred on 5th Agraahyan 1351 B.S. The defendant no. 2 was a bonafide purchaser for value. It is stated that the revisional record of rights is not correct in so far as the plaintiff's possession is concerned. The court of first instance dismissed the suit whereupon the plaintiff preferred an appeal. The appeal having been allowed the defendant preferred the present appeal. The Trial Court held, inter alia, that Bhanumati was not an absolute owner of the property and Gita Rani was a minor at the time when the three kobalas dated 27th Kartick 1351 B.S. were executed. Gita Rani attained the majority on 12th March, 1956 and should have filed the suit on 12th March, 1959 and as such the suit was time barred. The court of appeal below however found that the suit was not time barred under the Art. 120 of the Indian Limitation Act. In respect of the issue regarding the right, title and interest in the disputed property it has been held that there was no undue influence exerted upon Bhanumati. Bhanumati was not a pardanashin lady and there was no fraud in the matter of execution of the document. It was further held that there was a legal necessity for execution of the document, Ext. A, kobala. The legal necessity was that the plaintiff herself was married in early part of Agrahayan 1351 B S. after the kobala was executed in 27th Kartik 1351 B. S. and the expense of the marriage was borne by the plaintiff's mother out of the consideration money obtained by skiing this property. The Trial Court held that the plaintiff is in possession of the suit land and the suit is not barred under section 42 of Specific Relief Act. It was held further that Bhanumati was a pardanashin lady and the kobala was executed without legal necessity and at the influence of Kartik. The plaintiff was married sometime in Agrahayan 1352 B.S. and as such there was no legal necessity for the transfer. Being aggrieved by the said judgment of the appeal court, the defendant preferred the second appeal.
(3.) Mr. Mukherjee on behalf of the appellant contended that the suit is barred by limitation and that the suit is not maintainable. In view of the fact, no declaration was prayed for and therefore the suit is barred under section 42 of the Specific Relief Act.;