TAPABRATA CHAKRABORTY J. - (1.) This appeal is directed against the judgment and decree dated 9th December, 2011 passed by the Learned Civil Judge (Senior Division) at Sealdah in Title Suit No.151 of 2000.
(2.) The plaintiff, being the appellant herein preferred a suit for partition and accounts stating, inter alia, that late Balai Charan Das (hereinafter referred to as Balai), father of the parties to the suit, was the absolute owner of the schedule 'A' property having purchased the same by a registered deed dated 16th November, 1951. On the said purchased land, Balai constructed a four storied building. Prior thereto, apprehending legal complications that may arise from claims made by his step -mother, brothers and sisters, Balai purchased the schedule 'B' property in the name of his wife, namely, Smt. Chaya Lata Das (hereinafter referred to as Chaya) on 30th October, 1935 and constructed a two storied building from his own income and he let out a portion of the said building to tenants and collected rent. He also used to maintain the said building and pay the municipal taxes. Subsequent thereto, Balai died intestate on 9th May, 1969 leaving behind the parties to the suit as his legal heirs, who inherited both the properties in the schedules 'A' and 'B', as would be evident from the estate duty clearance and income tax return. On 17th June, 1988, Chaya and the proforma defendant nos.2 and 3 gifted their undivided full share in the schedule 'A' property equally to the plaintiff and the defendant no.1 and accordingly the plaintiff and the defendant no.1 became the joint owners of the schedule 'A'. Thereafter Chaya expired on 17th February, 96 and her undivided 1/5th share over schedule 'B' property devolved upon her heirs, being the parties to the suit. The proforma defendant nos. 2 and 3 relinquished their right, title and interest in the schedule 'B' property in favour of the plaintiff and the defendant no.1 orally and accordingly the plaintiff and the defendant no.1 also became the joint owners of the schedule 'B' property. The plaintiff and his family members are residing in the schedule 'B' property for the last sixty years and that after his marriage, he had constructed and built up the rest portion of the third story and a prayer room on the roof of the schedule 'B' property. The cause of action towards preference of the suit arose on 2nd June, 2000 when the plaintiff demanded the share of income of rent pertaining to the schedule 'A' property. From the written statement filed by the defendant no.1, the plaintiff for the first time came to learn about a fraudulent deed of gift executed by Chaya in favour of the defendant no.1. Such fact was incorporated in the plaint by way of amendment and a prayer was incorporated challenging the said deed of gift allegedly executed on 13th August, 1973. In support of the plaint case reliance has been placed upon 18 documents marked as Exhibit Nos.1 to 18 and to corroborate the contents of the plaint, deposition was tendered by the plaintiff.
(3.) The defendant no.1 entered appearance in the said suit and filed a written statement denying the averments made in the plaint and stating, inter alia, that Chaya purchased the schedule 'B' property which she got through her brothers out of money left by her parents, namely, Late Sushila Dasi and Late Rai Bahadur Bhupati Nath Das, who was the Principal of Dhaka Jagannath College and had a lucrative income and from her brothers, namely, Late Manindra Nath Das, who was the owner of a big press and Late Jitendra Nath Das, who was the then director of M/s. Mitsubishi, a big concern of Japan and who also had a manufacturing business. The property at 138/D, Dr. Lal Mohan Bhattacharyya Road was purchased by Balai in the benami of his eldest son being the plaintiff herein. Chaya gifted the schedule 'B' property in favour of the defendant no.1 by executing a deed of gift on 13th August, 1973. The fact of execution of such deed was very much within the knowledge of the plaintiff inasmuch as he objected to the mutation of the property and also demanded partition of the schedule 'B' property by an advocate's letter. The proforma defendant nos.2 and 3 did not have any share in the schedule 'B' property and that as such question of any oral relinquishment of their right in the schedule 'B' property in favour of the plaintiff or the defendant no.1 does not occasion. The defendant no.1 is the absolute owner of the schedule 'B' property and he collects rent from the existing tenants and also pays the corporation and electricity taxes. The plaintiff was residing in the schedule 'B' property as a licensee under the defendant no.1. In paragraph 19 of the written statement it has also been averred that the defendants never gave any estate duty over any property and they have never signed any estate duty form and their signatures in the said form are forged. In support of the averments made in the written statement reliance has been placed upon 9 documents marked as Exhibits 'A' to 'I' and to corroborate the contents of the written statement deposition was tendered by the defendant no.1.;